BAIL SLIP The following Petitioners/Accused T.M.Shanmughavelu- Ist Accused, N.Dhandapani - 2nd Accused re released on bail vide order dated 16.6.2004 and 21.6.2004 made in Crl.MP.No.6619/2004 in Crl.A.741/04, and Crl.MP.No.6780/04 in Crl A 772/04 respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.03.2011 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA Criminal Appeal Nos.741 & 772 of 2004 T.M.Shanmughavelu ... Appellant in Crl.A.No.741 of 2004/A1 N.Dhandapani ... Appellant in Crl.A.No.772 of 2004/A2 Vs State rep. by Inspector of Police, Vigilance and Anti-Corruption, Coimbatore. Crime No.7/01/AC/CB ... Respondent/Complainant Prayer :- Criminal Appeals have been filed under Section 374 Cr.P.C. praying to set aside the conviction and sentence imposed on the appellants by the judgment dated 26.05.2004 made in Special C.C.No.13 of 2002 on the file of the learned Chief Judicial Magistrate-cum- Special Judge for Special Court at Coimbatore and allow the appeals and acquit the appellants and order refund of the fine amount to the appellants. For Appellant in Crl.A. : Mr.S.Shunmugavelayutham, No.741 of 2004 Senior Counsel for Mr.T.Vijayaraghavan For Appellant in Crl.A. : Mr.V.Gopinath, Senior Counsel No.772 of 2004 for Mr.D.Shivakumaran For Respondent in both : Mr.J.C.Durairaj, the appeals Govt. Advocate (Crl. Side) https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T The appellants, who have been arrayed as A1 and A2, have come forward with these appeals in Crl.A.Nos.741 and 772 of 2004 challenging their conviction and sentence imposed by the learned trial Judge, namely, Chief Judicial Magistrate-cum-Special Judge, Coimbatore, by the judgment dated 26.05.2004 made in Special C.C.No.13 of 2002 convicting them for the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentencing each of them to undergo one year rigorous imprisonment with a fine of Rs.1,000/-, in default, to undergo six months simple imprisonment and convicting them under Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, and sentencing each of them to undergo one year rigorous imprisonment with a fine of Rs.1,000/-, in default, to undergo six months simple imprisonment and the sentences are ordered to run concurrently. 2. The prosecution version in a nutshell is hereunder : (i) A1 was working as Assistant Revenue Officer and A2 was working as Tax Collector at the Corporation of Coimbatore, South Zone. P.W.2 was working as a Special Assistant in the State Bank of India at Coimbatore. He was having his residence at Kovai Sungam, Ramanathapuram, bearing Door No.19, Nataraj Nagar, Coimbatore. He has obtained permission from the Corporation of Coimbatore, for constructing additional two rooms at the upstairs of his house. On 24.11.1999, the said permission was given to P.W.2 for additional construction. After completion of the construction work, he has submitted his application to Coimbatore Corporation South Zone, for assessment of tax. On 11.11.2001 at 9.00 a.m., A2 called P.W.2 to come and meet him at the south zone office. Two days thereafter, P.W.2 went to the said office and he was taken by A2 to A1 at 4.30 p.m. P.W.2 asked A1 about the assessment of tax. A1 demanded Rs.6,000/- and stated that otherwise, he has to put commercial tax. P.W.2 stated that he has constructed only two rooms. But A1 insisted for the payment of R.6,000/-. P.W.2 again met A1 on 28.11.2001 at 4.30 p.m. A2 was present at that time. Again he has asked about tax. A1, after discussing with A2, demanded P.W.2 to pay an amount of Rs.4,000/- and instructed him to bring the said amount on the next day at 4.00 pm. (ii) As P.W.2 is not inclined to give the bribe amount, he went to the vigilance office on the next day at 11.30 a.m. and gave the report, Ex.P.2 to P.W.11, Inspector of Police, Vigilance and Anti- Corruption. Ex.P.3 is the signature of P.W.2 in Ex.P.2, report. (iii) P.W.11, on receipt of the report, Ex.P.2, registered the case in Crime No.7/01/AC/CB under section 7 of the Prevention of Corruption Act, 1988. Ex.P.22 is the First Information Report. He sent the First Information Report to the Chief Judicial Magistrate Court. P.W.11 decided to conduct a trap which was accepted by P.W.2. P.W.2 has already taken Rs.4,000/-, consisting eight 500 rupee notes marked as M.O.1 series, with him. P.W.11 summoned two witnesses, https://hcservices.ecourts.gov.in/hcservices/ P.W.3 and another and asked them to peruse the complaint preferred by P.W.2 and demonstrated the phenolphthalein test to them. P.W.11 instructed P.W.2 to give the amount only in the event of A1 demanding the bribe amount. P.W.2 was asked to give the pre-arranged signal by cleaning his spectacles and by starting