Madras High Court
State Of Tamil Nadu Rep. By vs N.Vijayakumar on 28 August, 2020
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A(MD)No.6 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 17.12.2019
PRONOUNCED ON : 28.08.2020
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A(MD)No.6 of 2015
State of Tamil Nadu rep. by,
The Public Prosecutor,
High Court,
Madras – 600 140. ... Appellant
Vs.
N.Vijayakumar ... Respondent
Prayer: Criminal Appeal filed under Section 378 of Cr.P.C., praying to
allow the appeal, set aside the judgment of acquittal passed by the
Special Judge for trial of Prevention of Corruption Act, Cases, Madurai
in Spl.C.C.No.49 of 2011, dated 25.02.2014 and convict and sentence the
respondent/accused.
For Appellant : Mr.M.Chandrasekaran
Additional Public Prosecutor
For Respondent : Mr.V.Kathirvelu, Senior Counsel
for Mr.K.Prabhu
*****
JUDGMENT
This Criminal Appeal arises out of the judgment of acquittal rendered by the learned Special Judge, Special Court for trial of Prevention of Corruption Act Cases, Madurai in Special C.C.No.49 of 2011 dated 25.02.2014.
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2.The appellant filed a charge sheet against the respondent for offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. The trial Court on conclusion of trial, acquitted the respondent by Judgment dated 25.02.2014 in Special C.C.No.49 of 2011.
3(i)The brief facts of the case is that the respondent was working as Sanitary Inspector in Corporation of Madurai from July 2001 to 10.10.2003 and he was in-charge of Ward No.8. M/s.Neat and Clean Service Squad (hereinafter called as “NACSS”), a private organization was entrusted with the task of providing and engaging work for door to door collection and conveyance of waste to the dumper binds. Every month, the corporation will pay wages for the workers employed by the said NACSS at the rate of Rs.69/- per day. The work was entrusted on 04.05.2002 for one year upto March 2003. The Sanitary Inspector, Ward No.8 and the Circle Sanitary Officer, North Zone will coordinate with NACSS and work for the implementation of the scheme. After executing the work, the bills for the period from 04.05.2002 to 31.03.2003 were submitted and paid. The bill for the month of April and May 2003 amounting to Rs.20,800/- and Rs.21,390/- respectively were not paid by http://www.judis.nic.in Page 2 of 39 Crl.A(MD)No.6 of 2015 the Corporation, though claims have been made by the said NACSS. This amount was not paid, since the extension for work period was not issued. Further, for the representation of NACSS, the same was forwarded to the Assistant Commissioner and Chief Health Officer Corporation of Madurai who had forwarded the same to the respondent, Sanitary Inspector, Ward No.8 for his recommendation and to certify the proof of work. On 09.10.2003, at about 11.00 a.m., PW2/defacto complainant and his co-worker Ravikumaran/PW5 approached the respondent, at that time the respondent made a demand of Rs.500/- and a mobile phone for expeditiously processing and giving recommendation. PW2 informed that NACSS being a service organization and they will not be in a position to meet out the demand. The respondent reiterated his demand and stated that unless the demand is paid by 10.10.2003 evening, the file would not be processed.
(ii)PW2 informed his Manager/PW6, who informed the same to President of the Organization/PW7, who instructed them to lodged a complaint to the Vigilance and Anti Corruption. Thereafter, PW2, his co-worker/PW5 and Manager/PW6 had gone to the Vigilance and Anti Corruption office on 10.10.2003 at about 12.30 p.m., lodged a complaint http://www.judis.nic.in Page 3 of 39 Crl.A(MD)No.6 of 2015 with PW11, who after verifying the credentials of the complaint and the respondent, registered an FIR [Ex.P6] and enlisted the service of PW3 and one Natarajan. Thereafter, the importance of the trap and phenolphthalein test were explained. The trap team reached the office of the respondent at about 04.45 p.m., at that time the respondent was not available. After the respondent reached the office at about 05.45 p.m., PW2, PW3 and PW5 entered the office and requested the respondent to process the file expeditiously. The respondent reiterated the demand, PW2 handed over the bribe amount of Rs.500/- and a mobile phone which was received by the respondent, counted the money and kept the bribe money and mobile phone in his right side table drawer.
(iii)Thereafter, PW5 came out and gave pre-arranged signal. PW11 along with his trap team entered into the office of the respondent. PW2 and PW3 identified the respondent and the place where the bribe amount and cell phone were kept. Thereafter, PW4 and another officer, who are superiors to the respondent were summoned. In their presence, the respondent's hands were subjected to phenolphthalein test which turned positive. The hand wash was collected in a bottle. Thereafter, the bribe amount [MO1] and cell phone [MO2] were produced by the http://www.judis.nic.in Page 4 of 39 Crl.A(MD)No.6 of 2015 respondent which were seized and Recovery Mahazar [Ex.P10] and Rough Sketch [Ex.P11] were prepared. The respondent was arrested at about 07.10 p.m. and his house was also searched and some seizures were made. The investigation was handed over by PW11/TLO to PW12, who after examination of witnesses, collection of documents, receiving forensic reports and sanction for prosecution from PW1, filed the charge sheet before the trial Court.
