Bail Slip The appellant/ Accused Viz., A.S. Kannan was directed to be released on bail as per the order of this court dated 9.8.2004 and made in Crl.M.P.No.8787/2004 in Crl.A.992 of 2004 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.09.2011 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN Crl.A.No.992 of 2004 A.S.Kannan ... Appellant/ Accused Vs. State by: The Inspector of Police Vigilance and Anti Corruption Chennai City II Detachment Chennai-600 020 ... Respondent/ Complainant Prayer: Appeal is filed under Section 374 (2) of the Code of Criminal Procedure, against the Judgment dated 20.07.2004 and made in C.C.No.1 of 2002, on the file of the learned Special Judge, under the Prevention of Corruption Act (I Additional Sessions Judge), Chennai. For Appellant : Mr.P.Wilson, Senior Counsel for Mr.T.K.S.Gandhi For Respondent : Mr.A.N.Thambidurai Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T This memorandum of criminal appeal is directed against the Judgment dated 20.07.2004 and made in C.C.No.1 of 2002, on the file of the learned Special Judge, under the Prevention of Corruption Act (I Additional Sessions Judge), Chennai, convicting the appellant under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and sentencing to suffer two years of rigorous imprisonment and to pay a fine of Rs.3,000/-, in default to suffer a further period of three months of rigorous imprisonment for each offence. 2. The highest forum of the land, in the Judgment made in State of Madhya Pradesh vs. Ram Singh, 2000 Cr.L.J. 1401, has observed that: “The Prevention of Corruption Act was intended to make an effective provision for the prevention of bribe and corruption, which is rampant amongst the public servants. It is a social legislation defined to curb illegal activities of the public servants and is designed to be liberally construed so as to advance its object.” 3. As contemplated under Section 20(1) of the Prevention of Corruption Act, 1988 (Hereinafter it may be referred to as the 'Act'), wherein, any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. 4. Hence, it is thus made clear that it is imperative on the part of the prosecuting agency, who launches a criminal proceedings against a public servant with an allegation of demand and acceptance of gratification other than the legal remuneration, to prove those allegations beyond the shade of doubt. If it is proved that he has accepted or obtained or agreed to accept or attempted to obtain that https://hcservices.ecourts.gov.in/hcservices/ gratification or valuable thing as the case may be or motive or reward such as mentioned in section 7 of the Act, it shall be presumed that he has accepted or received the gratification. But, this presumption is a rebuttable one and the person against whom the case of bribe is launched can defend himself to prove the contrary by way of preponderance of probability. It is settled proposition of law that the rigour of proof, which is rested on the prosecution, is not strictly attached on the accused person. On the other hand, if he is able to demonstrate the preponderance of probability to the satisfaction of this Court, it would be sufficient to presume his innocence. 5. It may quite be relevant to note here that Section 20 of the Act provides for raising of a presumption, only if a demand is proved. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution. This dictum is engraved by the Apex Court in V.Venkata Subbarao vs. State, 2007 Cr.L.J.754 (S.C.). 6. Under Section 17 of the Act, certain police officers are authorised to investigate into the cases under the Act. Section 17 of the Act enacts as follows: 17. Persons authorised to investigate.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 .), no police officer below the rank,- (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub- section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974 .), of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent, rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by https://hcservices.ecourts.gov.in/hcservices/ general or special order, he may also investigate any such offence without the order of a metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant: Provided further that an offence referred to in clause (e) of sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. 7. On coming to the instant case on hand, the occurrence is said to have been taken place at the office of the Assistant Engineer, Shasthri Nagar Section, Adyar, Chennai-600 020. No doubt, it is clear that the occurrence was taken place at Chennai, which is a metropolitan area. Hence, as defined under Clause (b) to Section 17 of the Act, the Police Officer, who is competent to take up the case is the Assistant Commissioner of Police. Even, if a Police Officer not below the rank of Inspector of Police happens to take up the case for investigation, he shall be specifically authorised by the State Government in this behalf by a general or special order to investigate the case without the order of a Metropolitan Magistrate or a Magistrate of the first class and he can also make arrest therefor without a warrant. 8. In sofar as this case is concerned, P.W.10, who took up the investigation of the case, is an Inspector of Police. He has not been authorised either by a general or special order to investigate the case. He has also not chosen to produce any such order to substantiate his competency to investigate the case. 9. P.W.9, who had registered the case based on the complaint of P.W.2 and laid the trap proceedings, was also functioning as an Inspector of Police at the relevant period. He has also stated that he had examined P.W.2 and recorded his statement. It is significant to note here that he was also not authorised in this behalf specifically. 