his scooter. P.W.3 was instructed to accompany with P.W.2 to watch the transaction taking place between P.W.2 and the accused. The said proceedings have been recorded under Ex.P.4, mahazar. (iv) At about 3.45 p.m., P.Ws.2 and 3 left in a motorbike of P.W.2 and the raiding party under P.W.11 followed them in a jeep for the office of A1. At about 4.00 p.m., P.Ws.2 and 3 entered into the office of A1. The raiding party were awaiting outside the office of A1 near P-4 police station. At about 4.15 p.m, P.Ws.2 and 3 went inside the office of A1. A1 was not present. P.Ws.2 and 3 were awaiting in front of the office of A1 for sometime. After sometime, A1 came there. On seeing P.W.2, he asked him to come inside his room. P.W.2 enquired A1 about the tax. A1 asked P.W.2 whether he has brought the money he has asked for. P.W.2 has taken out the currency notes and attempted to give the said amount to A1. At that time, A2 was present. A1 instructed P.W.2 to give the amount to A2. Thereafter, P.W.2 has given the currency notes to A2 and A2 received the amount and put it into his right side pant pocket. A1 informed him that the work will be done. Immediately P.W.2 came out of the office of A1 along with P.W.3 and gave the pre-arranged signal to P.W.11. (v) P.W.11, on receipt of the pre-arranged signal at 4.15 p.m., rushed to the scene and enquired P.W.2. P.W.2 informed P.W.11 that they met A1 and A1 instructed him to give the amount to A2 and he has given the amount only to A2 and A2, thereafter, left to the upstairs. P.W.3 also narrated the sequence of events to P.W.11. P.W.11 rushed to the office of A1. P.W.2 identified A1 to P.W.11. A2 was not present in the said office of A1. P.W.11 asked the constables to remain in the office of A1 and left for the first floor and A2 was not found there. P.W.11 found A2 at the room of Tax Collectors. P.W.2 was asked to remain outside the said room. P.W.11 introduced himself and others to A2. At that time, A2 was perturbed. P.W.11 asked A2 to remain in the seat and conducted phenolphthalein test which proved positive. He has put the solution in two bottles and sealed the same. A2 informed P.W.11 that he has received the amount as per the instructions of A1. He has arrested A2 and questioned about the amount from A2. A2 has taken the currency notes from his right side pant pocket containing eight 500 rupee notes totalling to Rs.4,000/-. The numbers of the said currency notes have been compared with the numbers mentioned in the mahazar, Ex.P.4. A1 was summoned to the upstairs at 4.30 p.m. and P.W.11 arrested A1. The pant pocket of A2 was also subjected to phenolphthalein test which also proved positive. The said solution has been taken into two bottles and sealed. P.W.11 enquired A1 about the application submitted by P.W.2 and A1 stated that only A2 knows about the same. A2, in turn, informed that only the Revenue Inspector, P.W.5, knows about the same. P.W.11 enquired P.W.5 and seized the file, Ex.P.5. The trap proceedings were recorded under the mahazar, Ex.P.7. https://hcservices.ecourts.gov.in/hcservices/ (vi) P.W.11 examined the other witnesses working in the Corporation of Coimbatore and seized Ex.P.9/monthly list, Ex.P.10/ Attendance Register and Exs.P.11 to 15, 17 and 18. He has prepared the rough sketch, Ex.P.23. P.W.11 also searched the house of A1 and A2, after the requisition submitted to the Chief Judicial Magistrate. The search notice is Ex.P.24. During the search, an amount of Rs.22,000/- and 55 documents have been seized from the house of A1. Ex.P.16 is the search list. P.W.11 deputed one Navaneethakrishnan, Inspector, to search the house of A2 and the said Inspector seized Rs.59,011/- from the house of A2 and one document and passbook. Ex.P.25 is the search list. Thereafter, he produced A1 and A2 before the Chief Judicial Magistrate on 30.11.2001 and thereafter, they have been remanded to judicial custody. He has sent the material objects to the Court. (vii) P.W.12 took up further investigation. He has examined the other official witnesses attached to the Corporation of Coimbatore. He has sent requisition to the Chief Judicial Magistrate Court for sending the material objects for chemical examination. He has also examined A1 and A2. After completion of investigation, he has sought for sanction on 29.05.2002. (viii) P.W.13 took up further investigation. He has received the sanction order, Ex.P.1 dated 13.12.2002 from P.W.1. Thereafter, he has filed the charge sheet on 26.12.2002 against the accused for the offence under Sections 7 and 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. 3. The prosecution, in order to substantiate its case, examined P.Ws.1 to 13, filed Exs.P.1 to P.25 and marked M.Os.1 to 7. 