(iv)During trial, the prosecution had examined PW1 to PW12, marked the documents Ex.P1 to Ex.P17 and material objects MO1 to MO4. On the side of the defence, no witness was examined, the respondent, marked Ex.D1 to Ex.D3. The learned trial Judge on conclusion of trial found the appellant had not proved the case against the respondent beyond reasonable doubt and acquitted the respondent from the above case, against which the present appeal is filed by the appellant.
4(i)The contention of the learned Additional Public Prosecutor http://www.judis.nic.in Page 5 of 39 Crl.A(MD)No.6 of 2015 is that the trial Court failed to consider the evidence of PW2 and PW5, who have clearly proved the earlier demand made by the respondent on 09.10.2003. On 10.10.2003 in the presence of PW2, PW3 and PW5, the respondent again reiterated his demand and received the bribe amount of Rs.500/- [MO1] and a mobile phone [MO2] from PW2. Thereafter, kept the money and the cell phone in his right side table drawer. PW11 along with trap team after getting pre-arranged signal entered the office of the respondent and in presence of PW3 and PW4, PW11 prepared Seizure Mahazar [Ex.P10] and conducted phenolphthalein test on the hands of the respondent, which proved positive and the same has been confirmed by the Forensic Department. Hence, in this case the demand, acceptance and recovery of bribe amount have been clearly proved by cogent evidence both by oral and documentary. Despite the same, the trial Court acquitted the respondent, which is not as per established principles of law.
(ii)It is further contended by the learned Additional Public Prosecutor that the conclusion of trial Court that PW3 and PW5 are dependent and not independent witnesses is without any material. PW3 was working as P.A to Principal of the Government Polytechnic College, http://www.judis.nic.in Page 6 of 39 Crl.A(MD)No.6 of 2015 Madurai and he is an independent witness, his evidence to be accepted. PW3 has categorically stated about the demand and receipt of bribe amount by the respondent. Further the recovery proceedings have been conducted in the presence of PW3 as well as PW4. PW4 is the Circle Sanitary Officer of Madurai Corporation, a Superior Officer to the respondent and witness for recovery, has got no axe to grinde against the respondent. Thus the entrustment receipt and recovery are proved in this case, on the contrary, the trial Court has given a wrong finding as though the demand and recovery are not proved.
(iii)Further the trial Court failed to look into the fact that the presumption under Section 20 of the Prevention of Corruption, 1988 is against the respondent. The respondent had not probablized his defence in this case. The trial Court placed heavy reliance on the violations of the Vigilance manual, failing to look into the fact that the Vigilance manual is only for the officer of the Vigilance Department which does not have force of law. The Hon'ble Apex Court as well as High Courts in catena of judgments time and again stated that the violation of Vigilance manual may lead to action against the erring officers and it could not be construed as violation in investigation. Hence, the finding of the trial http://www.judis.nic.in Page 7 of 39 Crl.A(MD)No.6 of 2015 Court is erroneous, perverse and is not sustainable both on facts and in law.
(iv)The trial Court had given a finding that PW2, the decoy witness had given inconsistent version with regard to the meeting of the respondent prior to the first demand, which is of no significance. Further without any material the trial Court had given a finding that PW2 was ill- treated by the respondent several times and hence, there was motive against the respondent. The trial Court had misread the evidence and given a finding that TLO/PW11 asked the respondent to handle the bribe amount and cell phone kept in the right side table drawer and thereafter, the phenolphthalein test was conducted on the hands of the respondent. The phenolphthalein test turned positive on the hand wash of the respondent which was brushed aside by the trial Court is not proper. PW3, PW4 and PW9 have categorically stated that the phenolphthalein test was conducted first in the hand of the respondent and thereafter, only the respondent was asked to produce the tainted money [MO1] and cell phone [MO2], which is also recorded in Recovery Mahazar [Ex.P10].
