Madras High Court
C.Raghu ... 1St vs State Represented By on 18 December, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
Crl.A No.213 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 12.12.2024
Pronounced on : 18.12.2024
CORAM : JUSTICE N.SESHASAYEE
Criminal Appeal No.213 of 2021
1.C.Raghu ... 1st Appellant / Accused No.1
2.K.Tamilselvan ... 2nd Appellant / Accused No.2
Vs
State represented by
Deputy Superintendent of Police
Vigilance & Anti Corruption
Dharmapuri. ... Respondent / Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to set aside the conviction and sentence imposed upon the
appellants/accused 1 & 2 by the Special Judge / Chief Judicial Magistrate,
Dharmapuri in Special Calendar Case No.4 of 2010 dated 31.03.2021 and allow
the appeal.
For Appellants : Mr.R.Shunmugasundaram,
Senior Advocate for
M/s.Shakeenaa.A.G for 2nd appellant
Mr. N.Manokaran for 1st appellant
https://www.mhc.tn.gov.in/judis
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Crl.A No.213 of 2021
For Respondent : Mr.K.M.D.Muhilan
Govt. Advocate (Crl. Side)
JUDGMENT
The appellants herein were convicted for offences U/s.7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, by the learned Special Judge / Chief Judicial Magistrate, Dharmapuri, in Special C.C.No.04 of 2010. Both were sentenced identically by the trial Court, and each of them were directed to suffer a term of one year S.I. and also to pay a fine of Rs.2,000/- in default to undergo another three months S.I. in prison for offences U/s.7 of the Prevention of Corruption Act, and two (2) years S.I. + Rs.5,000/- in default to undergo six (6) months S.I. for offence U/s.13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. Aggrieved by the same, these accused persons are now before this Court in these appeals.
2.The case of the prosecution unfolds as below:
a) In October, 2008, A1 was working as a Junior Engineer in TNEB at Marandahalli Pudur Village, Palacode Taluk, near Dharmapuri. At the relevant time A2 was working as a foreman in the same office.
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b) Some two decades prior to 2008, to be precise on 05.09.1986, a certain Chithe Gounder had applied to the the TNEB seeking electricity connection for agricultural purposes. Since application such as this are taken up based on their seniority, Chithe Gounder necessarily had to wait. However, before he could obtain the electricity connection, he passed away.
c) It is in these circumstances, P.W.2, the son of Chithe Gounder, was served with a notice dated 04.08.2008 from the Executive Engineer, TNEB though certain Ranganagthan, a wire man attached to TNEB. According to P.W.2 this communication was served almost after a month from the date on which it was issued. On receiving the said communication, P.W.2 went to the TNEB office and met A2. He met him on couple of occasions subsequently.
d) Thereafter, as required by the procedure, on 31.10.2008, P.W.2 made Ext.P5 application. On 27.11.2008, P.W.2 again met A2 and the latter would now demand Rs.2,000/- each for him and for A1. This was the first demand.
e) Subsequently, on 05.12.2008 P.W.2 met A1 for the first time. The time was around 9 a.m. in the morning, and according to P.W.2 he had https://www.mhc.tn.gov.in/judis _______ Page 3/30 Crl.A No.213 of 2021 conveyed the demand of A2, to which A1 was alleged to have replied that without money service connection might not be given, and required P.W.2 to arrange Rs.2,000/- as instructed by A2.
f) On the very evening at around 6.00 p.m. (on 05.12.2008), P.W.2 preferred Ext.P2 Complaint, receiving which P.W.13 registered Ext.P49 F.I.R. Soon P.W.13 began to organize the trap that he proposed to set.
g) On 06.12.2008, early in the morning, P.W.13 completed his pre-trap procedures and entrusted Rs.2,000/- (Rs.500 x 3 notes + Rs.100 x 5 notes) all smeared with phenolphthalein powder under Ext.P3 - entrustment mahazar. He then led the trap team to the office of both A1 and A2 which inter alia comprised of P.W.3 and certain Rathnavelu as the shadow witnesses for the event.
h) The trap team landed at near the office of A1 at about 9 am. As planned, P.W.2 accompanied by P.W.3, met A1 in the presence of A2 and handed over Rs.2,000/- planted for the purpose, and tendered it to A1, A1 would now instruct P.W.2 to hand over the money to A2. The money was accordingly paid to A2, and A2 had received the same with his left hand, and then handed it over to A1.
