In the High Court of Judicature at Madras Dated: 05/03/2003 CORAM The Hon'ble Mr.Justice P.D.DINAKARAN Criminal Appeal No.490 of 1996 and Criminal Appeal No. 248 of 1997 Crl.A.No.490 of 1996 M.Ramachandran .. Appellant -Vs- The State rep. by Deputy Superintendent of Police, Vigilance and Anti Corruption Department, Salem. .. Respondent Crl.A.No.248 of 1997 State by Deputy Superintendent of Police, Vigilance and Anti Corruption, Salem, rep. By the Public Prosecutor, High Court Madras. .. Appellant Vs S.Senkottaiyan .. Respondent Prayer:- Appeals are directed against the judgment of conviction and sentence dated 12.6.1996 in S.C.C.No.118 of 1990 passed by the learned Special Judge-cum-I Additional District Judge and Chief Judicial Magistrate, Salem. !For Appellant : Mr.S.Ashok Kumar in Crl.A.490/1996 for Mr.T. Susindran ^For Respondent : Mr.V.Kathiravan in Crl.A.248/1997 for Mr.M.Ravi For Appellant : Mr.V.M.Rajendran in Crl.A.248/1997 Addl. Public Prosecutor and for respondent and in Crl.A.490/1996 Mr.K.V.Jeyprakash Narayanan, Govt. Advocate (Crl Side) :JUDGMENT Heard. 2.1. These appeals are directed against the judgment dated 12.6.199 6 made in S.C.C.No.118 of 1990 of the learned Special Judge-cum-I Additional District Judge and Chief Judicial Magistrate, Salem, convicting the first accused who was facing trial for the offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'Act') and sentencing him with rigorous imprisonment for one year with a fine of Rs.500/-, in default to undergo rigorous imprisonment for one month, for the offence punishable under Section 7 of the Act, and with rigorous imprisonment for one year with a fine of Rs.500/-, in default to undergo rigorous imprisonment for one month, for the offence punishable under Section 13(2) r/w 13(1)(d) of the Act; and acquitting the second accused, who was facing trial for the offences punishable under Sections 7 r/w 12 and 13(2) r/w 13(1)(d) of the Act. 2.2. Assailing the judgment of conviction dated 12.6.1996, the first accused has preferred Crl.A.No.490 of 1996, and challenging the judgment of acquittal of the second accused, the State has preferred Crl.A.No.248 of 1997. 2.3. Since both the appeals arise from the same judgment dated 12.6.1996 made in S.C.C.No.118 of 1990 of the learned Special Judge-cum-I Additional District Judge and Chief Judicial Magistrate, Salem, they were heard and disposed of together. 2.4. For the purpose of convenience, the parties are arrayed as per their rank before the trial Court. Accordingly, the appellant in Crl.A.No.490 of 1996 is referred to as the first accused, respondent in Crl.A.No.248 of 1997 is referred to as the second accused, and the respondent in Crl.A.No.490 of 1996 and the appellant in Crl.A.No.248 of 1997 is referred to as the complainant. 3. In a nutshell, the first accused was working as a Taluk SubInspector of Survey, in Namakkal Taluk and the second accused was working as a Firka Surveyor in the Namakkal Taluk during the relevant period, namely during October to December, 1989, and therefore, both the accused are public servants. The first accused was charged for the offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of the Act and the second accused was charged for the offences punishable under Sections 7 r/w 12 and 13(2) r/w 13(1)(d) of the Act, with reference to an alleged occurrence of having demanded and accepted bribe of Rs.50 0/- from one Thiru.C.Loganathan (P.W.1) as gratification other than legal remuneration for processing the application dated 11.10.1989 ( Ex.P1) of P.W.1 and that of his uncle Thiru.Kandaswamy (P.W.3) for sub-dividing their lands and issuing separate pattas. 4. Either the demand or acceptance of gratification other than the legal remuneration as a motive or reward in the exercise of an official duty by a public servant amounts to an offence and criminal misconduct punishable under the provisions of the Act. Whether the first and second accused are liable to be punished for such offences is the core question to be answered in these appeals. 5.1. In brief, the case of the prosecution as unfolded by P.W.1 is that P.W.1 and P.W.3, placing reliance on the decree and judgment dated 31.7.1973 in O.S.Nos.792, 592 and 707 of 1972 of the learned District Munsif, Namakkal (Ex.P4), and the decree and judgment dated 24.2.1 989 in R.E.P.No.81 of 1987 in O.S.No.503 of 1986 (Ex.P5) respectively, and other supporting documentary evidence such as Chitta Book (Ex. P3), and sale deed dated 31.8.1989 (Ex.P6), by their applications even dated 11.10.1989 (Exs.P1 and P19 respectively), after paying necessary fee under challan dated 7.10.1989 (Ex.P2), applied for survey and revenue sub-division of their lands and for issuance of separate pattas. 