(v)Further the lower Court on a wrong premise given a finding http://www.judis.nic.in Page 8 of 39 Crl.A(MD)No.6 of 2015 that the demand in this case was not proved and further given a reasoning that on the basis of recovery alone the respondent cannot be convicted. This finding is contrary to the evidence of PW2, PW3 and PW5. The cogent evidences of PW2, PW3, PW4, PW5, PW9 and PW11 proved the demand, acceptance and recovery of tainted money [MO1] and cell phone [MO2]. The respondent had not dislodged the statutory presumption in any manner. Further the lower Court had given undue weightage and importance for minor discrepancies which only proves that the witnesses were natural and truthful. In view of the evidence available both oral and documentary against the respondent, the lower Court ought to have convicted the respondent. Hence, the judgement of acquittal to be set-aside.
(vi)In support of his contention, the learned Additional Public Prosecutor relied upon the following citations:-
● Krishna Ram Versus State of Rajasthan reported in (2009) 11 Supreme Court Cases 708.
● State represented by the Deputy Superintendent of Police, Vigilance and Anti Corruption, Tirunelveli. ● Guruviah Versus the State represented by the Inspector of Police. ● State of Gujarat Versus Navinbhai Chandrakant Joshi and others http://www.judis.nic.in Page 9 of 39 Crl.A(MD)No.6 of 2015 reported in (2018) 9 SCC 242.
● Mukhtiar singh Versus State of Punjab.
● State of Andhra Pradesh Versus P.Venkateshwarlu reported in
(2015) 7 SCC 283.
● M.Narsinga Rao Versus State of Andhra Pradesh reported in
(2001) 1 SCC 691.
● S.Nagoor Hussain Mohaideen Versus State represented by the
Inspector of Police, Vigilance and Anti Corruption, Thoothukudi. ● State of Madhya Pradesh Versus Shambhu Dayal Nagar reported in CDJ 2006 SC 900.
● K.Selvaraj and others Versus the State reported in 2004 SCC OnLine Mad 931.
● Duraimurugan Versus State represented by the Deputy Superintendent of Police, Vigilance and Anti Corruption, Vellore reported in 2013 SCC OnLine Mad 30.
● Thyagarajan Versus State by the Inspector of Police, Vigilance and Anti Corruption City Special Unit-III, Chennai reported in 2017 SCC OnLine Mad 4620.
● Ramalingam Versus State represented by the Inspector of Police, Vigilance and Anti Corruption, Nagapattinam reported in 2017 SCC OnLine Mad 23740.
5(i)The learned senior counsel for the respondent/accused submitted that the Hon'ble Apex Court in catena of judicial http://www.judis.nic.in Page 10 of 39 Crl.A(MD)No.6 of 2015 pronouncements had laid down the broad guidelines with regard to approach in acquittal appeals. Thus when the view taken by the Court below is a possible view and it could be reasonable or arrived at basis of evidence and materials it does not call for any interference even if the other view is possible. The use of the expression “possible view” is concious and not without good reasons, which is in contradistinction to expression such as “erroneous view” or “wrong view”. A “possible view” denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A conclusion of the higher Court would not take the view rendered by the subordinate Court outside the arena of a possible view. The view taken by the trial Court cannot be interdicted and supplanted over and above the view of the trial Court.
(ii)The learned senior counsel for the respondent placed reliance on the judgment of the Hon'ble Apex Court in the case of “Ghurey Lal Versus State of Uttar Pradesh” reported in “2008 10 SCC 450 and submitted that the Appellate Court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so and the very substantial compelling http://www.judis.nic.in Page 11 of 39 Crl.A(MD)No.6 of 2015 reasons exist when:-
(i) The trial court's conclusion with regard to the facts is palpably wrong; The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to result in “grave miscarriage of justice”;
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
(iii)The Appellate Court must always give proper weight and consideration to the findings of the trial Court. The learned senior counsel for the respondent further reiterated that if two reasonable views can be reached-one that leads to acquittal, the other to conviction-the http://www.judis.nic.in Page 12 of 39 Crl.A(MD)No.6 of 2015 High Courts/appellate Courts must rule in favour of the accused. The appellate Court not to ignore the fact that the presumption of innocence in favour of the respondent/accused is further strengthened by an order of acquittal. On the above background, the learned senior counsel further submitted that in this case, there is motive between PW2 and the respondent, which is admitted by PW2. PW5 is a witness to the trap, who is none other than the co-employee of PW2. PW3 though projected as independent witness, he is not aware of the motive and the source of trap money [MO1] and mobile phone [MO2]. PW3 merely stated that he was directed by his Principal to report before the Vigilance and Anti Corruption Office and he did so. PW3 part of raiding party and he is not an independent witness. Further there is clear violation of Vigilance manual and its guidelines. PW3 is a witness fetched by PW11/TLO.
Hence, PW2 and PW5, a co-employee of PW2 are motivated and interested witnesses and their testimony cannot be relied upon. Further the presumption under Section 20 of the Prevention of Corruption Act is not an inviolable one, it can be rebutted either through cross examination of the witness or by adducing reliable evidence.