4. When the accused 1 and 2 were questioned under Section 313 of the Code of Criminal Procedure in respect of incriminating circumstances appearing against them through the evidence adduced by the prosecution, both of them denied each and every circumstance put against them as false and contrary to the facts and they have not chosen to examine any witness or to mark any documents on their side. 5. Mr.S.Shanmugavelayutham, learned Senior Counsel for the appellant/A1, vehemently contended that the prosecution has failed to prove its case by adducing clear and consistent evidence against A1 and put forward the following contentions : (1) The prosecution failed to prove the alleged demand of illegal gratification said to have been made by A1 by adducing any acceptable evidence ; (2) The case of the prosecution is to the effect that A1 demanded illegal gratification for assessing and imposing tax to the additional construction put up by P.W.2. But the inspection of the premises of P.W.2 and assessment and imposition of tax were already over as early as on 05.11.2001 and as such, the alleged demand said https://hcservices.ecourts.gov.in/hcservices/ to have been made by A1 on 14.11.2001 and 28.11.2001 prior to the trap is unbelievable and unacceptable ; (3) The alleged demand of illegal bribe said to have been made by A1 prior to the trap is spoken to only by P.W.2 and there is no corroboration for his version and his version is proved to be false in view of his own admission to the effect that the additional construction of his building was already assessed ; (4) The alleged demand of illegal bribe said to have been made by A1 even on the date of trap is also unbelievable and unacceptable as P.W.4 has not spoken about the presence of P.W.3 at the time of trap and as such, the uncorroborated version of P.W.2 cannot be accepted ; (5) The definite version to the effect that the assessment and tax in respect of the additional construction put up by P.W.2 was over as early as on 05.11.2001 is probabilised and substantiated by the evidence of P.Ws.5, 7 and 9 as all of them categorically stated that the work of A1 was completed as early as on 05.11.2001 and A1 has nothing to do with the assessment and imposition of tax in respect of the additional construction of P.W.2. (6) The version of P.W.2 regarding the alleged demand of illegal gratification is unbelievable and unacceptable for the simple reason that if really A1 has made any demand of illegal gratification, nothing prevented him to receive the said amount and even as per the admitted version of the prosecution, the amount was not recovered from A2 and as such, the entire prosecution case is liable to be rejected. (7) P.W.2 is well-aware about the assessment and imposition of tax and penalty even prior to the alleged demand of illegal gratification said to have been made by A1 and he has foisted a false case against the accused as he was angry with A1 as per the suggestion put by the defence. 6.1. Mr.V.Gopinath, learned Senior Counsel for the appellant/A2 while assailing the impugned judgment of conviction put forward the following contentions : (1) P.W.2 has categorically admitted in his cross-examination that he has not given any report against A2 and A2 never demanded bribe amount at any point of time ; (2) Though P.W.2 has stated in the chief-examination that they met A1 on 28.11.2001 and asked for the tax and A1, after talking with A2, demanded Rs.4,000/-, he has categorically admitted in his cross- examination that whenever he met A1, the discussion took place between them is not known to anyone. Therefore, it is very clear that A2 has not even aware about the alleged demand of illegal gratification said to have been made by A1 and as such, there is absolutely no allegation that A2 made any demand of illegal gratification prior to the trap ; https://hcservices.ecourts.gov.in/hcservices/ (3) Even on the date of trap, i.e., on 29.11.2001, it is not the version of P.W.2 or P.W.3 that A2 made any demand of illegal gratification from P.W.2. (4) In the absence of proof of demand of illegal gratification against A2, the presumption contemplated under Section 20 of the Prevention of Corruption Act, 1988 cannot be raised ; (5) Even assuming that presumption can be raised under Section 20 of the Prevention of Corruption Act, 1988, A2 has given reasonable and probable explanation to the effect that the money was planted on his table and such suggestion was put to P.Ws.2, 3 and 11. A2 has also given the said explanation during questioning under Section 313 of the Code of Criminal Procedure. (6) Mere recovery of alleged tainted currency notes from A2 itself is not