5.2. On the basis of the said application (Ex.P1), the second accused visited the village in November, 1989 and surveyed the lands of P. W.1 and also required P.W.1's uncle P.W.3 to pay separate fees for resurvey and for grant of separate patta for his lands. Accordingly, P.W.3 paid a sum of Rs.12/- under challan dated 12.12.1989 (Ex.P7). After ten days, i.e., on 22.12.1989, at about 1.00 p.m. P.Ws.1 and 3 went to the Taluk office and enquired the second accused about the separate pattas, and the second accused informed them that he had already submitted his report and asked P.Ws.1 and 3 to meet first accused for further progress in the matter. 5.3. P.Ws.1 and 3 met the first accused on the same day, namely on 2 2.12.1989, and requested him to do the needful for getting their pattas. The first accused told P.Ws.1 and 3 that he had already received the report, but wanted Rs.500/- as bribe to do the needful in the matter. When P.W.1 explained his inability to pay the amount, it was made clear that nothing could be done without obliging the said demand. The first accused also wanted P.W.1 to come with the amount at 11.00 a.m. on 26.12.1989, so that he would complete the entire formalities within five or six days thereafter. 5.4. As P.W.1 was not willing to pay any bribe, he approached the office of the Deputy Superintendent of Police, Vigilance and Anti Corruption Department, Salem with Rs.500/- (M.Os.1 to 3 series) at about 7 .30 a.m. on 26.12.1989 and lodged a complaint (Ex.P8) narrating the demand of bribe by the first accused. Based on the said complaint, the Deputy Superintendent of Police, Vigilance and Anti Corruption Department, Salem (P.W.10) registered a F.I.R. on 26.12.1989. 5.5. After registering the F.I.R. the investigating officer (P.W.10) prepared two trap witnesses, namely (i) M.Jayapal (P.W.2), who was working in the Electricity Board, Sornapur, and (ii) Palanisamy, who was working in the Agricultural Department, and introduced them to P. Ws.1 and 3. Both the trap witnesses were also permitted to read the complaint (Ex.P8) filed by P.W.1. Thereafter, P.W.10 made preparations for trapping. P.W.10, received Rs.500/- from P.W.1 as per the following denominations (M.Os.1 to 3 series) bearing numbers, as detailed hereunder: i.Rupees Hundred Currency - 4 Nos. a) 4FT 297690 b) 8CT 774792 c) 7KV 761593 d) 8GU 780817 ii.Rupees Twenty Currency - 3 Nos. a) 51V 638287 b) 14B 895982 c) 42F 823598 iii.Rupees Ten Currency - 4 Nos. a) 32T 735902 b) 49H 149687 c) 09G 381964 d) 44G 541252 Thereafter, P.W.10 showed the currencies (M.Os.1 to 3 series) to the trap witnesses. P.W.10 took one glass of water, added chemical powder (Sodium Carbonate powder) and asked the trap witnesses to immerse their fingers into the solution, and required them to observe that there was no change in the colour of the solution. Then, P.W.10 dusted phenolphthalein powder on the currencies, required the trap witnesses to count the currencies and immerse their fingers in the Sodium Carbonate Solution, and it was observed that the solution turned into purple-red colour. The solution was put into a separate bottle with a mark "S1" (M.O.4). The balance of phenolphthalein powder after dusting the currencies of Rs.500/- was kept in a separate bag marked as " A" (M.O.5), and the balance of Sodium Carbonate after preparing the solution was kept in a separate bag marked as "B" (M.O.6). Thus, P.W.10 explained the procedure of conducting the trap and handed over the amount of Rs.500/- dusted with phenolphthalein powder to P.W.1 and required him to meet the first accused and pay him if demanded and to give signal to the trap squad immediately. Thereafter, P.W.1 and the trap witness P.W.2 went to the office of the first accused, as recorded under the mahazar marked as Ex.P10, duly signed by P.W.1, P.W.2 and Palanisamy (trap witness). 5.6. As directed by PW10, PW1 and PW2 reached the Namakkal Taluk Office at about 11.15 a.m. on 26.12.1989, went to Survey Section, met the first accused and asked him to send the file to the Tahsildar to get orders for issuance of separate pattas. Immediately, the first accused enquired whether PW1 brought Rs.500/- as demanded. After confirming that PW1 had brought Rs.500/-, the first accused told that he had not received the reports from the second accused with respect to resurvey and issuance of separate pattas for the lands of PW3 and therefore, required P.Ws.1 and 2 to meet him after the arrival of the second accused. At about 1.30 p.m. on 26.12.1989, the first accused went for lunch and asked PW1 and PW2 to wait for the second accused, who would come shortly and therefore, PW1 and PW2 sat in the verandah. The first accused returned to section at 2.15 pm and the second accused came to the office at 3 p.m. As required by the first accused, P.Ws.1 and 2 took the second accused to the first accused. The second accused informed that he had already submitted the report relating