(iv)The learned senior counsel for the respondent further submitted that the principles of law is that to prove the allegation of http://www.judis.nic.in Page 13 of 39 Crl.A(MD)No.6 of 2015 demand and acceptance of bribe by the accused person, the evidence of complainant/decoy cannot be safely acted upon in the absence of some independent corroborative evidence. In such a situation, the bribe giver is normally treated as no better than an accomplice and so his evidence needs corroboration form an independent source. The same is to be attached to the evidence of the shadow witness especially when he is not proved to be an independent witness. Independent corroboration to the evidence of such witness is generally required by the Court, if not as a rule of law, then at least as a rule of caution and prudence. In support of his contention he relied upon the decision in “Gurucharan Singh Versus the State of Haryana reported in 1994 Crl.L.J 1710.”
(v)In this case, the appointment of PW2 and PW5 in NACSS is not proved. It is admitted by PW2 and PW5 that no documents have been produced by them to show that they are employees of NACSS. PW2 admitted that Exs.P2 & P3, attendance register extract of NACSS employees, is not signed or authenticated by him. In the complaint [Ex.P5], there is no mention about on which dates, he had earlier met the respondent with regard to process the file expeditiously for work period extension. In Ex.P4, the letter dated 19.06.2003, PW2 has not signed. http://www.judis.nic.in Page 14 of 39 Crl.A(MD)No.6 of 2015 The letter which is addressed to the Commissioner of Corporation is PW6. PW2 admitted that there was some animosity with the respondent. In view of the same, the probability of making demand of money from PW2 is highly impossible.
(vi)It is admitted by the appellant that the payment from 04.05.2003 to March 2003 has been made. Only for the period of April and May 2003, the payment could not be made, since the extension work order has not been issued. It is further admitted that the extension work order has to be issued by the Commissioner of Corporation and the respondent is not authority for the same.
(vii)The learned senior counsel for the respondent further submitted that though NACSS has stated that the conservancy work for Ward No.6, Ward No.8 and Chithra Street was allotted to them, except for Chithra Street, the work was not extended for other wards. The respondent was posted in the Government Rajiv Gandhi Hospital for issuance of birth and death certificate and ward No.8 is looked by him as additional charge from May 2003. PW2 admitted that the submission of bills and communication with regard to the same are the Assistant http://www.judis.nic.in Page 15 of 39 Crl.A(MD)No.6 of 2015 Commissioner office and the Corporation Commissioner and it is not his duty. PW2's duty is to supervise the ten conservancy workers engaged by NACSS in ward No.8. In view of the same, the meeting of PW2 and PW5 on 09.10.2003 and the alleged demand made by the respondent is highly improbable. It is admitted that on 10.10.2003 when PW2, PW3 and PW5 reached the office of the respondent, the respondent was not available in the seat and after one hour later, he had come to the office at about 05.45 p.m. It is admitted that during the absence of the respondent, there was unrestricted movement of people in and out of the office, the probability of planting MO1 and MO2 in the drawer of the respondent is probable. At about 06.10 p.m., when PW11 and other trap team members entered the room of the respondent no time was given for any explanation. It is admitted that the explanation of the respondent was not recorded. From Ex.P11, the Rough Sketch it is seen that except starmark denoting the scene of occurrence, there are no details available which is in violation of Vigilance Manual. Further though the trap team entered into the office of the respondent till arrival of PW4 at about 07.00 p.m., no steps was taken for recovery, which is against the normal conduct. For almost 50 minutes what was the investigation done, no explanation or reason given for the same.
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(viii)It is the case of the respondent that MO1 had been implanted in his absence and the respondent was forced to handle the tainted money. Hence the hand wash of the respondent turned positive. The payment for the month of April and May 2003 had been made. The evidence of PW8 is that there is no time limit fixed to process the files, NACSS is in the habit of presenting their bills belatedly. In this case the delay in payment is only due to belated presentation of bills. The delay in issuance of work period extension order was not due to the respondent. It was not within the powers of the respondent to grant period of extension order. The evidence of PW6 & PW7 are contradictory to the evidence of PW2. PW6 admitted MO1 and MO2 belongs to NACSS, on the other hand PW2 stated that MO1 was his personal money and MO2 was handed over by PW6. PW6 though had signed in Ex.P5 as witness, for what reason he left the Vigilance and Anti Corruption after lodging the complaint. PW2 was compelled by PW6 and PW7 to lodge a complaint and depose against the respondent.