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i) Wasting no time, P.W.2 alerted P.W.13 who would now arrive at the scene with the rest of his team members and completed the post trap procedure. Indeed, the trap was successful as the trap test proved positive. The planted currencies were then seized under Ext.P14 seizure mahazar.
j) The investigation was then taken over by P.W.14, who on completing the investigation laid his final report.
3.The trial Court framed appropriate charges against both the accused persons and proceeded to try these charges. During trial, the prosecution examined P.W.1 to P.W.14, marked Ext.P1 to Ext.P55 and produced MO1 to MO11. For the defence, the appellants have examined D.W.1 to D.W.4 and have also produced Ext.D1 to Ext.D11. After appreciating the evidence before it, the trial Court found both the appellants guilty of the charges and sentenced them as outlined in the opening paragraph of this judgment. This judgment is now under challenge.
4.1 Leading the arguments for both the appellants, Mr.R.Shunmugasundaram, the learned Senior Counsel, made the following submissions, however with an https://www.mhc.tn.gov.in/judis _______ Page 5/30 Crl.A No.213 of 2021 emphasis vis-a-vis the case :
a) According to the prosecution, the first demand and the only demand made by A1 was at 9,00 a.m., on 05.12.2008, for doing an official favour of changing the name of P.W.2 pursuant to Ext.P11 application.
However, vis-a-vis change of name in the application seeking electricity connection for agricultural purposes is concerned, it has to be done only by the Executive Engineer (E.E.), and the Junior Engineer would only forward his recommendations which would be routed through the Assistant Executive Engineer (A.E.E). Ext.P.37 dated 13.11.2008 is the proceedings of A1 in which A1 had made his recommendations for change of name to P.W.9, the A.E.E, and eventually vide Ext.P.38 dated 28.11.2008, the A.E.E. has passed the proceedings changing the name. Indeed he has also made necessary endorsement to this effect in Ext.P11 application. This would go to show that atleast some three weeks prior to 05.12.2008, A1 had done whatever he was required to do at his end vis-a-vis the application for change of name.
b) The second aspect that would belie the case of the prosecution that A1 had made the demand at 09.00 a.m., on 05.12.2008 is that, on that date https://www.mhc.tn.gov.in/judis _______ Page 6/30 Crl.A No.213 of 2021 he was part of the inspection team which the Executive Engineer had constituted for a mass raid to verify various electricity meters at Papparapatty division. This was spoken to by P.W.4, another A.E., and he speaks to Ext.D3 proceedings of the Executive Engineer, through which the latter had constituted a team which inter alia included A1 for a mass raid at Papparapatty village. Indeed, Ext. D3 proceedings shows that A1 was required to inspect electricity meters in two places and according to D.W.4, the Junior Engineer of Papparapatty division and also a member of the mass raid team, A1 indeed had inspected 134 meters in two places that were assigned to him. Secondly, D.W.1, D.W.3 and D.W.4, who are all a part of the raid-team submit that the raid-team commenced its action at 8.00 a.m., on 05.12.2008. Indeed, in the cross-examination of D.W.1, the prosecution itself had elicited that as per the service rules, the working hours will commence at 8.00 a.m., and extend till 5.30 p.m., on any day. This apart, D.W.1 himself says that the distance between Marandahalli, where A1 was working, and Papparapatti where the raid had taken place is 27 kms., a fact ascertained by the prosecution during the cross-examination of D.W.1. Besides, it was also elicited that it would take anywhere between 30 to https://www.mhc.tn.gov.in/judis _______ Page 7/30 Crl.A No.213 of 2021 45 minutes to cover 27 kms by a two wheeler to reach paparapatti from Marandahalli. Therefore, if the work has to commence at 8.00 a.m., at Papparapatti, then A1 ought to have left Marandahalli atleast around 7.15 a.m., That A1 was a part of the team, was proved by Ext.D3 proceedings of E.E., and Ext.D7, Register maintained at Papparapatti. Cumulatively it creates a very strong probability if not an impossibility that A1 could have made a demand for bribe at 9.00 a.m., on 05.12.2008. To state it differently, the attempt of the prosecution to prove demand as an independent fact is caught on a wobbling plane.
c) According to the prosecution, P.W.2 is said to have preferred a complaint only in the evening, and the FIR came to be registered at 6.00 p.m., on 05.12.2008. According to P.W.13, he had typed the oral complaint given by P.W.2 in his computer and has also make a statement that copy of the FIR was given for P.W.2 to read but P.W.2 concedes he is an illiterate. This implies P.W.2 indeed was acting at the behest of somebody else to fix the accused persons in this case.
d) P.W.13 would further depose, after registering the FIR, at about 7.00 p.m., he sent Ext.P11 communication to the Executive Engineer of TWARD Board for nominating an official from his department to be https://www.mhc.tn.gov.in/judis _______ Page 8/30 Crl.A No.213 of 2021 part of his trap team. In response, the same Executive Engineer had issued Ext.P55, proceedings nominating P.W.3, in which he had mentioned that the said nomination was being made pursuant to the request received in the afternoon on 05.12.2008. And P.W.3 himself had admitted to this fact in the cross-examination. This implies P.W.13 had apparently commenced his part of his investigation strategy long before he ever had come to know about the proposed complaint which P.W.2 might come out with. This is something very serious that refuses to meet either law or logic. The prosecution, therefore was caught on the wrong foot even before the trap was staged, and this discrepancy in investigation was not explained by it at any stage of the trial.
e) Turning to trap per se, according to prosecution, P.W.2 tendered the planted currencies first to A1. But A1 would require it to be paid to A2, that A2 received it with his left hand and instantly gave it to A1. What is intriguing in the whole exercise is that if the prosecution line of the case were to be believed, at the moment when P.W.2 tendered the currencies to A1, neither A1 nor A2 knew that a trap had been set for them. If so, A1 could have received the money straight from him, and there is hardly any sanctity gets attached by requiring A2 to touch https://www.mhc.tn.gov.in/judis _______ Page 9/30 Crl.A No.213 of 2021 the currencies for few seconds before the latter gave it to A1.
f) According to the prosecution, after the trap test, the sample sodium carbonate solution in which A2 dipped his both the hands were collected in two separate bottles (M.O.4 and M.O.5) and had sealed them. Besides, he had also collected a similar solution in which M.O.7 pant of A1 was dipped (M.O.6). However, Ext.P45, Form-95 shows that they were forwarded to the Court only on 08.12.2008, some two days after the samples were prepared. Critically, P.W.11, the Head Clerk of the Court had deposed that it was collected without the specimen seal of the investigating agency. This apart, even the signature of the accused was not seen fixed in the sample bottle which was collected and sealed before the accused persons by the TLO.
g) Here A1 in his cross-examination has suggested certain enmity between P.W.2's friend Ravi and A2, and in all probability, Ravi might have been the handler of P.W.2 4.2 Supplementing the above, Mr.N.Manoharan, learned counsel for A1 made the following submissions:
a) According to P.W.2 it was A2 who made the first demand for https://www.mhc.tn.gov.in/judis _______ Page 10/30 Crl.A No.213 of 2021 Rs.2,000/- each for him and for A1. This he has sgtated in Ext.P2 complaint as well as in his chief examination. But at the time of trap he was apparently been entrusted with Rs.2,000/- and not with two lots of Rs.2,000/-. Therefore, with Rs.2,000/- P.W.2 had arrived at the TNEB office and tendered it first to A1. This implies, bribe money, according to prosecution, was paid only to A1 and not payment was made or intended to be made to A2 either for himself or for A1. And the further accusation is that A1 had required P.W.2 to pay the money to A2. And what did A2 did, according to prosecution? He received the money with his left hand and without wasting any time, he immediately gave it to A1. Therefore, the object behind this strategy of the prosecution is to ensure that A2 touches the planted currencies, and once so touched the trap-test will necessarily be successful. This is far too artificial for any reasonable man of ordinary prudence to appreciate.
b) Turning to the trap per se, given the nature of responsibility assigned, to A2, he has no role to play in the whole exercise. This implies that A2 at the best might have touched the currencies but has never intended to hold the same for himself. And there is no charge under Sec.120B IPC nor under Sec.12 of the P.C. Act either. Hence, https://www.mhc.tn.gov.in/judis _______ Page 11/30 Crl.A No.213 of 2021 implicating A2 in the crime per se, lacks sustainability in law.
4.3 Both the counsel would now make their joint statements:
a) The consistent line of defence was that at the time of trap, A2 and wireman Ranganathan (whose name was referred to in Ext.P2 complaint, and cited as LW 13 in the final report, but not examined) were beaten up and A2 was forced to pick up the currencies that was lying on the floor of the store room and was forced to hand it over to A1, and that A1 had received it out of fear and he was forced to count it. P.W.3, one of the shadow witnesses was confronted with a suggestion to this effect, but he denied it. D.W.13 was also confronted with the same suggestion, but he denied it. However, D.W.2 (who is also named Ranganathan, who should not be confused with his name sake wireman Renganathan) has deposed that at the first instance no money was recovered either from the pockets of A1 or A2, that one of the policemen who was part of the trap team would then assaulted A2 and that wireman Ranganathan had intervened to enquire why A2 was beaten following which he too was beaten. Now, if none of what was suggested had happened, then the prosecution should have examined wireman Ranganathan who it had listed as LW 13 in the https://www.mhc.tn.gov.in/judis _______ Page 12/30 Crl.A No.213 of 2021 final report. He was deliberately not examined to screen off the facts affecting the quality of the trap that was said to have taken place.
Necessarily adverse inference should be drawn against the prosecution for not examining Ranganathan, who is a crucial witness given the factual context of the case.
b) D.W.2, (to whom reference had been made in the earlier bullet point) was a third party applicant for some services and he has deposed that around 8.30 a.m., on 06.12.2008, he was at the office of A1, and when he went there, he saw P.W.7, then A1 and A2. He also claims that he has seen P.W.2, who he says belongs to the same village from where he hails. While so, about 4 or 5 persons entered the office and locked the office, and one among them asked who was A1 and A2, and asked P.W.2 to whom the latter had given the money. P.W.2 then would show both A1 and A2, and when the police searched for money in the pockets of A1 and A2, nothing was recovered there from. Even as this was happening, one of the policeman in the team slapped A2. A certain Ranganathan, wireman was also present there and he intervened to question why the staff of TNEB were beaten. Soon they were all sent out and P.W.2 claims that he waited there till 12.30 p.m., He also refers to P.W.2's version, Ravi https://www.mhc.tn.gov.in/judis _______ Page 13/30 Crl.A No.213 of 2021 and his possible involvement in fixing A1 through his friend P.W.2. On material aspects, there has been no pointed cross-examination. Indeed, as to the presence of wireman Ranganathan, even P.W.2 has spoken about his presence. Even P.W.2 in his cross-examination has admitted that Ravi was his friend.
5. Making a pointed response to the contentions of the appellants, the learned Prosecutor submitted:
a) the appellants, may have to explain or try to explain that there could not have been a demand on 05.12.2008 because the appellant was part of a mass - raid - team for inspection at Papparappatti locality. If that is so, the appellants are duty bound to explain as to why they took the sinned money from P.W.2. This is not adequately explained. No demand for bribe can be demonstratively established as it is done essentially under a cover of secrecy. Therefore, even if any evidence aimed to establish a demand for bribe is found shaking, it still does not dispense an accused persons to discharge the reversed burden cast upon them U/s.20 of the Prevention of Corruption Act, 1988. Reliance was placed on the ratio in J.Pandiaraj (Died), Rep by his LRs Vs. State by https://www.mhc.tn.gov.in/judis _______ Page 14/30 Crl.A No.213 of 2021 the Deputy Superintendent of Police, Vigilance and Anti Corruption, Dharmapuri [Crl.A.299 of 2015, dated 08.11.2024].
b) Turning to facts the case of the appellants is that on 05.12.2008, they were supposed to have left Marandahalli at around 7.15 in order they could reach Papparappatti at 8.00. But there is no evidence to indicate whether they actually joined the team by 8.00 or little late.
c) So far as the defence witnesses are concerned, they are all the colleagues of the appellants belonging to the same cadre. Obviously, they are only expected to help the cause of their friend and not of justice.
d) Turning to the allegation that the TLO had beaten up the appellants in his efforts to fix them up in this case, it is only D.W.2, a private person who makes a statement to this effect which however was denied by P.W.3, the shadow witness. Besides his self serving statement that he was so present, there is nothing to indicate that there was some business for which D.W.2 was at the office of the appellants on
06.12.2008. It should not be overlooked that he claims to know the appellants for 13 years at that point of time.
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6. In response, Mr.R.Shunmugasundaram, learned senior counsel appearing for the second appellant replied as below :
a) After constituting an offence under Sec.7 of the P.C.Act, it is imperative that all the three conditions must be simultaneously present.
