IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.11.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.1624/2002 State by Inspector of Police Vigilance and Anti Corruption Coimbatore (Cr.No.1/99/AC/CB) Appellant Vs R.Mohandaoss Respondent Prayer:- This Criminal Appeal is filed against the judgement dated 24.4.2002 passed by the I Additional District Judge Cum Chief Judicial Magistrate, Coimbatore in Spl.CC.No.12/2000 acquitting the Respondent from the charges leveled against him. For Appellant : Mr.Hasan Mohammed Jinnah, APP For Respondent : Mr.V.Gopinath, SC for Mr.L.Mahendran ORDER This Criminal Appeal is filed against the judgement dated 24.4.2002 passed by the I Additional District Judge Cum Chief Judicial Magistrate, Coimbatore in SCC.No.12/2000 acquitting the Respondent from the charges levelled against him. 2. The Respondent/accused, who was working as Overseer at Madathukulam Panchayat Union, Coimbatore District was charged for the offences punishable under Sections 7, 13(2) read with 13 (1)(d) of the Prevention of Corruption Act (herein after referred to as the Act). 3. While the Respondent/accused was working as Overseer at Madathukulam Panchayat Union, Coimbatore District, he demanded Rs.3,000/- as an illegal gratification for preparing the bill from one Alagirisamy, who is a registered Contractor at Madathukulam Panchayat Union, for the completion of work of providing road at Kadathur Indira Nagar, Harijan Colony under special maintenance work in July 1998. When Alagirisamy explained his inability to spend such an amount, the Respondent had reduced his demand to 1,000/- and pursuant to the said demand, the accused accepted the said sum as an illegal gratification on https://hcservices.ecourts.gov.in/hcservices/ 05.1.1999 at his office in the Engineering Section. The Respondent pleaded not guilty and sought for trial. The prosecution examined Pws.1 to 12 and marked Exs.P1 to P37 in support of the charges. The Respondent denied the charges and stated that he was falsely implicated. 4. The crux of the prosecution case as revealed from the evidence adduced on the side of the prosecution is as follows:- PW.2 Alagirisamy was the registered contractor of Madathukulam Panchayat Union and as the registered contractor, he was awarded number of works during the relevant period of time. The Mathukulam Panchayat Union had got two Overseers and six Panchayats viz. namely, Vedapatti, Cholamadevi, Kadathur, Vedapatti Kadathur, Jothampatti, Myvadi and Pappankulam, which came within the jurisdiction of the Respondent as per Ex.P11 Government Order. In case any work of contract awarded in respect of the above said places for the estimation of below Rs.50,000/-, the Overseer is authorised to go and inspect the progress and completion of the work awarded to the contractor and then to estimate the same and to prepare the bill and forward it to the Engineer, who after verifying the records would sanction the amount. In so far as the estimation of work above Rs.50,000/- is concerned, the completion of work is to be verified by the Assistant Executive Engineer, who would prepare the bill and then obtain sanction. 5. As per the rules, the contract work will be awarded to the registered contractors only by calling for tenders. Ex.P4 is the tender dated 14.07.1998 calling for award of work for providing road at Kadathur Indira Nagar, Harijan Colony under special maintenance scheme and the said work was awarded to Pw.2 Alagirisamy, who had completed the said work in the month of November 1998 and after completing his work, he had approached the accused for verifying the same for the purpose of preparing the bill. On due visit to the work spot, the Respondent inspected the said site and asked PW.2 to apply some more mud on the road. After carrying out the said instruction, the contractor again approached the Respondent both at his Office and at his House and requested him to prepare the Bill, so as to enable him to get the payment for the work executed by him. But, the Respondent for some reason or the other delayed it and 10 days prior to 4.1.1999, PW.2 met him in his house at 7.30 a.m. and demanded a sum of Rs.3,000/- as illegal gratification for preparing the bill and when PW.2 refused to comply with his demand, the Respondent informed him that unless and until the money is paid, the bill will not be prepared. Again, PW.2 met the accused on 4.1.1999 on 7.30 a.m. in his house, but the Respondent reiterated his demand for Rs.3000/- and when PW.2 expressed his inability to pay such amount, he reduced the same to Rs.1000/- and asked PW.2 to come and meet him at 9.00 a.m. along with the money. https://hcservices.ecourts.gov.in/hcservices/ 6. As PW.2 was not inclined to pay the money, he went to the Office of the Vigilance and Anti Corruption, Coimbatore and met PW.9 Vivekananda, Former Inspector of Police, Vigilance and Anti Corruption, Coimbatore and gave a oral complaint which was reduced into writing as Ex.P2 and his signature was obtained. A case was registered under Ex.P22 First Information Report and then a trap was proposed to be held and PW.2 was asked to come on the next day along with the money. Accordingly, PW.2 reached the office of the Vigilance and Anti Corruption, Coimbatore and found PW.3 Kolaidaivelu and one Nagendran, who are employed in the Electricity Board and Agricultural Departments. 