10. The facts, which led to the filing of this criminal appeal: 11. The appellant Mr.A.S.Kannan was working as the Inspector of Assessment in the office of the Assistant Engineer, Shasthri Nagar Section, Adyar, Chennai-600 020 and as such he was a public servant. P.W.2 Mr.K.S.Soundararajan was working as the General Manager at M/s.Medicare Disposable Technologies situated at Thiruvanmiur. https://hcservices.ecourts.gov.in/hcservices/ P.W.4 Mrs.Jayasri Venkatesan is the Proprietrix of that Company. She is residing at No.19/3C, Coral Samudra Apartments, Valmigi Nagar, Second Seaward Road, Thiruvanmiur, Chennai-600 041. Her residential premises has been provided with the electricity service connection bearing No.202-45-1244. This service connection comes under the jurisdiction of the Assistant Electrical Engineer, Tamil Nadu Electricity Board, Shasthri Nagar Section, which is functioning at the Tamil Nadu Housing Board Complex. 12. That on 22.06.2000, the electricity tariff of the residential premises of P.W.4 Mrs.Jayasri Venkatesan was assessed at Rs.6,275/-. Hence, P.W.4 had issued a cheque for the value of Rs.6,275/- dated 04.07.2000 and handed it over to P.W.2 Mr.K.S.Soundararajan. That on 10.07.2000 at about 12.00 noon, P.W.2 had been to the above said Tamil Nadu Electricity Board Office along with the cheque for a sum of Rs.6,275/- and tendered the same along with the electricity charges card to P.W.5 Mrs.P.Manimegalai, who was sitting in the counter, where he used to pay the electricity charges. 13. P.W.5 Mrs.P.Manimegalai, Assessor, who was in-charge of the counter had refused to receive the electricity charges as the electricity charges, which was due for the month of April, 2000 was not paid till then and hence she had directed P.W.2 to go to the last counter to pay the previous bill and thereby she had returned the electricity charges card along with the cheque to him. P.W.5 had also told him that the person to be present at the last counter is not available today and hence she instructed him to come and pay the electricity charges on the next day i.e. 11.07.2000. 14. That on 11.07.2000, at about 11.30 a.m. again P.W.2 had been to the said office and tendered the cheque for a sum of Rs.6,275/- along with the electricity charges card to the appellant Mr.A.S.Kannan, who was found seated in the last counter. On seeing the electricity charges card, the appellant Mr.A.S.Kannan had informed P.W.2 that the electricity consumption charges of Rs.4,079/- for the month of April, 2000 along with the penalty of Rs.90/- and reconnection charge of Rs.124/-, totally a sum of Rs.4,293/- in cash should be paid. Apart from this, he had also demanded a sum of Rs.100/- for him separately. 15. When questioned, the appellant had replied that had he thought it fit, he could have imposed penalty more than Rs.500/- and could have also disconnected the service connection. But, he did not do so and hence he had demanded a sum of Rs.100/- for him. https://hcservices.ecourts.gov.in/hcservices/ 16. On hearing this, P.W.2 Mr.K.S.Soundararajan had also replied him that since he had not brought money, he would bring it tomorrow or otherwise he would send it through some other person, who might be sent from their office. When P.W.2 had asked his name, the appellant had disclosed his name as 'A.S.Kannan' and he had also displayed his identity card. 17. After returning back to his office, he had informed the incident to his owner viz.P.W.4 Mrs.Jayasri Venkatesan in the afternoon and she had instructed him to prefer a complaint to the Vigilance and Anti-Corruption Department. Accordingly, on 12.07.2000 at about 03.00 p.m. P.W.2 had been to the Vigilance and Anti-Corruption Office at Adyar and informed about the incident to one Mr.Sethuraman, Deputy Superintendent of Police. He had directed P.W.2 to present a written complaint. Hence, P.W.2 had lodged a written complaint under Ex.P3 before him and he inturn had called P.W.9 Mr.Elango, Assistant Commissioner of Police and instructed him to register a case and to take further action. 18. Based on the complaint under Ex.P3, P.W.9 Mr.Elango, Inspector of Police had registered a case in Crime No.6/AC/CC.2/2000 under Section 7 of the Prevention of Corruption Act, 1988. The printed first information report was marked as Ex.P4. Both Ex.P3 complaint and Ex.P4 printed first information report were sent to the Court. Then P.W.9 had examined P.W.2 and recorded his statement. Since P.W.2 had not brought the bribe amount, he was directed him to come on the next day i.e. on 13.07.2000 with money. Then, P.W.9 Mr.Elango had also conducted a discreet inquiry about the conduct of the appellant Mr.A.S.Kannan and thereafter he had sent a letter to the Rural Development Department as well as to the Tourism Department through the Deputy Superintendent of Police to send two government witnesses, on the next day for trap proceedings. 