BAIL SLIP The Appellant/Accused namely D.Pugazhenthi was directed to be released on bail by order of this Court dated 5.8.11 in Crl.A.479/11. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.12.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.479/2011 D.Pugazhendhi Appellant Vs State by Inspector of Police CBI/ACB/ Shastri Bhavan, Chennai-6 Respondent Prayer:- This Criminal Appeal is filed against the judgement dated 19.07.2011 passed in CC.No.39/2009 by the learned XII Additional Special Judge for CBI Cases, City Civil court, Chennai. For Appellant : Mr.P.Kumaresan for Mr.A.G.Rajan For Respondent : Mr.N.Chandrasekaran, SPP for CBI Cases JUDGEMENT The Appellant, who is the sole accused in CC.No.39/2009, has filed this Criminal Appeal against the judgement dated 19.07.2011 passed by the learned XII Additional Special Judge for CBI Cases, City Civil court, Chennai, convicting and sentencing him for the offence under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 to undergo two years Rigorous Imprisonment for each offence and to pay a fine of Rs.10,000/- for each offence, in default to undergo to undergo three months Rigorous Imprisonment and ordering the sentences to run concurrently. 2. The case of the Prosecution is as follows:- a. PW.2 L.P.Shanumugasundaram is an Advocate, practising at High Court Premises, Chennai dealing with the cases of motor accidents and other cases and PW.5 V.P.Balaji is his Junior Advocate. A case in MCOP.NO.71/2006 was filed, claiming compensation on behalf of one Mayakrishnan before the Court of Small Causes, Chennai and the said case was settled in the Lok Adalat for a sum of Rs.3,25,000/- on 25.4.2009 and an award was also passed to that effect. The United India Insurance Co. https://hcservices.ecourts.gov.in/hcservices/ Limited was directed to deposit the award amount within a period of eight weeks from the date of receipt of a copy of the said order. On nearing completion of eight weeks, since the amount was not deposited, PW.2 contacted the accused, who was the Divisional Manager, United India Insurance Co. Limited, Saligramam, through his mobile phone on 11.06.2009, to which the Appellant/accused asked him to come and contact him in person. Therefore, he sent his junior PW.5 on 12.6.2009, who met the Appellant in his Office at Saligramam and enquired about the deposit of the award amount. Since the accused had asked his senior to come in person, the same was intimated to PW.2 by PW.5 over phone. Thereafter, on 13.6.2009, PW.2 after attending the cases in the Lok Adalat, he contacted the accused through his mobile phone and enquired about the issuance of cheque for the award amount to Mayakrishnan. The accused replied that at least 1% of the award amount is spent, the cheque would not be made ready and further asked him to come and contact him in person. Again on 15.6.2009, at about 4.00 p.m., PW.2 contacted the accused through mobile phone of his senior colleague one Lobamuthira and the accused asked him to come and meet him in person. Thereafter, on the same day, he went and met the accused and at that time, the accused demanded a sum of Rs.3000/- as bribe amount to obtain the cheque and on payment of such amount, he would deposit the cheque in the court. PW.2 contacted his client Mayakrishnan and apprised him of the fact, but Mayakrishnan was not willing to pay any bribe amount and therefore, requested PW.2 to take any action, for which he would agree. b. On 16.6.2009, after finishing all the cases, PW.2 went to CBI Office at Shastri Bhavan at about 2.30 p.m. and gave a written complaint Ex.P3 to the Superintendent of Police, CBI Chennai. At about 2.45 p.m. the Superintendent of Police called PW.4 R.Purushotham, the Inspector of Police, CBI, Chennai and introduced him to PW.2. The Superintendent of Police handed over the complaint to the Inspector for verification and Registration of the case, who in turn caused verification of the complaint and after satisfying himself registered a First Information Report in RC.No.34/A/2009 at about 3.15 p.m. Ex.P11. He made arrangements for two independent witnesses, namely, Jagadesh Prasad, Manager, Vijaya Bank and PW.3 Rengaraj, Inspector of Central Excise. They were summoned to the CBI Office and they were given a copy of the complaint. PW.4 asked PW.2 to produce the bribe amount and PW.2 gave Rs.3000/-, two currency notes of Rs.1000/- denomination and two currency notes of Rs.500/- denomination. The numbers of the said notes were noted down in the First Mediation Report Ex.P4. Thereafter, PW.4 demonstrated the phenolphthalein test and also explained the significance of the test to PW.2 and the other witnesses PW.3 Rengaraj and Jagadesh Prasad. The currency notes were kept in the left hand side shirt pocket of the complainant. PW.4 instructed PW.2 not to touch the currency notes, until the accused demanded it and he also instructed PW.3 to accompany the complainant PW.2 and to listen the conversation between PW.2 and the accused and to watch the happenings. c. Before leaving the CBI Office, as per the instructions, PW.4 and PW.2 called the accused from his mobile phone by putting speaker on, so as to enable the others to hear the https://hcservices.ecourts.gov.in/hcservices/ conversation between PW.2 and the accused, where the accused informed him to come to his office on that day itself. All the proceedings were recorded in Ex.P4 and it was concluded at 4.15 p.m. d. Thereafter, PW.2, PW.3 and the other independent witnesses, PW.4 proceeded to the Branch Office of the said Insurance Company at Saligramam in PW.2' s Car and the other members followed in their own office vehicle and they reached the Office of the accused at 5.30 p.m. As soon as they entered into the cabin of the accused, PW.2 introduced PW.3 as his clerk to the accused. The accused asked them to be seated in the seats in front of him and told PW.2 that he had verified the file and if he pays Rs.3000/- as bribe amount, he will deposit the cheque on the next day. PW.2 told the accused that he will pay the amount on that day itself and asked the accused to deposit the cheque on that day itself, but, the accused told PW.2 that the cheque would be ready only on the next day and asked PW.2 to collect the cheque through him or through his clerk and deposit the same into the court and bring the acknowledgment. Then, PW.2 took the bribe amount from his left hand side shirt pocket and handed over the same to the accused, who, after receiving the same with right hand, kept it in his right pant pocket. PW.2 and PW.3 came out and PW.2 gave the pre-arranged signal by removing his spectacle and the accused also followed them and came out of the cabin. On seeing the pre-arranged signal, PW.4 and other team members rushed to the cabin of the accused and PW.2 identified the accused to PW.4, the Inspector of Police, who asked the accused to come into the cabin of the accused. PW.2 and PW.3 remained outside the cabin. PW.4 introduced himself as the CBI Officer. Immediately, the accused fell on the feet of PW.4 and asked him to excuse him and he will not receive any bribe amount in future and he also pleaded that he is having a family. Further, he took the money from his right pant pocket and kept it on the table. e. As per the instructions of PW.4, sodium carbonate solution was prepared and accused was asked to dip his right hand fingers in the said solution and the solution turned into pink in colour, which was collected in a bottle, sealed, labeled and marked as 'A', which is MO.1. Another solution was prepared and the accused was asked to dip his left hand fingers, which also turned into pink in colour and the said solution was collected in a bottle, sealed, labeled and marked as 'B', which is MO.2. One of the independent witnesses, Jagadesh Prasad compared the numbers of the currency notes with that of the numbers entered in the First Mediation Report Ex.P4, which tallied. Then, the accused was provided with a lungi and he handed over his pant to the Officers, which was also subjected to phenolphthalein test and his right side pant pocket was subjected to sodium carbonate solution test and it also proved positive. This solution was transferred into a bottle, sealed, labeled and marked as 'C" marked as MO.3 The seized currency notes were marked as MO.4. The pant was seized, labeled and marked as MO.5. PW.4 arrested the accused at about 7.30 p.m. and a search was conducted at the office premises of the accused and Ex.P7 search list was prepared. He also drew Ex.P8 and Ex.P9 sketches of trap spot and took specimen impression of the brass https://hcservices.ecourts.gov.in/hcservices/ seal used for sealing the MOs in a separate white sheet, which was marked as Ex.P10. The entire happenings at the Insurance Company at Saligaramam were recorded in Ex.P5 Second Mediation Report, which was concluded at 9.45 p.m. f. After the accused was remanded to judicial custody, the case was handed over to Kumaresan, Inspector of Police, CBI, Chennai for further investigation as per the orders of the Superintendent of Police. A memo was filed on 12.09.209 before the Principal Special Judge for CBI cases, Chennai to permit PW.8, Vijaya Vaishnavi, Sub Inspector of Police, CBI/ACB/Chennai to investigate the case further. Then, the case was transferred to PW.8 