(ix)PW7 stated that he asked PW6 to lodge a complaint. PW6 stated that he had come along with PW2 and PW5 while lodging the http://www.judis.nic.in Page 17 of 39 Crl.A(MD)No.6 of 2015 complaint. PW6 and PW7 admitted that they were not given extension of work and the extension of work order is to be given only by the Commissioner of Corporation and not by the respondent. PW12 the investigation officer admitted that PW2 has given exaggerated version and there have been lot of improvement and contradiction in his statement. PW2 to cause prejudice and to project the respondent in a bad light has given a exaggerated version, which PW12 also admitted the same. Thus, it would prove that PW2 is a motivated witness against the respondent. PW11 admitted that he had not followed the Vigilance Manual. The guidelines in Vigilance Manual is to have a check and control and to safeguard the public servant from motivated complaint for oblique reasons. That is the reason immediately after the trap, the explanation offered by the respondent has to be recorded. Further a photographic recording of what transpired before and during handing over of the bribe amount, the seating position have to be clearly recorded in rough sketch. In Ex.P11, there is no mention of these facts. More so, MO1 and MO2 had been taken from the table drawer and not from the person. Added to it, PW11 admitted that for nearly one hour, the respondent was not available in the office and they were keeping a watch. During that time, lot of people used to be in and out of the office http://www.judis.nic.in Page 18 of 39 Crl.A(MD)No.6 of 2015 of the respondent. Hence, planting of MO1 and MO2 is possible. The recovery proceedings was not commenced immediately waiting for arrival of PW4, which is uncalled for.
(x)PW3 is categorical that he is not aware for what reason MO1 and MO2 were handed over. PW4, the witness for the recovery stated that he reached the respondent's office at 07.00 p.m and he was not aware what transpired before his arrival. PW8, the Assistant Commissioner of Corporation stated that the delay in processing of bills of NACSS is only due to their belated presentation and the files and bills have to pass through various officers and the respondent is not the authority for extending the work period. The trial Court on considering all these aspects on a proper scrutiny both oral and documentary evidence which had the benefit of examining the witnesses in person and after detailed analysis, rendered the judgment of acquittal which need not be interfered with.
(xi)In support of his contention, the learned senior counsel for the respondent relied upon the following citations:-
http://www.judis.nic.in Page 19 of 39 Crl.A(MD)No.6 of 2015 ● M.Rajendran Versus State, rep. by the Deputy Superintendent of Police, Vigilance and Anti Corruption, Cuddalore reported in 2011 (1) MWN (Cr.) 602.
● Mohammed Akhtar @ Kari @ Ors. Versus State of Bihar @ Anr.
reported in 2019 SAR (Criminal) 221 Supreme Court. ● State of Gujarat Versus Dahyabhai Hirabhai Solanki. ● Abdul Kathar Versus State, represented by Inspector of Police, Vigilance and Anti Corruption, Nagercoil, Kanyakumari District reported in (2019) 1 MLJ (Crl) 122.
● Som Prakash Versus State of Punjab reported in AIR 1992 SC 665. ● C.M.Girish Babu Versus CBI, Cochin, High Court of Kerala. ● G.Kothandan Versus State, rep. by the Inspector of Police, Vigilance and Anti Corruption, Chennai City Circle-II reported in (2019) 1 MLJ (Crl) 357.
● G.Sithivinayagamoorthy and Anr. Versus State through the Inspector of Police, Vigilance and Anti Corruption Unit, Virudhunagar District reported in (2019) 1 MLJ (Crl) 61. ● State represented by the Inspector of Police, Vigilance and Anti Corruption Wing, Tiruchirapalli reported in (2019) 3 MLJ (Crl) 249. ● K.P.Kolanthai Versus State by Inspector of Police, Anti Corruption Wing, Dharmapuri reported in (2019) 3 MLJ (Crl) 713. ● A.S.Kannan Versus State by the Inspector of Police, Vigilance and Anti Corruption, Chennai City II Detachment, Chennai. http://www.judis.nic.in Page 20 of 39 Crl.A(MD)No.6 of 2015
6.This Court considered the rival submissions and perused the materials available on record.
(i)In this case, PW1 is the Commissioner, Corporation of Madurai and accorded Ex.P1, Sanction order. PW2 is the decoy witness. PW3 is the accompanying official witness. PW5 is the co-employee of PW2. PW6 is the Manager and PW7 is the President of PW2's Organization. PW4 is the Circle Sanitary Inspector and PW8 is the Assistant Commissioner and they are superior officers of the respondent. PW9 is the Scientific Officer from the Forensic Department. PW10 is the Head Clerk of the Special Court for trial of Prevention of Corruption Act Cases, Madurai. PW11 is the Trap Laying Officer and PW12 is the Investigating Officer.