7. A trap mahazar was prepared after explaining the details of the trap and the phenolphthalein test being used in trap. PW.2 the complainant was said to have handed over 10 currency notes of Rs.100/- denomination before PW.9, who applied phenolphthalein powder on either side of the currency notes and PW.2 was instructed to keep in his pocket with further instructions to hand over it to the accused as and when demanded by him. PW.2 was asked to go to the office of the Appellant along PW.3 and then to pay the money as and when demanded by the Appellant and to introduce PW.3 as one of his friends. He was instructed that if the amount was received by the accused, to show the signal by taking out the note book from his underwear packet and show it of. Thereafter, PW.9 along with the complainant panch and the police team proceeded to Madathukualam Panchayat Union in a Van and Car and parked the vehicle near Vedapatti road junction and Pws.2 and 3 entered into the office of the accused at about 8.50 a.m. while the others were waiting outside. 8. PW.2 met the Respondent and asked him about the bill, who in turn asked for the money. According to the Prosecution, things had happened in the way in which it was planned. PW.2 had not only paid the money by handing over the currency notes on demand made by the accused, but also he came out of the room and made a signal as planned. On receipt of the signal, PW.9 entered into the office of the Respondent and introduced himself and the panch witnesses. The Respondent on seeing them got perturbed and he was asked to dip his right hands in the sodium carbonate solution, which became pink in colour and the same was repeated with his left hand and the solution also became pink in colour and they were duly seized under a mahazar for further action. Immediately, PW.9 arrested the accused and handed over a dhoti so as to change his pant and the pant was also subjected to the same phenolphthalein test and solution turned into pink colour, which was also seized under a mahazar. In the right hand side pant pocket, the Respondent was having Rs.150/- which claimed to be his own money and the same was returned to the Respondent. Thereafter, usual formalities https://hcservices.ecourts.gov.in/hcservices/ were complied with. When the Respondent was enquired by PW.9, he answered that the money was voluntarily given to him by PW.2 and the same was not given as a bribe. PW.9 seized Ex.P5 M.Book, Ex.P6 log book, Ex.P9 diary of the accused for the month of December 1998 and Ex.P23 File relating to the tender dated 20/22.10.98 under a cover of mahazar. Ex.P14 is the movement register. Ex.P25 is the attendance book and Ex.P23 is the Atthachi. Thereafter, a search was made in the house of the accused situated at Door No.1A, Nanjappapillai, Madathukulam between 12.30 p.m. and 1.00 p.m. in the presence of some witnesses and in the course of such search, Ex.P10 Forms of comparative statement, Ex.P27 M-Book, Ex.P28 file relating to the tender held on 15.7.1998 for Kadathur Indira Nagar road works were seized under Ex.P8 house search list in the presence of the same witnesses. Then the accused was brought to the office of the Vigilance and Anti Corruption and remanded to judicial custody along with the properties. 9. Thereafter, investigation was taken up by PW.10 Former Inspector of Police, Vigilance and Anti Corruption, Coimbatore and he recorded the statements of the witnesses on various dates and after subjecting the properties for chemical examination and after receiving the report, he laid charge sheet against the accused for the offences punishable under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act. 10. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses and he denied the same. 11. The trial court, after hearing the arguments advanced on either side and looking into the materials available, held that the charges levelled against the accused were not proved and acquitted him, which is challenged in this Criminal Appeal by the State represented by the Inspector of Police, Vigilance and Anti Corruption, Coimbatore. 12. Mr.Hasan Mohammed Jinnah, the learned Additional Public Prosecutor for the Appellant contended that the court below based its conclusion merely on presumption and surmises rather than the proved facts and failed to consider that the evidence let in by the Prosecution would hold the defence theory of flag day collection by the accused as only an after thought. Further, the Trial Court ought not to have accepted the explanation offered by the accused that a sum of Rs.1000/- was paid to him voluntarily for the purchase of flag day stamps and given the benefit of doubt to the accused and acquitted him of the charges. 