for further investigation. As per the orders passed by the Principal Special Judge for CBI Cases, Chennai dated 15.07.2010, PW.8 examined Jagadesh Prasad and others witnesses. In the mean while, the material objects were sent to the forensic department for chemical test. On receipt of Ex.P21 chemical analysis reports and after completing investigation, PW.8 sent the entire file to the Superintendent of Police and forwarded the same to the competent authority for obtaining sanction for prosecution of the accused. g. PW.1 M.Elango, who was working as Deputy General Manager in the Regional Office, UIIC Limited, Chennai, was the competent authority for initiating disciplinary action against the persons working as Divisional Manager in the Office of UIIC Limited and he accorded sanction Ex.P1. PW.8, after completing investigation, filed the charge sheet against the accused under Section 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act on 13.11.2009 before the Principal Special Judge for CBI Cases, Chennai. 3. The case was taken on file in CC.No.392/2009 by the learned Principal Special Judge for CBI Cases, Chennai and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined as many as 8 witnesses (PW.1 to PW.8) and also relied on Exs.P1 to P22 and marked five material objects (Mos.1 to 5). 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of the Prosecution's witnesses and the accused has come with the version of total denial and stated that he has been falsely implicated in this case. 5. On the side of the defence, one Nithya Ranjani, who was working as the Administrative Officer, UIIC Limited, Divisional Office 26, Saligramam, Chennai was examined as DW.1 and the accused examined himself as DW.1 and Ex.D1 was marked. 6. The evidence of DW.1 disclosed that she was looking after the third party claims and the accused was overall in-charge of Policy Issuing Department, Claims Department, Accounts Department, Marketing Department and General Administration. Apart from that, he used to attend claims inspection, Lok Adalat and https://hcservices.ecourts.gov.in/hcservices/ visit clients for getting business. Her evidence further disclosed that on 25.4.2009, the claim in respect of MCOP.No.71/2006 was settled in Lok Adalat for a sum of Rs.3,25,000/- as against the total claim of Rs.8,00,000/-. She was on casual leave from 2.6.2009 to 4.6.2009 and again on 8.6.2009. She attended the office on 1.6.2009, 5.6.2009 and 9.6.2009. She has stated that as per Ex.P19 covering letter, Ex.P13 Lok Adalat order was received in their office on 5.6.2009. Her evidence indicated that it is the normal procedure that Lok Adalat order would be received by the thirty party claims Department, in which she was in-charge, and would be processed and forwarded to the Divisional Manager for sanction of the amount. After sanction, the file would be sent to the Accounts Department for preparing cheque. Since she was on leave after 5.6.2009, one C.V.Manimuthalagi, the Senior Assistant had processed the file and had prepared the note after verifying the documents. Her evidence further disclosed that the insurance certificate in the present claim was in the name of Gopalakrishnan, as per Ex.P6 and RC Book is in the name of C.Ramesh. Therefore, she has stated that there was discrepancy in the insurance certificate. Before according sanction, legal opinion was obtained from their panel Advocate on 24.6.2009 and cheque was prepared on 1.7.2009 i.e. after the trap. 7. The evidence of DW.2 disclosed that DW.2, assisted by their panel of Advocates in the Lok Adalat, initially agreed for a settlement of Rs.2,25,000/-, but however, through negotiations, the amount was finally settled for Rs.3,25,000/- and Ex.P13 order was passed. The Lok Adalat order was received by their Office on 5.6.2009. As per Ex.P19, eight weeks time expired on 4.8.2009. DW.1 was on encashment leave for 15 days. DW.2 received Ex.P13 order on 56.2009 and forwarded it to the third party claim Department for processing. After scrutiny by the Administrative Officer, the file would be sent to DW.2 for sanction. Since DW.1 was on leave, one Manimuthazhagi was processing the said file. DW.2 was informed that there was technical problem and discrepancy in the claim that RC is in the name of C.Rajesh and the Policy is in the name of Gopalakrishnan. DW.2 further stated that when PW.5 Balaji Junior Advocate of PW.2 contacted the accused on 12.06.2009, he told him about the discrepancy in the claim and asked his senior to clarify. But, PW.2 did not come and meet him to clarify the said position. Thereafter, on 16.06.2009 PW.2 entered into the cabin of DW.2 along with