sufficient in the absence of the proof of demand of bribe and in the absence of proof of A2 voluntarily accepting the money knowing it to be bribe ; (7) The trap proceedings is also surrounded by suspicious circumstances and doubts ; (8) As per the version of P.Ws.3 and 4, the mahazar prepared for the trap proceedings and the recovery of the currency notes were signed by the Bill Collectors, but the mahazar, Ex.P.7 does not contain the signature of anyone of the Bill Collectors and as such, the manner under which, the currency notes were said to have been recovered from A2 is highly doubtful. (9) P.W.4 has categorically stated that he was asked to be present and watch the proceedings and P.W.4 has not mentioned the presence of P.W.3 at the time of trap. If really P.W.3 has accompanied with P.W.2 at the time of trap and he was present at that time, there is no need for P.W.11, Inspector of Police, to request P.W.4 to present and watch the trap proceedings. (10) As per the admitted version of P.Ws.2 and 3, A1 alone was present when they entered inside the office of A1 and there is no explanation as to why A2 subsequently came and stood behind the back of P.Ws.2 and 3. It is the prosecution's version that A2's office was in the upstairs. P.W.3 has stated that after receiving the amount A2 left to the upstairs. P.W.2 has not stated that after the receipt of the amount A2 left for upstairs and as such, there is no consistent version in respect of the manner of the alleged receipt of the amount by A2. (11) Therefore, the prosecution has not only failed to prove the alleged demand of illegal gratification said to have been made by A1 and A2, but also the entire trap proceedings suffers from infirmities and inconsistencies. https://hcservices.ecourts.gov.in/hcservices/ 6.2. The learned Senior Counsel would place reliance on the decisions of the Hon'ble Apex Court in the following decisions : (1)C.M.Girish Babu Vs. CBI reported in 2009 (2) SCC (Cri.) 1 ; and (2)State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede reported in 2010 (2) SCC (Cri.) 385. 7. Per contra, Mr.J.C.Durairaj, learned Government Advocate (Crl. Side) would contend that the prosecution has proved its case by adducing clear and consistent evidence through P.Ws.2, 3 and 11. It is contended that the prosecution has proved the demand as well as acceptance of the illegal gratification. It is pointed out that P.W.2 has stated that he was called by A2 to the south zone office of Corporation of Coimbatore on 11.11.2001 and two days thereafter, he went to the said office and only A2 took him to A1 and at that time, A1 demanded bribe amount of Rs.6,000/- in respect of assessment of tax of the additional construction put up by P.W.2. It is further contended that even at the time of the alleged second demand said to have been made by A1 on 28.11.2001, A2 was also present and A1 only after discussing with A2 made the demand of Rs.4,000/-. Therefore, A2 was having clear knowledge about the demand of illegal gratification made by A1. The learned Government Advocate (Crl Side) would further submit that even on the date of trap, i.e., on 29.11.2001, A1 demanded the bribe amount and the said version of P.W.2 is corroborated by P.W.3. The evidence of P.W.11, the Inspector, who has conducted trap, clearly shows that the tainted amount was recovered from A2 after the phenolphthalein test proved positive. The learned Government Advocate (Crl. Side) would further submit that though the defence pointed out certain inconsistencies in the prosecution version, the same would not affect the main case of the prosecution. 8. This Court carefully considered the rival contentions put forward by either side and thoroughly scanned through the entire evidence available on record and perused the impugned judgment of conviction. 9. At the outset, it is to be stated that the first and foremost burden of the prosecution in a corruption case is to prove the alleged demand of illegal gratification said to have been made by the accused for attracting the ingredients of the offence under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. It is well-settled by a catena of decisions of the Hon'ble Apex Court that mere receipt of the tainted amount is not sufficient in the absence of proof of demand of illegal gratification. As far as the case on hand is concerned, the prosecution heavily placed reliance on the evidence of P.W.2, who is the author of the report and alleged to have given bribe amount, P.W.3, trap witness, and P.W.11, Inspector, who has conducted the trap. https://hcservices.ecourts.gov.in/hcservices/ 10.0. Let me now consider whether the prosecution has discharged its burden of proving the demand of illegal gratification said to have been made by A1 and A2. 