13. Mr.V.Gopinath, the learned senior counsel for the Respondent would support the impugned judgement. https://hcservices.ecourts.gov.in/hcservices/ 14. The Trial Court found against the Prosecution on two aspects viz. (1) the existence of personal and prior misunderstanding and (2) when the very preparation of the bill was only for the entire execution of the work awarded to Pw.2 and when there was nothing on record to show that he has completed his work as on the date of alleged demand of illegal gratification which is clearly admitted by PW.4, the stage for preparing the bill did not arise at all and in the absence of any records to establish the actual completion of work for providing road in Kadathur Indira Nagar, Harijan Colony under special maintenance work by PW.2 and in the light of existence of personal and prior enmity between the accused and PW.2 in connection with the preparation of the bill for the lesser amount for the earlier works, it leaves room for doubt and does not displace the presence of innocence wholly and hence held that the charge against the accused cannot be held to have been proved. 15. Regarding the first aspect, the defence was that PW.2 used to carry out the contracted work for Madathukulam Panchayat Union as the agent of one of the employees of the same union by name Mohan and in the course of carrying out such work by him, he used to submit his estimation for higher amount, but as the accused sanctioned lesser amount for the said work, there was a wordy altercation between the two. Though PW.2 had denied the same, the said fact has been disclosed from other evidence. 16. PW.4, Nagaraj Divisional Engineer of Madathukulam has admitted in his evidence that one Mohan is working in the Panchayat and used to carry out the contracted work through PW.2 and in respect of those works, the accused prepared bills for lesser amount and with regard to it, there was wordy altercation between the accused and PW.2 and the former shouted at PW.2 to leave the office. 17. From the evidence adduced on the side of the Prosecution, it emerges that for providing road to Kadathur Indira Nagar Harijan colony under special maintenance scheme NO.1 to an extent of 400 sq.m which is less than Rs.50,000/-, the Overseer is authorised to inspect the completion of the work, to prepare the bill and forward the same for sanction. PW.2/complainant had requested the accused to verify the completion of the work on an earlier occasion and on verification, the accused had asked the complainant to supply some more mud on the road and according to PW.2, after carrying out the work as instructed by the accused, he again requested the accused for the preparation of bill which was being postponed by the accused and he demanded illegal gratification of Rs.1000/- for preparing the bill. So according to PW.2, the illegal gratification made by the accused was only for the work which https://hcservices.ecourts.gov.in/hcservices/ was fully completed by him. As rightly pointed out by the Trial Court, PW.4 the Divisional Engineer and PW.5 former Block Development Officer of the Panchayat Union have not stated that the work was fully completed by PW.2. The relevant portion from the testimony of PW.5 would reveal thus:- @nfhaKj;Jhh; kw;Wk; jpz;Lf;fy; gFjp bkhj;j 400 kP ntiy Koe;jjh vd;W ve;j hpg;nghh;l;Lk; tutpy;iy.@ PW.4 would state thus:- @mHfh;rhkpf;F xg;ge;jj;jpd; mog;gilapy; bfhLf;fg;gl;l gzp Koe;jjhf vd;dplk; ahUk; tutpy;iy/ vk; g[j;jfj;jpy; ntiy Koe;jjhf gjpt[ bra;ag;gltpy;iy gzp Koe;jjhf jfty; ,; yiybd;gjhy; gpy; nghl ntz;oa fl;lk; ,y;iybad;why; Mtz';fspd; mog;gilapy; gpy; nghlntz;oa fl;lk; tutpy;iy/" 18. While PW.2 was confronted with MO.9 photographs relating to the work done only in part, he admitted the same. The defence is that the work was not at all completed by PW.2 so as to reach the stage of preparation of the bill and therefore, there was no demand of any illegal gratification by the accused. 19. Indisputably, the sum of Rs.1000/- i.e. MO.4 Currency notes allegedly handed over to the accused by PW.2 as illegal gratification was seized from the accused at about 9.30 a.m. in the Engineering Section in the office of the accused and the phenolphthalein test was held with both the hands of the accused and in such circumstances, the learned Additional Public Prosecutor reiterated the same argument advanced before the court below that on the mere recovery of the currency notes, smeared with phenolphthalein powder, the court is bound to raise the legal presumption under Section 20(1) of the Act relying on the decision of the Honourable Supreme Court reported in the case of Madukar Bhaskar Rao Josh Vs. State of Maharashtra [2001- Crl.LJ-175]. 20. On the other hand, the learned senior counsel for the Respondent contended that unless the Prosecution proves that the money paid was by way of illegal gratification, the mere receipt of money by the accused or recovery of money from the accused would not be sufficient to invoke the presumption clause, as contemplated under Section 20(1) of the Act. 21. It is no doubt true that when the Prosecution establishes that the accused was in possession of the currency notes smeared with phenolphthalein, the presumption would arise under Section 201(1) of the Act and the burden shifts to the accused and duty is cast upon the accused to offer plausible explanation for the possession of the same. 22. In one of the earlier decisions of the Honourable Supreme Court rendered in the case of V.D.Jhingan Vs. State of UP https://hcservices.ecourts.gov.in/hcservices/ [1966-Crl.LJ-408], it is held that it is not necessary for the accused to establish his case by the test of proof beyond a reasonable doubt and the burden of proof lying upon the accused would be satisfied if he establishes his case by a preponderance of probability as is done by a party in civil proceedings. It is held thus:- "It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under S.4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the Prosecution which still has to discharge its original onus that never shifts, i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." 