another person and introduced him as his clerk. The accused asked PW.2 to clarify the discrepancy in the Insurance Certificate and PW.2 promised to clarify the same on the next day. 8. While leaving the cabin, PW.2 thrust the money into his hand under the pretext of shaking hands with him. The accused got shocked and wanted to return the money and therefore, he came out of the cabin following PW.2 and PW.3. Since his staff were available nearer to the cabin, to avoid embarrassment, the accused put the money into his pant pocket. By that time, CBI Officials came and asked the accused to take out the money. According to the accused, PW.2 was totally unhappy about the settlement, as he https://hcservices.ecourts.gov.in/hcservices/ wanted the settlement for Rs.5,00,000/- and he had grudge against the accused and he thought that at the intervention of the accused, the amount was settled for Rs.3,25,000/- and not for the amount expected by him. Therefore, in order to wreck vengeance on him, he made a false complaint against DW.2 before CBI. 9. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 10. This court heard learned counsel on either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgment of conviction 11. Mr.P.Kumaresan, the learned counsel for the Appellant contended that the evidence of PW.2 cannot be accepted on any reasonable standard and that PW.2 Shanmuga Sundaram, Advocate was inimical towards the Appellant and had a motive to falsely implicate the Appellant, as he was under the impression that the amount settled in the Lok Adalat was considerably reduced at the instance of the Appellant, who participated in the Lok Adalat as the Divisional Manager. The learned counsel laid much stress and pointed out that one Mayakrishnan the client of PW.2, whose claim was settled in the Lok Adalat and who being the aggrieved person, has not preferred any complaint for the alleged demand of bribe made by the Appellant. He would point out that the said Mayakrishnan has not been examined before the court to lend any corroboration to the version of PW.2. He would submit that there is no semblance of evidence to indicate from PW.5's evidence, who is the junior Advocate to PW.2 and who had met the Appellant on 12.6.2009, that the Appellant was interested in taking a bribe from PW.2 and indicated the same to PW.5 that only in the event of receiving the bribe, he would prepare the cheque for the amount settled. The learned counsel also pointed out that the evidence placed on record clearly indicated that the accused was not in a position to favour the complainant/ PW.2 for the issuance of the cheque and the positive case of DW.1, Administrative Officer of the United India Insurance Company Limited, where the accused worked as the Divisional Manager, is that the file regarding the claim would be processed by her and it would be forwarded to the Divisional Manager only for sanction and thereafter, to the Accounts Department for preparing the cheque. It was also pointed out that DW.1 was on leave and one C.V.Manimuthalagi, a Senior Assistant was placed in charge for processing files and there was no occasion or necessity for the accused to demand any bribe. 12. Per contra, Mr.N.Chandrasekaran, the learned Special Public Prosecutor, vehemently, submitted that whatever may be the nature of evidence in this case, but, it is an established fact that the money had been recovered from the Appellant and that by itself is sufficient for the conviction of the accused. The learned Special Public Prosecutor would submit that even if it is assumed that the complainant had any grievance against the https://hcservices.ecourts.gov.in/hcservices/ Official, it only requires that his evidence be scrutinized with care and his testimony cannot be rejected on that score. He would submit that the version of PW.2 and PW.3 would sufficiently establish the fact that the accused accepted the tainted currency notes. It is also duly proved that he had demanded the bribe amount from PW.2. Hence, the learned Special Public Prosecutor would submit that the legal presumption available under Section 20 (1) of the Prevention of Corruption Act should be raised and he supported the impugned judgement of conviction and sentence passed by the learned Special Judge. 