to resurvey and sub-division of lands of P.W.3 on 22.12.1989 itself, and they were in order. Thereafter, the first accused asked the second accused to accept Rs.500/- that would be given by PW1, and required PW1 to hand over Rs.500/- to the second accused. Hence, PW1, the trap witness (PW2) and second accused came out of the office and PW1 took Rs.500/- from his pocket and gave it to the second accused, as demanded by the first accused, in the presence of PW2. After counting the said amount, the second accused kept the same in his pant pocket, in the presence of PW1 and PW2. In no time, at 3.20 pm, on a signal given by PW1, the trap squad reached the second accused. Then the trap squad led by P.W.10 went to the Survey Section along with the second accused, P.W.1 and P.W.2, where identified by P.W.1, the first accused was enquired about the demand of bribe. P.W.10, thereafter, took two glasses of water and added Sodium Carbonate powder and asked second accused to immerse both the hands and observed that the solution turned purple-red; poured the solution in two bottles; and marked the solution in which second accused immersed his right hand as "S2" ( M.O.7) and left hand as "S3" (M.O.8) and kept the same under seal. During the enquiry the second accused admitted that he accepted the amount of Rs.500/-, from P.W.1 and kept the same in his left side pant pocket, and produced the same. The numbers of the said currencies tallied with the numbers mentioned in the mahazar (Ex.P10). The amount of Rs.500/- was seized as M.Os.1 to 3 series under Mahazar Ex.P16. The second accused was given one set of dress and the left side pocket of the pant, which he was wearing at the time of accepting bribe from PW1, was immersed in the solution and observed that it turned purplered; and the said solution was poured in a bottle and marked as "S4" (M.O.9), the pant which second accused was wearing was marked as M.O.1 0. Then, P.W.10 arrested the first accused and second accused. 6.1. Pursuant to the said trap conducted on 26.12.1989, the Investigating Officer (P.W.10) collected further evidence from P.Ws.4, 5, 6 and 7, who are working in the Revenue Department as Senior Draftsman, Junior Assistant, Deputy Inspector of Survey, and the Village Administrative Officer respectively, and got a sanction from the Assistant Director of Survey & Land Records (P.W.9), the sanctioning authority under Section 19 of the Act, for prosecuting the first and second accused, and laid charge sheets against the first and second accused as follows: Charges against the first accused: 1. That the first accused being a public servant while employed as Deputy Surveyor, Namakkal Taluk on 26.12.1989 at about 3.20 p.m. at the Taluk Office, Namakkal agreed to accept from one Loganathan a sum of Rs.500/- through second accused for the first accused as gratification other than legal remuneration as a motive or reward in the exercise of your official duty as Deputy Surveyor for processing and to do the needful on the application given by Loganathan and his Uncle on 11 .10.1989 for subdividing their lands and to give separate pattas and that the first accused thereby committed an offence punishable under Section 7 of the Act. 2. Additionally, that the first accused on 26.12.1989 at about 3.20 p.m. at the Taluk Office, Namakkal obtained from one Loganathan a sum of Rs.500/- through second accused by criminal misconduct as gratification other than legal remuneration (pecuniary advantage) as a motive or reward in the exercise of the first accused's official duty as Deputy Surveyor for processing and to do the needful on the application given by Loganathan and his uncle on 11.10.1989 for subdividing their lands and to give separate pattas and that the first accused thereby committed an offence punishable under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. Charges against the second accused: 1. That the second accused on or about the same time and place and in the course of the same transaction as mentioned in Charge No.1 of the first accused, abetted first accused in the commission of the offence of taking gratification other than legal remuneration in respect of an official act being a public servant, by receiving the amount of Rs.500/- from the said Loganathan on the instructions of first accused and such act of first accused was committed in consequence of abetment and the second accused thereby committed an offence punishable under Section 7 read with Section 12 of the Prevention of Corruption Act. 2. Additionally, that the second accused about the same time and place and in the course of the same transaction as mentioned above, abetted first accused in the commission of the offence of taking gratification other than legal remuneration (pecuniary advantage) in respect of an official act being a public servant, by obtaining the amount of Rs.500/- from the said Loganathan on the instructions of first accused and such act of first accused was committed in consequence of abetment and the second accused thereby committed an offence punishable under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. 6.2. Since both the accused denied the charges, they were tried for the said charges in S.C.C.No.118 of 1990 by the learned Special Judge-cum-I Additional District Judge and Chief Judicial Magistrate, Salem. 7.1. To substantiate the above charges, the prosecution examined 10 witnesses, of whom P.Ws.1 and 3 are the aggrieved parties who lodged the complaint before the Deputy Superintendent of Police, Vigilance and Anti Corruption Department, Salem. P.W.2 is the trap witness. P. Ws.5 and 6 are the witnesses from the Revenue Department, who spoke about the demand on 22.12.1989 and 26.12.1989 and the acceptance of the same by the first and second accused. P.W.7 is the Village Administrative Officer of Rasipalayam Village, who deposed that even though the first accused visited Rasipalayam Village on 22.12.1989, he left Rasipalayam Village at 11.30 a.m. itself to Namakkal, to corroborate the case of the prosecution that the first accused was present in the office at about 1.00 p.m. on 22.12.1989. P.W.9 is the sanctioning authority under Section 19 of the Act, who gave sanction for prosecuting the first and second accused. 7.2. That apart, 35 documents were marked as Exs.P1 to P35, on behalf of the prosecution, of them the following are relevant to be referred to: Ex.P1 the application given by P.W.1 for resurvey and issuance of separate patta for his lands Ex.P2 challan for the payment of Rs.6/- for sub division Ex.P3 copy of the chitta Ex.P7 the challan for the payment of Rs.12/- Ex.P8 complaint given by PW1 to the Deputy Superintendent of Police, Vigilance & Anti Corruption Department, Salem Ex.P9 acknowledgment for the receipt of a copy of the FIR Ex.P10 mahazar prepared in the Office of P.W.10 for recovery of M.Os.1 to 6 Ex.P11 file relating to application of PW1 seized from PW4 Ex.P14 Office note with regard to application of PW3 for resurvey and issuance of separate patta for his lands Ex.P15 attendance register of the first accused Ex.P16 mahazar prepared in the Taluk Office for recovery of the amount of Rs.500/- Ex.P17 6(II) Register seized in Taluk Office with respect to the attendance of the first accused Ex.P18 map prepared at the place of occurrence Ex.P19 application given by PW3 for separate patta Ex.P20 note with regard to the application of PW1 made in Ex.P17 Ex.P21 note with regard to the application of PW3 made in Ex.P17 Ex.P22 list of sub division petitions from 1.10.1989 to 31.10.1989 Ex.P23 list of petitions from 1.11.1989 to 30.11.1989 Ex.P24 report sent by second accused with regard to the application of PW1 Ex.P25 report sent by second accused with regard to the application of PW3 Ex.P26 order of Sub Division Tahsildar with regard to the application of PW1 Ex.P27 order of Sub Division Tahsildar with regard to the application of PW3 Ex.P28 Fortnightly diary of the first accused Ex.P29 report of the first accused for inspecting Rasipalayam Village Ex.P30 fortnightly diary of the second accused for December 1989 Ex.P31 requisition for chemical examination of M.O.4 to M.O.10 Ex.P32 letter of the Court for sending M.O.4 to M.O.10 for chemical examination Ex.P33 analysis report Ex.P34 sanction order by PW9 to initiate prosecution against the first and second accused Ex.P35 FIR prepared by PW10 8.1. Even though, P.W.1 categorically deposed that the first accused demanded illegal gratification from him to discharge public duty with respect to the applications of P.Ws.1 and 3 for resurveying their lands and issuing separate patta, in his cross-examination, P.W.1 deposed that he, however, never made any complaint against the second accused, and that the second accused did not demand any money from P.W.1 on 26.12.1989; nor the second accused accepted the money for himself. 8.2. Similarly, P.W.3 - Kandasamy, who is nonetheless the uncle of P.W.1, deposed that the first accused demanded money for resurveying the land and issuing separate patta, and stated that the second accused never rejected his application. 8.3. PW4 - Srinivasan, who was working as a Senior Draftsman at Namakkal from 15.9.1989, deposed that the first accused was working in the taluk office after 1.00 p.m. on 22.12.1989 and at that time, two persons from Karadipatti village came and were talking with the first accused, and that the first accused was working in the office on 26.12.1989 also. P.W.4 further deposed with reference to the attendance register (Ex.P15), that the first accused was on inspection duty at Rasipalayam village on 22.12.1989, and as per daily register (Ex.P30) the second accused was working in the office on 22.12.1989. 8.4. PW5 - Kamaraj, who was working as a Junior Assistant, Despatch Section in the Taluk office during the year 1989 deposed that on 26.1 2.1989, he saw the officers from Vigilance and Anti Corruption Department, at the taluk office between 3.00 and 3.15 p.m. conducting an enquiry with the first accused with respect to the files (Ex.P12) relating to the lands owned by P.W.3. As per Ex.P12, the second accused forwarded his report on 22.12.1989 itself with respect to the resurvey, sub-division of lands and issuance of separate pattas. 8.5. PW6 - Ramalingam, who was working as Deputy Inspector of Survey, in Survey section at Namakkal Taluk Office in the year 1989 deposed that the first accused was working in the office at about 1.00 p.m. on 22.12.1989. 8.6. P.W.7 - Kandasamy, who was working as a Village Administrative Officer of Rasipalayam Village in Namakkal deposed that the first accused came to Rasipalayam Village at about 10 a.m. on 22.12.1989, to measure the ten acres of lands of one Natesan and after completing the measurement work he left Rasipalayam at 11.30 a.m. for Namakkal. 8.7. P.W.9 - Bakthavatsalam was the Assistant Director of Survey & Land Records, who accorded sanction for prosecuting the first and second accused as contemplated under Section 19 of the Act. 8.8. P.W.10 - Krishnasamy is the investigating officer who conducted the trap against the first and second accused after following the procedures contemplated, strictly in accordance with law. He, graphically, narrated about the trap conducted by him on the first and second accused, viz., (i) identifying independent trap witness, a Government servant (P.W.2); (ii) explaining P.W.2 about the complaint made by P.Ws.1 and 3 against the public servants, viz., the first and second accused, with respect to the demand of illegal gratification; (iii) explaining the procedure relating to the trap as narrated in detail above; (iv) the events taken place immediately after the receipt of illegal gratification by the second accused and the procedure followed thereafter, as explained above; (v) with respect to the evidence collected from P.Ws.4, 5, 6 and 7, who are working in the Revenue Department, to prove that the first accused demanded illegal gratification from P.W.1 at about 1.00 p.m. on 22.12.1989 and again on 26.12.1989; ( vi) obtaining sanction from P.W.9 for prosecuting the first and second accused, as contemplated under Section 19 of the Act; and (vii) with respect to the forwarding of material objects for chemical analysis and receipt of the analysis report (Ex.P33). 9. While questioning under Section 313 Cr.P.C., the first and second accused denied charges framed against them and pleaded not guilty. 10.1. It was contended on behalf of the first accused that he never demanded bribe as he was not present in the office on 22.12.1989, but was "on duty" at Rasipalayam Village for inspection and measurement of ten acres of land of one Natesan, even as per Ex.P15, attendance register, which corroborates with the evidence of the Village Administrative Officer (P.W.7), and therefore, the acceptance of bribe by the second accused, assuming is proved, would not, by itself, be sufficient to convict the first accused for the offence charged. 10.2. On behalf of the second accused it was contended that the second accused never demanded any gratification from P.Ws.1 and 3, at any point of time, either on 22.12.1989 or 26.12.1989, even as per the evidence of P.Ws.1 and 3. On the other hand, as per the evidence of P.W.4, he had already forwarded the report of resurvey and subdivision of lands (Ex.P12) to the first accused as early as on 22.12.1989 and therefore, there is no necessity for him either to demand or accept any money on 26.12.1989 during the trap. Hence, assuming the evidence of P.Ws.1, 2, 3 and 10 are accepted, it would not be safe to convict the second accused merely for having accepted bribe as instructed by the first accused. 11. The learned Special Judge-cum-I Additional District Judge and Chief Judicial Magistrate, Salem, by judgment dated 12.6.1996 in S.C.C.No.118 of 1990 accepted the defence of the second accused and acquitted him; but rejected the defence of the first accused, and convicted the first accused for the offence punishable under Sections 7 and 13 (1)(d) r/w 13(2) of the Act and sentenced him with rigorous imprisonment for one year with a fine of Rs.500/-, in default to undergo rigorous imprisonment for one month, for the offence punishable under Section 7 of the Act, and with rigorous imprisonment for one year with a fine of Rs.500/-, in default to undergo rigorous imprisonment for one month, for the offence punishable under Section 13(2) r/w 13(1)(d) of the Act. Hence, the above appeals. 12. Mr. Ashok Kumar, learned counsel appearing for the first