23. In the case of Sundara Krishnan Vs. State [1998-2- LW-Crl-718] this court has held thus:- "18. Like every other criminal case, a case of bribery is subject to the rule that the accused is presumed innocent and that the burden to discharge the aid innocence is paramountly on the Prosecution. However, strong the suspicion against the accused if every reasonable possibility of innocence has not been excluded, he is entitled to acquittal. Whenever circumstances arise, they must be proved and not by themselves presumed.".. " If therefore the evidence regarding the demand and acceptance of bribe leaves room for doubt and does not displace the presence of innocence wholly, the charge cannot be said to have been established." 24. In a recent decision of the Honourable Supreme Court in the case of State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede [2009-4-MLJ-Crl-335-SC], the Honourable Supreme Court laid the ratio decidendi as below:- "I. The demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Prevention of Corruption Act. For https://hcservices.ecourts.gov.in/hcservices/ arriving at the conclusion as to whether all the ingredients of an offence have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirely. For the said purpose, the presumptive evidence as is laid down in Section 20 of Prevention of Corruption Act must also be taken into consideration, but the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the Prosecution would differ. II. Before 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." 25. In this case, the consistent case of the accused was that he did not make any demand of any illegal gratification to PW.2 nor accepted any amount by way of bribe in his office. His categoric case is that a sum of Rs.1000/- was paid to him voluntarily for the purchase of flag day stamps on the eve of flag day celebration on the 6th December of every year. It is borne out by the evidence of PW.4 Nagaraj, PW.5 Nagaveni, PW.9 the then Inspector of Police, Vigilance and Anti Corruption, PW.11 Sundaram, PW.12 Kandasamy coupled with the testimony of Dw.1 Isaac that the accused was one of the persons who was entrusted with the flag day flags worth of Rs.1000/- and was directed to effect sale and to remit the money to the concerned office. 26. The court below has extracted the relevant portion of evidence of those witnesses to substantiate the said factum of evidence in its judgement and it will be only a repetition to refer to those evidence. 27. Ex.P37 is the circular issued by the Director of Ex-Servicemen Welfare in connection with the task of maintenance of accounts of flag day collections. Ex.D4 is the proceedings dated 29.12.1998 by which the flags were distributed among some of the officers and amongst whom the accused is one of the Officers and the number of flags entrusted to the accused is 65 and the value of the same is Rs.1000/-. Ex.D5 is the proceedings dated 30.8.2000 of the Commissioner of Panchayat Union, Madathukulam directing 4 persons to remit back the flag day collections. Ex.D6 is the proceedings of the Officers of the Panchayat Union dated November 2000 directing the amount to be deducted from the salary of the accused in four installments. All the above said documents would substantiate the explanation offered by the accused probabilising the version of the accused. https://hcservices.ecourts.gov.in/hcservices/ 28. The Trial Court has minutely evaluated the evidence in its comprehensive judgement and there is no compelling reasons for interfering with the finding of the Trial Court. 29. In the case of Ramesh Babulal Doshi Vs. State of Gujarat [1996-9-SCC-225], the Honourable Supreme Court court said thus:- "While sitting in a judgement over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the Trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely if the appellate court holds for reasons to be recorded that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions." 30. In the case of Bhagawan Singh Vs. State of MP [2002-4-SCC-85], the Trial Court acquitted the accused, but the High Court convicted them. Negativing the contention of the appellants that the High Court could not have disturbed the findings of fact of the Trial Court even if that view was not correct, the Honourable Supreme Court observed thus:- "7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but Judge-made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise https://hcservices.ecourts.gov.in/hcservices/ from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether