?BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT %Dated: 19.03.2019 Reserved on 12.03.2019 Pronounced on 19.03.2019 *CORAM THE HONOURABLE MR. JUSTICE M.DHANDAPANI +Crl.A.(MD).No.269 of 2013 #K.M.Subramanian, I.A.S. ...Appellant Vs. $State of Tamil Nadu rep. by the Deputy Superintendent of Police, Vigilance and Anti~Corruption Dept., Madurai Detachment (Crime No.12/2012) ...Respondent Prayer:~ This Criminal Appeal is filed under Section 374(2) of Criminal Procedure Code, to call for the records of the Special Court for Trial of Prevention of Corruption Act Cases, Madurai in Special Case No.23 of 2011 dated 07.08.2013 convicting the appellant u/s 7 and 13(1)(a) & (d) r/w 13(2) of Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment for one year (two counts) and also pay a fine of Rs.1,000/~ for each count and in default of payment of fine, the accused shall undergo simple imprisonment for 3 months, hear the matter and set aside the finding and acquit the accused. !For Appellant : Mr.R.Shanmugasundaram, senior counsel for Mr.N.Selvam ^For Respondent : Mr.K.K.Ramakrishnan Additional Public Prosecutor :JUDGMENT This appeal is directed against the judgment of the learned Special Judge for Trial of Prevention of Corruption Act Cases, Madurai in Special Case No.23 of 2011 dated 07.08.2013. 2.For the sake of convenience, the parties are referred to as per the rank mentioned in the trial Court. The gist of the charges framed against the appellant/A1 and findings/sentence of the trial Court are as noted below: Name of Accused Charges Finding Sentence A1. K.M.Subramanian Secs.7 and 13(1) (a) & (d) read with 13(2) of Prevention of Corruption Act, 1988. Found guilty under Secs.7 and 13(1) (a) & (d) read with 13(2) of Prevention of Corruption Act, 1988. to undergo rigorous imprisonment for one year (two counts) and also pay a fine of Rs.1,000/~ for each count and in default of payment of fine, the accused shall undergo simple imprisonment for 3 months 3.The brief facts of the prosecution case are as follows: (i)The first accused is an I.A.S. Officer in Tamil Nadu Cadre and working as Commissioner of Social Welfare Department, Government of Tamil Nadu from 27.06.2001 to 27.10.2002. The second accused is an Industrial Co~ operative Officer. While the first accused was working as Commissioner of Social Welfare Department, a monthly review meeting was conducted at Chennai on 24.09.2002 for the officials of Industrial Co~operative of Weaning Food Societies and in that meeting, they had decided to make an official visit to Souther Districts Industries with an intention to collect illegal gratification from the officials of the above Societies. In order to execute his intention, he instructed the second accused to convey the message to the Officers in the Districts of Tirunelveli, Virudhunagar and Madurai. Accordingly, the second accused instructed the Officers. The first accused had visited the said Districts during 24.10.2002 and 25.10.2002 and during his visit, he demanded a sum of Rs.5,000/~ from each of the Industrial Co~ operative Officers and obtained a totally a sum of Rs.1,05,370/~ other than the legal remuneration, as a motive or reward to do an official act in the exercise of his official function and to desist from taking action against the officials for their non compliance in maintaining records and for their failure in adhering the instructions and rules made thereunder relating to the functioning of the Co~operative Societies. (ii)During the visit of the first accused, on 25.10.2002 at about 1.00 p.m., P.W.23, Mutharasu, Inspector of Police, Vigilance and Anti~Corruption, Madurai has received an information from one Srinivasagam, Deputy Superintendent of Police, V & AC Department (since deceased) that the first accused had come to Southern Districts for inspection of Nutritious Meal Centres and the 1st accused was compelling each Centre to pay a sum of Rs.5,000/~ and P.W.23 was instructed to verify the genuineness of the same. Thereafter, the said DSP procured two official witnesses viz., P.W.4 Samuel Sunder Singh, Deputy Inspection Cell Officer and P.W.5 N.Ganesan, Superintending Engineer, Tamil Nadu Electricity Board (TNEB), Madurai and they came to the vigilance office at about 4.30 p.m. on 25.10.2002. P.W.4, P.W.5, Rajkumar and Shanmugavel and other police personnel along with said DSP Srinivasagam were keeping watch over the Circuit House. AT about 6.00 p.m., 1st accused arrived at the Circuit House in a Santro Car. P.W.11 Ganesan also accompanied him and the 1st accused straightaway went to Suite No.7A and about 15 persons were found entering into the suite and coming out one after another. Thereafter, 1st accused went out in a Qualis car and returned at about 9.45 p.m. and about 5 or 6 persons, who were waiting outside entered into the suite one after the other and came out. At that time, two persons viz., Alagarsamy and P.W.11 