When one of the foundational facts necessary to invoke the presumption under Sec.20 of the P.C. Act is wobbling, necessarily the benefit of doubt should be given to the appellant. And unless all the three ingredients namely, demand, payment and acceptance of bribe money are simultaneously established, no offence under Sec.7 can be said to have been established. Even in the judgment of this Court in J.Pandiaraj case (Crl.A.No.299 of 2015) referred to by the learned Prosecutor, this is emphasised.
b) At any rate, it is established that the samples of the sodium bicarbonate solution taken by the TLO was not made simultaneous but on a different date. And that it does not add the sample seed nor did the TLO obtained the signature of the accused persons to corroborate the fact that the trap was fair and legal.
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7. I had an occasion to state the law in J.Pandiaraj case in Crl.A.No.299 of 2015 as below :
"6.1 Let the law be stated. For proving a crime under Sec.7 of the PC Act, the prosecution should establish the minimum facts which constitute the tripod – the demand, payment and acceptance of bribe money on which the crime rests. Even if one leg is not established then the offence cannot be said to have been committed.
6.2 While a successful trap gives an opening credence to the accusation in the FIR as to prompt further investigation into it, it is not conclusive. What does a trap-test establish? It can at the best prove that an accused person has either received the planted currencies, or he has just touched it, for the moment the accused- person touches the planted currencies or an article without even completing the act of receiving it, the trap-test will produce positive results. Therefore notwithstanding its functional utility in providing an opening for investigation, a trap-test carries a weak evidentiary value to bring home the guilt of the accused person on its own strength, for it is neither capable of proving a demand for and the acceptance of bribe-money. At the best it may serve to prove payment of bribe, which perhaps is the easiest of the triple criteria to prove, since the bribe-giver himself is a decoy of the investigating agency.
https://www.mhc.tn.gov.in/judis _______ Page 17/30 Crl.A No.213 of 2021 6.3 How then to prove demand for bribe? It must be stated that it will be fiendishly difficult for any prosecuting agency to prove demand for bribe through direct evidence, for no person given to his senses will ever make a demand for bribe, leaving a trail for an investigating agency to track. In many cases, the prosecution tries to establish it by producing the CDR details of cellphone to cellphone call details, but its efforts invariably stop there. Unless the text of the cellphonic conversation, duly authenticated by a certificate issued under Sec.65B of the Evidence Act (now Sec.63 of BSA) is produced, no useful purpose would be served by mere production of the CDR. Necessarily, a demand for bribe must be inferred only from proof of payment and acceptance of bribe money.
6.4 The next aspect is proof of acceptance. As stated earlier, a trap-test is inconclusive to hold that the accused is guilty of accepting bribe, for it, at the best of times establishes that either the accused has received the planted article or has just touched it. In the context of proving the crime under Sec.7, what then constitutes acceptance, and how it is different from receipt of a planted article? Receipt involves a mere act of receiving, and it need not be accompanied by an intent to hold on to what is received. Therefore, acceptance requires a shade of intent more than that which is required for receiving. And, even acceptance of the planted currencies or article need not always lead to a conclusion that there is an intent to accept what is received. In other words, notwithstanding the fact that the bribe-giver may have paid anything as bribe, the alleged bribe-taker need not have https://www.mhc.tn.gov.in/judis _______ Page 18/30 Crl.A No.213 of 2021 received it with an intent that he is receiving what he receives as bribe. This implies that in a given case, there can be a mismatch between the intent of a bribe-giver in giving the bribe and the intent of the accused person in receiving it. Therefore, proof of acceptance of bribe depends on the purpose or the intent behind the acceptance of the tainted article. Hence, for completing an act of acceptance for proving the offence under Sec.7 or Sec.13(1)(d), the purpose or the intent for receiving the tainted or planted article should be incapable of being explained, which given the circumstance in which it is set, is acceptable to a reasonable man of law in the ordinary course of human conduct. It could therefore be concluded that while a simple act of receipt need not carry mens rea, acceptance of the planted article does require mens rea. The distance between a receipt and acceptance of bribe may be slender, but it is critical.
6.5 However, the intent behind accepting the planted article, often the sinned-currencies, will be only within the personal knowledge of the accused person. It is hence, when a trap-test is proved positive, the presumption under Sec.20 of the PC Act gets activated. But the intent behind holding on to what is received by an accused during the trap will be only within the personal knowledge of the accused, and in terms of Sec.106 of the Evidence Act (now Sec.109 of the BSA) the burden will be on him to establish it. It is hence, the statute has imposed a reverse burden on him to explain. Ultimately, it is the quality of explanation that will decide whether the accused will enjoy his freedom or not. If the explanation and the evidence in aid of it, appears believable https://www.mhc.tn.gov.in/judis _______ Page 19/30 Crl.A No.213 of 2021 and reasonably be accommodatable within the conscience of the Court, then no act of acceptance of bribe can be said to have been established. This is essentially a question of fact.
6.6 Therefore, mere proof in aid of a self-serving act of payment of bribe-money, unaccompanied by poof of its acceptance (or should it be non-acceptance, since acceptance depends largely on the quality of the explanation offered for receiving the planted currencies or article), no demand for money can be deduced as an inferable fact. In other words, even though a demand for money is capable of being proved mostly inferentially, still unless the factum of acceptance of bribe could be ascertained from the quality of explanation offered by the accused, a demand for bribe cannot be inferred.
6.7 In cases, where the prosecution attempts to prove demand for bribe as an independent fact but through shaky evidence, it may not carry much weight if the reverse burden cast on the accused person is not adequately discharged. If however, if the accused person is able to offer tenable and believable explanation as to the possession of planted currencies in his hand adequate enough to persuade the court to arrive at a conclusion that at the best there could be only receipt of planted article but not its acceptance, then a shaky evidence produced by the prosecution to prove the demand for bribe as an independent fact will accelerate the advantage of the accused person. Indeed, in a given case, it may also go to prove that the entire case against the accused was either fixed by the complainant, or that the trap itself was afflicted https://www.mhc.tn.gov.in/judis _______ Page 20/30 Crl.A No.213 of 2021 by malafides.
6.8 To this it may be added that while law requires all the three acts of demand, payment and acceptance of bribe must be simultaneously proved, it does not require that they must be established in the same order. Ordinarily, it will start from proof of payment of bribe (by default), followed by proof of acceptance (by evaluation from a plane of ordinary course of human conduct), from which flows the proof of demand (by inference)."
The quintessence of what this Court has stated is that where payment of tainted currency is established and holding on to the money received by the accused is not adequately explained, then demand for bribe can be inferred. 8.1. Of the triple criteria which the Courts insists for establishing a crime under Sec.7 of the PCA, proving payment of bribe money, perhaps is the easiest. And here the consistent strategy of the appellants is that violence was unleashed on A2 and also on L.W.13 Ranganathan, and that it was under force A2 picked up the currency that was lying on the floor of the storeroom and gave it to A1, and which A1 had received it out of fear. Where payment of bribe money, ordinarily a peaceful act in a trap scenario, itself comes under the scanner, then any suspicion that it Sec.20 of PCA. This in turn would imply that proof of a https://www.mhc.tn.gov.in/judis _______ Page 21/30 Crl.A No.213 of 2021 positive test will still be inadequate to establish the demand for bribe money.
9. Turning to the facts of the case could there be a demand for bribe money by A1 at 9 a.m or thereafter on 05.12.2008? Evidence of P.W.4. D.W.1, D.W.3 and D.W.4 read alongside Exts.D3, establishes A1 was part of the mass raid that commenced at 8 a.m. on that day at Papparapatti, a place 27 km. away from Marandahalli where the demand for bribe money was alleged to have been made. If the mass-raid was to commence at 8 am, and when A1 was part of the mass- raid team, then unless the prosecution establishes that despite his participation in the mass-raid which was to commence at 8 am, A1 was at Marandahalli at 9 a.m., it cannot be held that A1 had made his demand for bribe at or after 9 a.m. Indeed, even P.W.2 could not have met A1 on that date. Here, except the statement of P.W.2, there is no other independent witness to support what P.W.2 alleges. Necessarily it cannot be held that the prosecution is able to establish demand for bribe money by A1 in the manner it attempts to prove.
10. Next to payment of bribe money. Here the charges against A2 may be considered first. According to prosecution, A2 had made demand for bribe of Rs.2,000/- each for him and for A1 on 27.11.2008, and not thereafter. And, https://www.mhc.tn.gov.in/judis _______ Page 22/30 Crl.A No.213 of 2021 except the statement of P.W.2 there is nothing to prove the demand for bribe by A2, but this is understandable since demand for bribe will be never made in open. But was it followed by payment of bribe and acceptance of bribe by A2? Now at the time of trap, even according to the prosecution P.W.2 had brought the bribe money (all planted) only for A1 and not for A2. And money was also tendered to A1 and not to A2. Therefore, there was no intent either on the part of P.W.2 to pay the bribe money to A2, nor was there a renewed demand for bribe by A2 at that time. Therefore, even if it is presumed that there was an original demand for bribe on 27.11.2008 by A2, still inasmuch as there was no intent to even pay the bribe money to A2, it cannot be said that there is a completed crime under Sec.7 of PCA vis-a-vis A2. And the fact which is available against A2 is that the trap-test against him was proved positive. But, the prosecution does not trouble the Court much, as its line of the story is that when the planted money was tendered to A1, the latter required the money be paid to A2 (or to be touched by him) before the latter handed it over to A1. What an artificiality about the whole narration? Is A2 a mahant or high priest that A1 should get the blessings of A2 for him to touch the planted currencies before A1 collected it from the former? The prosecution story is not good even for a comics-script. Necessarily A2 should walk free. https://www.mhc.tn.gov.in/judis _______ Page 23/30 Crl.A No.213 of 2021 11.1 Now comes the case against A1. It is already seen that he could not have demanded the money on 05.12.2008. Therefore unless it is established that there was any real intent on the part of A1 to receive and to hold on to the bribe money, it cannot be held that the prosecution has travelled the entire distance to bring home the guilt of A1 with an inferential demand for bribe. Now, A1 was a Junior Engineer, and vis-a-vis the transfer of name for application of electricity connection for agricultural purpose, the duty rests with he Executive Engineer, and the role of A1 as Junior Engineer is limited to forwarding his recommendations on it, which he had routed it to the Executive Engineer through the Assistant Executive Engineer (AEE), which Ext.P.37 dated 13.11.2008 is the proceedings of A1 in which A1 had made his recommendations on which eventually vide Ext.P.38 dated 28.11.2008 AEE has passed the proceedings changing the name. This would imply on 6.12.2008 there was neither any duty left to be performed by A1, nor there could have been an earlier demand. Therefore, why should P.W.2 tender planted currencies to A1? 11.2 Here the defence line of the version on what happened on the date of trap becomes important. According to the defence, at the time of trap, a certain police personnel had beaten A2 before he touched the currency and when LW13 https://www.mhc.tn.gov.in/judis _______ Page 24/30 Crl.A No.213 of 2021 Ranganathan (wireman) intervened to question it, even he was beaten by the police. This was first suggested to P.W.3. And, LW 13 has made his appearance in the prosecution line of the case even at the time of Ex.P2 complaint, since his name finds a reference to him. After making the suggestion as stated above, in fitness of things prosecution should have examined L.W.13 Renganathan. He was not examined. Given the setting when P.W.2's attempt to fasten a crime on A1 does not look natural, whether screening of L.W.13 by the prosecution is an attempt to withhold any fact that might turn against its design? It appears so.
12. Here defence had examined D.W.2. He is neither a part of the trap team nor an employee of TNEB, but someone from the public who had visited the TNEB office at about the time when the trap was set in motion. The prosecution states that he should not be believed, for he could have been planted by A1. But then even if his role is entirely excluded, the prosecution has not helped its cause by not creating an ideal setting for this Court to believe that A1 had accepted the bribe money, and it is compounded by its failure to examine L.W.13, Ranganathan.
13. Capping this uncertainty of prosecution's creation is the advance intimation https://www.mhc.tn.gov.in/judis _______ Page 25/30 Crl.A No.213 of 2021 which the TLO had given for nominating P.W.3, the shadow witness, few hours even before P.W.2 had preferred the complaint. According to P.W.13 he had sent Ext.P11 communication to the Executive Engineer of TWARD Board at about 7 p.m for nominating an official from his department to be part of his trap team. This nomination comes vide Ext.P55 (by which P.W.3, was nominated), in which it is mentioned that the said nomination was being made pursuant to the request received in the afternoon on 05.12.2008. P.W.3 also admits to this fact in the cross-examination. Is it a mistake? The FIR was registered at 6 p.m. on 05.12.2008 and the trap had landed at the SOC at 9 a.m. on 06.12.2008. Therefore, if the trap was to be beyond suspicion then the request for nominating a shadow witness could have been made only between 6 p.m on 05.12.2008 and before the entrustment of planted currencies were made at 6.30 a.m. on 06.12.2008 vide Ext.P3 entrustment mahazar. Even if it is presumed that in Ext.P55 the date is wrongly typed as O5.12.2008 still it does not stands to reason how 'afternoon' comes to be specifically mentioned in it, since between the time of FIR and the trap, no 'afternoon' can intervene. Therefore, when in P55 'the word 'afternoon' is consciously mentioned, then the prosecution should have explained it. Unfortunately its own witness, P.W.3, did not support it. Now who in the trap team is vengenceful to gun for A1, and why? Here A1 refers to https://www.mhc.tn.gov.in/judis _______ Page 26/30 Crl.A No.213 of 2021 certain Ravi, a friend of P.W.2, with whom the former was not on cordial terms and that he was the one who might have used P.W.2 and pulled the strings from behind the TLO. This fact however, has not been conclusively proved, but it must be added that the TLO or the investigator have not been fair either.
14. To sum up, where the demand for bribe is not proved adequately, still proof of acceptance of bribe money and the inability of the accused to discharge his reverse burden to explain why and how the planted currencies came into his possession can compensate it. But where the very payment of bribe money and its alleged acceptance itself comes under cloud then demand for money cannot be readily inferred. And, if material lapses in investigation are noted, then they spoil the prosecutorial broth further. That precisely has happened in this case. The result: A1 will also be entitled to walk free as the attempt of the prosecution is to prove the guilt of A1 is inconclusive.
15. Are there then man with suspect integrity within the V & AC? It must be told that it is supposed to be the conscience keeper of the society, and is a vital mechanism in achieving corruption free India. It is time V & AC wing did some serious introspection, for this is not the first case where the integrity or lack of https://www.mhc.tn.gov.in/judis _______ Page 27/30 Crl.A No.213 of 2021 professionalism of V & AC has come under this Court's scanner. V & AC is told that the Courts are not its by-runners and that they have to labour to score every run. Success for its effort should be earned with its professionalism without seeking any patronage for its lapses and deficiencies from the Court. To presume that a person which it accuses of committing an offence as guilty may comfort it, but it is told that Courts are required to presume in the innocence of the accused till the prosecution crosses the line beyond reasonable doubt with its labour.
16. In conclusion, the appeal is allowed and the conviction and sentence imposed upon the appellants/accused 1 & 2 by the learned Special Judge / Chief Judicial Magistrate, Dharmapuri in Special Calendar Case No.4 of 2010 dated 31.03.2021, is set aside and the appellants are discharged of the crime levelled against them.
18.12.2024 Index : Yes / No Neutral Citation : Yes / No Asr / ds https://www.mhc.tn.gov.in/judis _______ Page 28/30 Crl.A No.213 of 2021 To:
1.The Special Judge / Chief Judicial Magistrate Dharmapuri.
2.The Public Prosecutor High Court, Madras.
https://www.mhc.tn.gov.in/judis _______ Page 29/30 Crl.A No.213 of 2021 N.SESHASAYEE, J.
ds Pre-delivery Judgment in Criminal Appeal No.213 of 2021 18.12.2024 https://www.mhc.tn.gov.in/judis _______ Page 30/30