13. At the outset, it is relevant to state that the demand of illegal gratification is a sine quo non for constitution of an offence under the provisions of the Act. For arriving at the conclusion whether all the ingredients of an offence, viz. demand, acceptance and recovery of the amount of illegal gratification, have been satisfied or not, the court must take into consideration the facts and circumstances brought on record in their entirety. For the said purpose, no doubt, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration, but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the Prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the Prosecution. Even while invoking the provisions of Section 20 of the Prevention of Corruption Act, the court is required to consider the explanation offered by the accused only on the touchstone of preponderance of probability and not on the touchstone of proof beyond reasonable doubt. 14. The star witness, who had given the complaint to the CBI on 16.6.2009, whereupon the whole process of the trap by the CBI had been schemed out and carried on, is PW.2. In the present case, the Prosecution has essentially relied upon the evidence of PW.2, who is an Advocate, from whom the Appellant is said to have demanded bribe for issuance of cheque for the amount, which was, admittedly already, settled in the Lok Adalat. It is also seen that eight weeks time was granted by the Lok Adalat for deposit of the amount before the Small Causes Court by the Insurance Company. PW.2 admitted that the time for deposit expired only on 25.6.2009, as the settlement was made on 25.4.2009. But, even before the expiry of the time, PW.2 is said to have contacted the Appellant for the issuance of cheque viz. even on 11.6.2009 through phone. According to PW.2, the Appellant asked him to come in person. He had sent his Junior PW.5, to whom also the presence of PW.2 was insisted by the Appellant. Admittedly, no demand was made to PW.5 nor there was an indication from PW.5's evidence to the effect that the Appellant was interested in taking a bribe. In fact, PW.5 has admitted in his evidence that the claim form submitted to the Insurance Company regarding the policy concerned was not in the name of the claimant. He does not deny the suggestion that only to clarify such position, his senior namely PW.2 was asked to meet the Appellant, but however denies knowledge about the same. https://hcservices.ecourts.gov.in/hcservices/ 15. The plea of the Appellant consistently throughout the proceedings is that he has been made a victim of the complainant's grudge against him for not getting the amount settled for a higher amount as expected by him due to intervention of the Appellant during the settlement. The evidence revealed that the Appellant participated in the Lok Adalat, in which the claim was settled for a sum of Rs.3,25,000/- as against a claim of Rs.8 lakhs. PW.2 is an interested witness. The image and impression that could be gathered, on reading and appreciating the evidence of PW.2 and his conduct in approaching the Appellant even before the expiry of stipulated time for deposit and persistently asking the Appellant for the issuance of cheque, is that he had some ulterior motive to implicate the Appellant. In such view of the matter, his evidence must be considered with great caution and his evidence can be accepted only when there is corroboration for the demand of bribe made by the Appellant by any other independent evidence. 16. In the present case, it is the categoric version of PW.2 that when a demand was made by the Appellant, he immediately contacted his client, namely, Mayakrishnan over phone and the latter authorised him to take any appropriate action. Admittedly, the complaint is not given by the said Mayakrishnan. It is not the case of PW.2 that decoy amount was paid by the said Mayakrishnan. He was examined by the Police during investigation. For best known such a vital important witness has been withheld by the Prosecution from being examined before the court, particularly, when he is the aggrieved person, to whom PW.2 has informed about the demand and got his tacit approval for taking action against the Appellant. It is no doubt true that the Prosecution is not supposed to examine each witness cited, but a material witness, who is required to be examined, should be examined. That too, when a witness is not to lead evidence, which can be said to be duplication in nature and such a witness is competent to state certain additional relevant facts, then, non- examination of such a witness by the Prosecution makes the Prosecution case infirm. In view of the aforesaid facts and circumstances, no safe reliance could be placed on PW.2's evidence, in the absence of any corroboration by independent evidence, more so, when such evidence was available in this case, but withheld by the Prosecution from examination before court. Non examination of Mayakrishnan before the court assumes importance, because nothing could be inferred from the Junior of