Ganesan, who came out of the suite were stopped by P.W.4 just opposite to the office of DIG. When they were enquired by P.W.4, P.W.11 Ganesan told that he paid Rs.5,000/~ and P.W.13 Selvaraj, Othakadai ICO and P.W.12 Gunasekaran, Manamadurai ICO had also paid Rs.5,000/~ each to 1st accused. (iii)P.W.4 obtained statements from P.W.s11 to 13. P.W.13 Selvaraj in his statement had stated that it was the second accused Jegadeesan, Chinnalapatti ICO instructed him to pay Rs.5,000/~ per unit to the 1st accused. Thereafter, at about, the Deputy Superintendent of Police along with P.Ws.4 and 5 and others went to Suite No.7A and knocked the door. When the 1st accused opened the door, DSP informed that they had come to enquire about the rceipt of money by the 1st accused from the persons attached to Nutritious Meal Centres and hence, the 1st accused brought a yellow colour cloth bag from his suit case and handed over the same to DSP. On search, DSP found a gold dollar weighing about « sovereign depicting Goddess Meenakshi and the was seized. A sum of Rs.5,370/~ was also produced by the 1st accused. When the 1st accused appealed that he was unwell, DSP arranged for a medical team under the leadership of Dr.Balakrishnan and treatment was given to him. At about 6.15 a.m. on the next day i.e. on 26.10.2002, 2nd accused Jegadeesan (since deceased) appeared before P.W.4 and gave a statement to the effect that he brought Rs.5,000/~ to be paid to 1st accused. His statement was marked as Ex.P21. At about 6.30 a.m., P.W.14 Bose Ramalingam, Sivagangai ICO gave statement to P.W.4 besid es producing Rs.5,000/~ which was brought by him to the Circuit House to be paid to 1st accused. His statement was marked as Ex.P14. (iv)Thereafter, DSP Srinivasagam seized the said articles besides seizing the three torn Khaki colour envelopes and one white colour envelope from the dust bin. On perusal of such covers, in one of the cover, the name ?Rajendran? was found written and in two covers also found written as ?Othakadai? and ?Irudhayaraj? respectively. P.W.4 prepared the proceedings for having conducted the search and copy of the same was furnished to 1st accused and a case was registered in this connection by the Deputy Superintendent of Police, Vigilance and Anti Corruption, Madurai in crime No.12 of 2002 for the offences under Sections 13(1)(a)(d) read with 13(2) of Prevention of Corruption Act, 1988. The FIR is marked as Ex.P24. (v)P.W.17, Kumarasamy, Deputy Superintendent of Police, Sivagangai has taken up the case in crime No.12 of 2002 on 26.10.2002 and he perused the case records and examined the prosecution witnesses and some of the prosecution witnesses were produced before the learned Judicial Magistrate No.2, Madurai and their 164 Cr.P.C. statements were recorded. Thereafter, he handed over the investigation to P.W.26, Mohan, for further investigation. P.W.26 conducted further investigation and he examined other witnesses including P.Ws.1 and 2 and obtained sanction orders to prosecute the case as against the 1st and 2nd accused and after completion of investigation, he laid charge sheet as against the 1st and 2nd accused for the offence stated above. 4.To substantiate the charges against the accused in trial, on the side of the prosecution, P.Ws.1 to 26 were examined and Exs.P.1 to 34 were marked and M.Os.1 to 6 were produced. During the trial, the 2nd accused died and the charges framed against him were abetted. When the 1st accused was questioned about the incriminating circumstances and evidence, he denied the charges levelled against him. In order to disprove the case of prosecution, the 1st accused examined D.W.1, however, no document was marked. 5.Upon consideration of the oral and documentary evidence, the learned Judge found guilty of the 1st accused that the 1st accused being a public servant has obtained illegal gratification other than legal remuneration from his subordinate officials for not taking action against the officials for their non~compliance and irregularities in their regular course of work and further held that the 1st accused by corrupt and illegal means and by abusing his official position obtained illegal gratification from various officials other than legal remuneration for himself and thereby he was committed criminal misconduct. On the above findings, the learned Special Judge convicted the 1st appellant and sentenced him to undergo to undergo rigorous imprisonment for one year (two counts) and also pay a fine of Rs.1,000/~ for each count and in default of payment of fine, the accused shall undergo simple imprisonment for 3 months for the offences under Sections 7 and 13(1) (a) & (d) read with 13(2) of Prevention of Corruption Act, 1988. Aggrieved over the above said conviction, the 1st appellant has preferred the present appeal. 