10.1. In respect of the demand of bribe amount said to have been made by A1 and A2 prior to the trap, we have been left with the sole evidence of P.W.2. P.W.2 claimed that prior to the trap, the bribe amount was demanded by A1 on 14.11.2001 and on 28.11.2001. It is the version of P.W.2 that he was called by A2 on 11.11.2001 to the south zone office of Corporation of Coimbatore and accordingly, two days later, he went to the said office and met A2 and A2 took him to A1 and at that time, A1 demanded Rs.6,000/- for assessment and imposition of tax in respect of additional construction put up in his house. It is the version of P.W.2 that again he met A1 on 28.11.2001 at 4.30 p.m. and at that time A2 was also present and A1, after discussing with A2, demanded the bribe amount of Rs.4,000/-. This version of P.W.2 is falsified by his own admission in the cross- examination to the effect that whenever he met A1, the discussions took place between them were not known to anyone. Therefore, it is crystal clear that A2 could not have been present at any point of time when A1 demanded the alleged bribe amount. In view of the same, this Court is of the considered view that it is most unsafe to place reliance on the evidence of P.W.2 in respect of the demand of bribe said to have been made by A1 prior to the trap as his version is not only uncorroborated, but also unacceptable and unreliable. 10.2. Yet another important factor to be borne in mind by this Court in respect of the alleged demand of bribe amount said to have been made by A1 prior to the trap is that it is the specific version of P.W.2 that A1 demanded the bribe amount for making assessment and imposition of tax for the additional construction put up by him in his house. P.W.2 has categorically admitted in his cross-examination that he has put up additional construction in the upstairs of his house exceeding the extent permitted by the Corporation and the corporation has imposed a tax of Rs.532/- and also imposed a fine of Rs.50/- per unit. At this juncture, it is to be stated that P.W.2 is not an illiterate person and he is working in a bank and as such, he is well-aware about the process of assessment and imposition of tax in respect of the additional construction put up by him. P.W.2 admitted that a perusal of the register for imposition of tax at page 65 shows that A1 has already put up his signature on 05.11.2001 itself and thereafter, Assistant Commissioner passed an order on 07.11.2001. Such being the admitted position as per the version of P.W.2 in his cross-examination, the version of P.W.2 to the effect that A1 demanded the bribe amount for assessing and imposing the tax for the additional construction on 14.11.2001 and 28.11.2001 is highly improbable and unbelievable. This Court is also of the considered view that the possibility of P.W.2 having grudge against A1 for imposition of penalty cannot be ruled out. 10.3. It is pertinent to note that P.W.5/the Special Revenue Inspector has categorically stated in his chief examination that he https://hcservices.ecourts.gov.in/hcservices/ has inspected the house of P.W.2 on 05.11.2001 along with A2 and A1 and has taken the measurements. It is further stated that P.W.2 has put up additional construction over and above the permitted extent and accordingly, the penalty was imposed on him. P.W.5 further admitted in his cross-examination that he has completed the inspection of P.W.2's house on 05.11.2001 and obtained the signature of A1 on the same day and thereafter, obtained an order from the Assistant Commissioner on 07.11.2001. It is further admitted by P.W.5 that A1's duty in respect of the inspection, assessment and imposition of tax was over on 05.11.2001 itself. 10.4. P.W.7, the Assistant Commissioner, South Zone, Corporation of Coimbatore, has also admitted in his cross-examination that A1's duty in respect of assessment and imposition of tax in respect of P.W.2's additional construction in his house was over on 05.11.2001 itself. It is also admitted by P.W.7 that after passing the order on 07.11.2001, there is no role to be played by A1 and A2. 10.5. P.W.9, the Junior Assistant working in the south zone office of the Coimbatore Corporation, has also come forward with the same version to the effect that A1's work was over on 05.11.2001 and on 07.11.2001, the Assistant Commissioner has signed the file and as such, the work in respect of the application submitted by P.W.2 was over on 07.11.2001 itself. In view of the above said categorical version of P.Ws.5, 7 and 9, the alleged demand of bribe said to have been made by A1 on 14.11.2001 as well