(ii)The respondent, Sanitary Inspector of Madurai Corporation was given incharge of Ward No.8. PW2's organization NACSS was entrusted with the work of door to door collection and conveyance of waste to the dumper binds, for which they were paid by the Corporation. PW2 was the supervisor for Ward No.8 and under him ten conservancy workers were executing the work. Their attendance extract is submitted http://www.judis.nic.in Page 21 of 39 Crl.A(MD)No.6 of 2015 to the Corporation officials, who on verification would pay accordingly. The respondent a Sanitary Inspector has to oversee the conservancy work executed by NACSS. The payment for the work from 04.05.2002 to March 2003 was paid. Since the corporation had not given any order to stop the work, NACSS continued with the conservancy work. The bills for the month of April and May 2003 were presented which could not be processed for the reason, work period extension order was not obtained by them. NACSS made several representations to the Commissioner of Corporation, Madurai and one such representation is Ex.P4, dated 09.06.2003, which was forwarded to the Assistant Commissioner office, who has to give his recommendation and certificate. Since it got delayed, PW2 and PW5 approached the respondent on 09.10.2003, at that time the respondent demanded Rs.500/- as bribe and a mobile phone for expeditiously processing the file.
(iii)PW2 informed NACSS is a Service Oriented Organization and they would not be in a position to meet the demand. The respondent was categorical that unless the demand is fulfilled, the file would not be processed. PW2 informed his Manager PW6 who in turn informed PW7, the President of the Organization. On instructions of PW7, PW2 http://www.judis.nic.in Page 22 of 39 Crl.A(MD)No.6 of 2015 accompanied by PW5 and PW6 approached the respondent, lodged a complaint on 10.10.2003 at about 12.30 p.m to PW11. PW11 made discrete enquiry on the credentials of PW2 and the respondent. Thereafter, on informing his superior officers registered an FIR, enlisted the official witnesses PW3 and one Natarajan. Thereafter, entrustment proceedings were demonstrated and recorded in Mahazar Ex.P7. Thereafter, the trap team left to the office of the respondent. Since the respondent was not available, PW2, PW3 and PW5 waited for him. At about 05.45 p.m., the respondent reached the office. PW2, PW3 and PW5 approached him at that time, the respondent again reiterated his demand and PW2 handed over the tainted money [MO1] and mobile phone [MO2] to the respondent who received the same, counted the cash by both hands and kept the same in his right side table drawer. As instructed earlier, PW5 came out and gave pre-arranged signal at about 06.10 p.m. On seeing the same, PW11 along with trap team entered the office of the respondent, PW2, PW3 identified the respondent to whom the bribe amount was paid and also the place where MO1 and MO2 were kept. Thereafter PW2 and PW5 were asked to leave the office. PW3 confirmed the version given by PW2 and thereafter, PW4 superior of the respondent was summoned to be witness for recovery. PW4 along with http://www.judis.nic.in Page 23 of 39 Crl.A(MD)No.6 of 2015 another officer had come and recovery proceedings commenced at about 07.00 p.m. On arrival of PW4 in presence of PW3 and trap team, the hand wash of the respondent was taken, which turned pink in colour, confirming the respondent had received MO1 and MO2. The hand wash was sent to Forensic examination, PW9 examined the same and given report Ex.P17. The respondent was asked to produce MO1 and MO2, which he did so. Thereafter, the recovery mahazar Ex.P10 was prepared and he was arrested and his house was searched. PW11 handed over the investigation to PW12. PW6 and PW7, the Manager and President of NACSS have stated about the work allotted to them and they were awaiting the extension order which was to be recommended by the respondent and the demand made by the respondent, which was informed by PW2 not willing to pay the bribe. PW7 instructed PW2 and PW6 to lodge a complaint. Thus in this case, the demand made by the respondent to PW2 on 09.09.2003 in the presence of PW5 had been proved. Thereafter, the receipt of bribe amount MO1 and mobile phone MO2 in presence of PW2, PW3 and PW5 have been proved by these witnesses. Though elaborate cross examination of prosecution witnesses has been made during trial, the respondent could not discredit and make out a case. On the other hand, the evidence of PW2, PW3 and PW5 are http://www.judis.nic.in Page 24 of 39 Crl.A(MD)No.6 of 2015 cogent, reliable and clearly proved the fact that the respondent had made the demand and accepted the bribe. Thereafter, the recovery has been proved by the evidence of PW3, PW4 and PW11. Thus, by cogent evidence both oral and documentary, the prosecution had proved the demand, acceptance and recovery.
(iv)The contention of the learned senior counsel for the respondent that the Commissioner is the authority for issuance of work period extension order cannot be countenanced for the reason that PW4 and PW8 clearly stated that the recommendation has to be made by the concerned Sanitary Inspector and further it is proved that the recommendation till the date of the trap was not made by the respondent. From Exs.P12 to P14, this fact is further confirmed. The other contention of the learned senior counsel for the respondent that Ex.D1, dated 06.06.2003 is a certificate with regard to clearance of garbage for the month of May 2003. Ex.D2 is a letter dated 29.10.2003 seeking extension of work order and Ex.D3 dated 31.07.2002 is a requisition for payment for the month of May, June and July 2003. Exs.D1 to D3 no way improves the case of the respondent.