6.Heard the learned senior counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent. 7.Assailing the findings of the trial Court, the learned senior counsel Mr.R.Shanmugasundaram contended that the procedure contemplated under the vigilance manual as well as Chapter 12 of Cr.P.C. was not followed for the 1st accused, who is an I.A.S. Officer and without following the procedure and the manner in which the trap conducted on 25.10.2002 is not admissible one and with a malafide intention, the officials colluded each other deposed against the appellant in order to satisfy the persons, who has given instructions. 8.Further, the learned senior counsel appearing for the appellant submitted that the petitioner is a Commissioner of Social Welfare and Nutritious Meal Programme Department and he did not demand any money from any officials. As per the Government instructions, he decided to visit the places for the purpose of effective administration in the Districts of Tirunelveli, Virudhunagar and Chennai for testing orphanage students knowledge, testing teachers teaching techniques and serving food to the children and also for checking records and conducting meeting to EOSW & RWOs in Virudhunagar District and also for courtesy meeting with District Collector relating to the orphanage compound wall building and performance of the staff in Government Orphanage, Virudhunagar. The tour programame was fixed during 24.10.2002 to 25.10.2002. After completing the programme, when the appellant at the Circuit House, Madurai as per the tour programme, the vigilance team came. 9.The learned senior counsel further submit that to attract the offence punishable under Sections 7, 13(1)(a) and (d) of Prevention of Corruption Act, the prosecution has to establish that the accused Officer must made a demand of any gratification other than legal remuneration and such gratification was accepted by him as a motive or reward for doing of forbearing to do any official act. In the present case, the said demand and acceptance was not proved by the prosecution. Even as per the prosecution case, 2nd accused demanded illegal gratification on behalf of the 1st accused and that has also not been proved through any credible evidence. Proof of demand is sine~quo~non. Mere recovery of amount is not sufficient to implicate the accused in the present case. The Hon-ble Apex Court repeatedly held that mere receipt of money will not attract the offence under Sections 7 and 13(1) (a) & (d) read with 13(2) of Prevention of Corruption Act, 1988. In the present case, no evidence has been let in by the prosecution to prove either the demand for doing an official duty or the acceptance for a motive or reward for doing or forbearing to do any official act. Even a reading of Prevention of Corruption Act makes it clear that as a motive or reward for doing or forbearing to do any official act or for showing of forbearing to show in the exercise of his official functions favour of disfavour to any person for rendering or attempting to render any service. The acceptance of bribe must be for a motive or reward. There must be an official act expected to be done for the money received by the public servant. The prosecution witnesses give different reasons for paying the money. Two witnesses deposed that for Deepavali Gift they paid the money and other three persons, for not to take any coercive steps. Therefore, the testimony cannot be relied upon and ought to have been rejected. 10.The learned senior counsel further contended that the prosecution has not established the motive for receiving the money and there is absolutely there is no cogent evidence to prove the existence of any official act for which the money was demanded or accepted by the 1st accused. The prosecution witnesses in their evidence simply said that they gave money to the accused and the accused accepted. However, the prosecution miserably failed to establish the same. The prosecution has not established the essential ingredients with regard to the demand and acceptance beyond reasonable doubt by adducing credible evidence. The burden lies upon the prosecution to prove the case and thereafter, presumption will shift to the accused and the presumption applies only in respect of Section 7 of the Prevention of Corruption Act and Sections 13(1)(a) & (d) are not applicable and independently, the prosecution has to establish the ingredients of Sections 13(1)(a() & (d) of Prevention of Corruption Act. 11.The learned senior counsel further submitted that though the trial Court framed six charges, three charges viz., charges 1,3 and 5 alone alleged that on 25.10.2002 in order to screen the mistakes and for not taking any action, the 1st accused received illegal gratification from Industrial Co~ operative Officers, said to have received a sum of Rs.1,05,370/~ and 4 grams gold coin through 2nd accused and thus committed the offence punishable under Section 7 of P.C.Act. In order to establish the prosecution case, the prosecution examined P.Ws.4, 10 to 13 and 15 and 24. Amongst above witnesses, P.W.15 is not an Industrial Co~operative Officer and he is a provate person and hence, the evidence of P.W.15 cannot be relied upon, since no charge was framed as against the 1st accused in respect of payment of money by P.W.15. There is no corroboration in between P.Ws.10 to 13 and 24. Their evidence categorically established that every one voluntarily paid money without any demand by the appellant for doing any official favour and there is no motive or reward on the part of the 1st accused to do any official act or forbearing to do any act in order to attract the offence under the Prevention of Corruption Act to any of the prosecution witnesses since all witnesses categorically stated that no complaint is pending against any of them and when the 1st accused visited the Societies, no deficiencies were found by the 1st accused. Hence, there prosecution has failed to prove that the money has been paid to the 1st accused only for illegal gratification. In support of his contention, the learned senior counsel relied upon the following decisions: 1.(1979)4 SCC 725 ? Surajj Mal Vs. State (Delhi Admn.) 2. (2009)3 SCC 779? C.M.Girish Basu Vs. CBI 3.(2009)6 SCC 587 ? A.Subair Vs. State of Kerala 4.(2011)6 SCC 450 ? State of Kerala & another Vs. C.P.Rao. 5.(2014)13 SCC 55 ? B.Jayaraj Vs. State of Andhra Pradesh 6.(2016)12 SCC 150 ? V.Sejappa Vs. State 7.(2002) 1 SCC 351 ? Munshi Prasad and others Vs. State of Bihar. Thus, the learned senior counsel prayed for allowing of the appeal and acquittal of the appellant. 12.Per contra, the learned Additional Public Prosecutor appearing for the State would submit that each Districts consists of District Cells. The primary duty of the District Cell is to conduct surprise checks at sensitive points in various departments, public undertakings for the purpose of achieving the preventive effect in vigilance work and in toning up the administration. As per the vigilance manual, with a view to improving the efficiency of administration in various Departmental Offices at Regional, District and Divisional level, District Inspection Cells, functioning under the control of the District Collectors were set up in 1975 in 10 districts of the State. Each District Cell consists of a Special Officer and a Superintendent/Tahsildar. In the present case, P.W.4 is a Head of District Inspection Cell, who on receipt of information from P.W.23 was instructed to verify the genuineness of the information that the first accused had come to Southern Districts for inspection of Nutritious Meal Centres and the 1st accused compelling each of the Industrial Co~operative Officers of Tirunelveli, Virudhunagar and Madurai Districts to pay a sum of Rs.5,000/~. 13.On such information, P.W.23, P.W.4, P.W.5 and other official witnesses along with DSP Srinivasagam were watching over the Circuit House and they recorded the statements of P.Ws.11 to 13 and they found that some of the Industrial Co~operative Officers paid a sum of Rs.5,000/~ each to the 1st accused for not taking coercive steps during his visit. Therefore, the case has been registered on the next day i.e. on 26.10.2002. In order to prove the demand and acceptance of illegal gratification, the prosecution mainly relied upon the evidence of P.Ws.10 to 13 and 24 and apart from the official witness, the evidence of P.W.15, who is an individual and supplying millets to the Societies also paid a sum of Rs.15,000/~ also corroborated each other with regard to demand and acceptance of the bribe amount. Particularly, P.W.12, in his evidence clearly deposed that the second accused is the General Secretary of their Societies and he instructed to reduce the anger of the 1st respondent, all the ICOs have to pay a sum of Rs.5,000/~ each for their welfare. Accordingly, on 25.10.2012, P.W.12 met the 1st accused at Circuit House and paid the amount. Further, when P.W.13 entered into Circuit House, where the 1st accused stayed, the 1st accused asked him whether Jagadeesan conveyed the information, for which, P.W.13 told ?yes? and he further asked whether he brought money, for which, he kept the cover containing a sum of Rs.5,000/~ in the teapoy. Similarly, P.W.24,Irudhayaraj categorically stated that the first accused asked whether he brought Rs.5,000/~ as instructed by Jagadeesan and he gave the cover containing of Rs.5,000/~, wherein, he already filled his name and designation. The said covers were recovered and the same as Exs.22 and 23. Thereafter, the investigation team went inside the Circuit House and recovered the amount of Rs.1,05,370/~ and the statements were recorded from the prosecution witnesses and all the witnesses clearly corroborated the demand and payment of bribe by the 1st accused and through A2, the said amount has been accepted by the 1st accused as motive for not to take any coercive steps against the ICOs. Hence, the prosecution has clearly established the case with regard to the demand and acceptance. In support of his contention, the learned Additional Public Prosecutor relied upon the following judgments: 1.AIR 1958 Supreme Court 61 ? State of Madras V. Vaidyanatha Iyer 2.AIR 1964 Supreme Court 575 ? Dhanvantrai V. State of Maharastra 3.(1986) 2 Supreme Court Cases 716 ? R.S.Nayak Vs. A.R.Antulay 4.(1997)9 Supreme Court Cases 477 ? C.K.Damodaran Nair Vs. Govt. of India 14.The learned Additional Public Prosecutor appearing for the State would further submit that the appellant accepted the gratification from P.Ws.10 to 13 and 24 in consenting mind and the evidence also clearly corroborated each other the 1st accused through the 2nd accused conveyed the message to ICOs for pay a sum of Rs.5,000/~ each to A1 in order to reduce his anger. Accordingly, A1 received a sum of Rs.5,000/~ each from officials. Even the officials voluntarily offered any gratification in the public services, that would amount to acceptance within the meaning of Section 7 of P.C.Act. In the present case, the demand and acceptance were clearly established by the prosecution. In support of his contention, he relied upon the following decision: 1.(2015) 7 Supreme Court Cases 283 ? State of A.P. V. P.Venkateshwaralu. Thus, the learned Additional Public Prosecutor prayed for dismissal of the appeal. 15.Upon careful re~assessment of the evidence and the judgment of the Trial Court and other materials on record and submissions made by the learned counsel appearing for the parties, the following points arise for consideration in this Criminal Appeal: (i) Whether the prosecution established the demand and acceptance by the appellant from P.Ws.10 to 13 and 24? (ii) Whether the Trial Court was right in finding the appellant guilty for the offence under Sections 7 and 13(1) (a) & (d) read with 13(2) of Prevention of Corruption Act, 1988. (iii)Whether the conviction and sentence of the Trial Court warrant any interference? 16.The present case is a peculiar case, unlike a regular trap case. In a regular trap case, the prosecuting agency registered a crime based on the complaint preferred by the defacto complainant and thereafter they arrange the shadow witnesses in order to establish the trap conducted by them. However, in the present case, the appellant is an I.A.S.Officer and he is a Chief Executive of the Social Welfare Department viz., the Commissioner of Social Welfare and Nutritious Meals Programme, Government of Tamil Nadu. On 24.09.2002, a meeting was conducted by the Social Welfare Department. On that day, the officials including ICOs attended the meeting and in that meeting, all the ICOs of Tirunelveli, Virudhunagar and Madurai Districts are conveyed that the appellant/1st accused decided to visit Tirunelveli, Virudhunagar and Madurai Districts during 25.10.2002 and 26.10.2002. After completing the meeting, 2nd accused, who was working as ICO, Chinnalapatti and General Secretary of Industrial Co~operative Societies conveyed the message that on the date of visit of the 1st accused, all ICOs have to pay a sum of Rs.5,000/~ each to avoid coercive steps against them for the mistakes committed by them in their official work and the said message was exchanged between the ICOs of the said three District. 17.The said message was informed to the Directorate of Vigilance and Anti Corruption Department, Madurai. One Seenivasagam (since deceased), DSP has received the message as if the appellant decided to visit each and every Noon Meal Centres of Southern Districts and he compelled the ICOs to pay a sum of Rs.5,000/~ each for the festival of Deepavali and to verify the genuineness of the message and he instructed P.W.23 Mutharasu, Inspector of Police, to verify the genuineness of the said message. The said information was conveyed to P.W.4, District Cell Officer and arranged official witnesses and decided to watch the movement of the 1st accused. After completing the inspection, the 1st appellant reached Madurai Circuit House at about 6.00 p.m. in a Santro car and went out at 7.15 p.m. in a Qualis car and again, at about 9.45 p.m., he returned to Circuit House. At that time 5 or 6 persons, who were waiting outside were entering into suite No.7, where the appellant stayed and came out. At that time, P.Ws.4 and 23 secured P.W.11, Ganesan, who came in the car along with the appellant and on enquiry, he revealed that he paid a sum of Rs.5,000/~ to the 1st accused and his statement was also recorded and marked as Ex.P3, in which, P.Ws.4 and 5 were duly signed. Same way, P.W.12, Gunasekaran, Othakadai ICO, P.W.13Selvaraj, Kallikudi ICO have paid a sum of Rs.5,000/~ each to the 1st accused and their statements were also marked as Exs.P4 and 5, in which also P.Ws.4 and 5 were duly signed as witnesses. 18.Thereafter, the vigilance parties were decided to enquire the accused Officer and they entered in to the Suite and