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(v)The further contention of the respondent that Ex.P11, the Rough Sketch is without particulars and further no statement was recorded from the respondent after the trap. In the absence of showing any prejudice caused and further this Court on several occasions had held that the Vigilance Manual is only Directory and not Mandatory and violation of not following the manual, action is to be taken against the violating officer and nothing more.
(vi)The respondent during questioning under Section 313 Cr.P.C., for all the questions, he had given a formal denial and finally, he had given explanation that he was only holding Additional Charge of Ward No.8 as Sanitary Inspector and since NACSS was continuing the conservancy work even after the period allotted to them, which was informed by him to his superior officers and hence, they had motive for this reason, he had been framed in a false case, as though he had demanded and received MO1 and MO2. Other than this explanation he had not given any explanation with regard to the prejudice caused to him in not following the vigilance manual and also the alleged motive against him.
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(vii)The Hon'ble Apex Court in the case of M.Narsinga Rao Versus the State of A.P reported in (2001) 1 SCC 691, had analysed and given a finding with regard to compulsory presumption envisaged in Section 20 of the Prevention of Corruption Act, 1988, it would be gain said to extract the same:-
“8. Mr L. Nageswara Rao, learned counsel for the appellant adopted a twin contention. First is that the presumption under Section 20 of the Act could be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant accepted or obtained gratification. That premise cannot depend on an inference for affording foundation for the legal presumption envisaged in Section 20 of the Act, according to the learned counsel. The second limb of his contention is that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification. Prosecution has a further duty to prove that what was paid amounted to gratification, contended the counsel.
9. In support of the first contention, learned counsel relied on the decision of a two-Judge Bench of this Court in Sita Ram v. State of Rajasthan [(1975) 2 SCC 227 : 1975 SCC (Cri) 491] . It was held by the Bench that:
(SCC p. 232, para 10) http://www.judis.nic.in Page 27 of 39 Crl.A(MD)No.6 of 2015 “On mere recovery of certain money from the person of an accused without the proof of its payment by or on behalf of some person to whom official favour was to be shown the presumption cannot arise.”
10. The said observation was made in the background of a finding made by the High Court in that case that the evidence of the witnesses was not reliable and particularly because “so many jerks and jolts seem to have been given to the prosecution case by contradictory and hostile statements of the witnesses that a good part of it had to be rejected by the High Court”. (SCC p. 231, para 9) That decision and the observation could thus confine to the facts of that case, and no legal principle for future application could be discerned therefrom.
11. Learned counsel then relied on another decision of a two-Judge Bench of this Court in Suraj Mal v. State (Delhi Admn.) [(1979) 4 SCC 725 : 1980 SCC (Cri) 159] wherein the Bench observed that: (SCC p. 727, para 2) “In our opinion, mere recovery of 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.” In that case also the said finding depended upon the veracity of the testimony of the witnesses. But the contention raised by the learned http://www.judis.nic.in Page 28 of 39 Crl.A(MD)No.6 of 2015 counsel in this case on the point canvassed by him cannot find any support from the said decision either.
12. While adverting to the first contention of the learned counsel we may reproduce Section 20(1) of the Act.
[That sub-section is virtually the same as Section 4(1) of the predecessor Act of 1947.] “20. (1)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 any person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, 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.”
13. Before proceeding further, we may point out that the expressions “may presume” and “shall presume” are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as “factual presumptions” or “discretionary presumptions” and those falling under the latter as “legal presumptions” or “compulsory http://www.judis.nic.in Page 29 of 39 Crl.A(MD)No.6 of 2015 presumptions”. When the expression “shall be presumed” is employed in Section 20(1) of the Act it must have the same import of compulsion.
14. When the sub-section deals with legal presumption it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
15. The word “proof” need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the http://www.judis.nic.in Page 30 of 39 Crl.A(MD)No.6 of 2015 supposition that it exists. This is the definition given for the word “proved” in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. [(1911) 1 KB 988 : 1911 WN 53] observed like this:
“Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.”
16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. http://www.judis.nic.in Page 31 of 39 Crl.A(MD)No.6 of 2015
17.Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled.
18. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra [(1998) 7 SCC 337 : 1998 SCC (Cri) 1625] : (SCC p. 339, para 5) “A presumption can be drawn only from facts — and not from other presumptions — by a process of probable and logical reasoning.” http://www.judis.nic.in Page 32 of 39 Crl.A(MD)No.6 of 2015
19. Illustration (a) to Section 114 of the Evidence Act says that the court may presume that “a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession”. That illustration can profitably be used in the present context as well when prosecution brought reliable materials that the appellant's pocket contained phenolphthalein-smeared currency notes for Rs 500 when he was searched by PW 7 DSP of Anti-Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else because there is a possibility of somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the court to draw a factual presumption that the appellant had willingly received the currency notes.
20. PW 7 DSP said that PW 1 approached him on the previous day and lodged Ext. P-2 complaint stating that the appellant was persistently demanding Rs 500 from him. The currency notes were actually prepared by PW 7 by smearing them with phenolphthalein powder. When the appellant was caught red-handed with those currency notes he never demurred to PW 7 that those notes were not http://www.judis.nic.in Page 33 of 39 Crl.A(MD)No.6 of 2015 received by him. In fact, the story that such currency notes were stuffed into his pocket was concocted by the appellant only after lapse of a period of 4 years and that too when the appellant faced the trial in the court.
21. From those proved facts the court can legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that the appellant received the said amount.” On the facts and circumstances of the case in hand, it is not the case that MO1 and MO2 were stuffed or forcibly thrusted in the hands of the respondent. Further there is no plausible explanation to dispel and shifting the burden of proof.
(viii)This Court in K.Selvaraj and others Versus the State reported in 2004 SCC OnLine Mad 931; Duraimurugan Versus State represented by the Deputy Superintendent of Police, Vigilance and http://www.judis.nic.in Page 34 of 39 Crl.A(MD)No.6 of 2015 Anti Corruption, Vellore reported in 2013 SCC OnLine Mad 30; Thyagarajan Versus State by the Inspector of Police, Vigilance and Anti Corruption City Special Unit-III, Chennai reported in 2017 SCC OnLine Mad 4620; Ramalingam Versus State represented by the Inspector of Police, Vigilance and Anti Corruption, Nagapattinam reported in 2017 SCC OnLine Mad 23740 have clearly held that the guidelines are directory and not mandatory.
(ix)The other contention of the learned senior counsel for the respondent that there was some animosity between PW2 and the respondent. In connivance with the officials of NACSS, the trap has been laid to implicate the respondent, by setting up the trap seems to be far-fetched. The respondent had not successfully rebutted the presumption under Section 20 of the Prevention of Corruption Act, 1988. The prosecution on the other hand had clearly established the demand, acceptance of the tainted money and recovery.
(x)Taking guidelines from the case of Krishna Ram Versus State of Rajasthan reported in (2009) 11 SCC 708:-
“There cannot be any quarrel with the settled http://www.judis.nic.in Page 35 of 39 Crl.A(MD)No.6 of 2015 propositions of law that if on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible one as held by the trial court for acquitting the accused and the other for convicting the accused, in such a situation, the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial court. It is also equally well settled that where the material on record leads to a sole and inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court.”
(xi)Thus from the evidence available and on the above discussion, this Court finds that the trial Court decision was erroneous and the approach of the trial Court was patently, manifestly unreasonable. The trial Court ignored the evidence, misread the materials and evidence of PW2, PW3, PW4, PW5, PW9 and PW11, who have clearly proved the fact of demand, acceptance and recovery of MO1 and MO2 from the respondent, leading to inescapable conclusion that the respondent had committed the offence.
7.The reasoning given by the trial Court cannot stand the test http://www.judis.nic.in Page 36 of 39 Crl.A(MD)No.6 of 2015 of scrutiny in view of the available evidence and materials. The appeal is allowed and the judgment of acquittal awarded by the trial Court is set- aside, convicting the respondent for the offence under Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
8.The learned counsel for the respondent shall inform the respondent to personally remain present before this Court on 14.09.2020. This Court adjourns the case for hearing the respondent on the question of sentence. If on that day, he fails to appear before this Court, the counsel for the respondent will be heard on the question of sentence.
9.For hearing of the respondent on the quantum of sentence, Registry is directed to list the appeal on 14.09.2020, under the caption, “for the appearance of the respondent”.
28.08.2020 Speaking Order / Non-Speaking Order Internet : Yes / No Index : Yes / No vv2 To
1.The Special Judge, Special Court for trial of Prevention of Corruption Act Cases, Madurai.
2.The Public Prosecutor, http://www.judis.nic.in Page 37 of 39 Crl.A(MD)No.6 of 2015 Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in Page 38 of 39 Crl.A(MD)No.6 of 2015 M.NIRMAL KUMAR, J.
vv2 PRE-DELIVERY JUDGMENT IN Crl.A(MD)No.6 of 2015 28.08.2020 http://www.judis.nic.in Page 39 of 39