19. On the next day i.e. on 13.07.2000, at about 09.00 a.m. one Mr.Daniel Thomas, Superintendent from Tourism Department and P.W.3 Mr.Thiruvarangam, Superintendent from Rural Development Department had reported before P.W.9 and they were made to read the contents of Ex.P4 first information report. At about 10.45 a.m. P.W.2 came to the Office of the Vigilance and Anti-Corruption along with the cheque for a sum of Rs.6,275/- for the payment of electricity charges and a sum of Rs.4,300/- in cash and another sum of Rs.100/- (with the denomination of one fifty rupee currency note, one twenty rupee currency note and three ten rupee currency notes). Besides this, he had also brought the electricity charge card. He was https://hcservices.ecourts.gov.in/hcservices/ introduced to the witnesses, who were present there. P.W.2 had also handed over the amount of Rs.100/- with the denomination of one fifty rupee currency note, one twenty rupee currency note and three ten rupee currency notes to P.W.9 Mr.Elango. Then P.W.9 had asked the witness Mr.Daniel Thomas to count the currency notes. He was also directed to read the numbers of the currency notes and note it separately in a paper. Thereafter, P.W.9 had demonstrated the Sodium Carbonate and Phenolphthalein Test, after smearing the Phenolphthalein powder on the currency notes meant for bribe and explained it's intrinsic value to P.W.2, P.W.3 and other witness viz. Mr.Daniel Thomas etc., 20. P.W.2 Mr.K.S.Soundararajan was also asked to place the tainted currency notes in his pocket and he was instructed to tender it to the appellant Mr.A.S.Kannan only on his demand. 21. P.W.3 Mr.Thiruvarangam was also instructed to associate with P.W.2 Mr.K.S.Soundararajan and keep keen watch on the happenings. P.W.2 was also instructed by P.W.9 Mr.Elango, Trap Laying Officer to give signal by changing his wrist watch from his left hand to right hand. Thereafter, P.W.9 had prepared an entrustment mahazar under Ex.P5 and all the witnesses including P.W.9 had signed in it. Thereafter, P.W.9 and other members of trap team had reached the Office of the appellant at 12.20 p.m. wherein P.W.9 and the witness Mr.Daniel Thomas were taking position outside the office. As instructed by P.W.9, P.W.2 and P.W.3 had been to the Office of the appellant. 22. In the office of the appellant, there were three counters. Mr.A.S.Kannan was found sitting in the last counter. P.W.2 had tendered the electricity charge of Rs.4,300/- in cash for the month of April 2000 to the appellant. The appellant had also prepared a receipt for having received the amount and kept it along with him. Then, the appellant had asked P.W.2 to come inside the counter. After gaining entry into the counter, the appellant had asked the cheque for Rs.6,275/- towards the payment of electricity charge for the month of June, 2000. 23. P.W.2 had also handed over the same to the appellant. After receiving the cheque, the appellant had noted the consumer number over the cheque and passed it on to the next counter. After receiving the cheque, the person, who was sitting in the next counter, had passed a receipt to that effect and returned to the appellant. After keeping the two receipts, the appellant had demanded the bribe amount by showing signal by his hand. When https://hcservices.ecourts.gov.in/hcservices/ questioned, the appellant had also shown the same signal by his hand and reiterated his earlier demand made on the other day. Immediately, P.W.2 had tendered the tainted currency notes to the appellant. 24. The tainted currency notes viz. one fifty rupee currency note, one twenty rupee note and three ten rupee currency notes, totaling Rs.100/-, were marked as M.Os.1 to 3. 25. After receiving the amount, the appellant had counted the same and placed it in his left side table drawer. Then, he had returned the electricity charges card along with the receipts to P.W.2. Thereafter, P.W.2 came out from the office of the appellant and shown the pre-arranged signal to P.W.9. 26. On noticing the signal, P.W.9 Mr.Elango and other members of trap team had rushed inside the office of the appellant. P.W.2 had also identified the appellant and informed P.W.9 that he had received the amount and kept it inside the table drawer and thereafter P.W.9 had informed the concerned officer of the Tamil Nadu Electricity Board about the receipt of the bribe amount by the appellant and asked him to inform his higher officials. After receiving the electricity charge card from P.W.2, P.W.9 had instructed him to keep outside. 27. P.W.9 had also introduced himself to the appellant. Thereafter, Sodium Carbonate solution was prepared in two glass tumblers and the appellant was instructed to dip his both right and left hand fingers into the solution. When he did so, the solution in both the glass tumblers had changed into pink colour. They were collected into two separate glass bottles, sealed, labeled and attested by the official witnesses. 28. When questioned about the bribe amount, the appellant had produced the tainted currencies of Rs.100/- from the right side drawer of his table. The numbers of the tainted currency notes were compared with the numbers noted in the entrustment mahazar. They were found tallied with each other. Subsequently, P.W.9 had seized the petty cash register, which was maintained by the appellant and when compared an amount of Rs.12,180/-, which was collected by the appellant, was found tallied. The register was marked as Ex.P16. The amount of Rs.4,300/- which was collected from P.W.2 was not given entry in the said register. Then, P.W.9 had entrusted the amount of Rs.12,180/- along with Rs.4,300/- with P.W.7 Mr.Ponnurangam, who was the Revenue Supervisor of the said office. https://hcservices.ecourts.gov.in/hcservices/ 29. In the meantime, at about 12.45 p.m. one Junior Engineer had also arrived at the place of trap. Thereafter, P.W.9 had seized Ex.P8 green colour electricity charge card bearing connection No.202-45-1244 and Ex.P10 disconnection and re-connection register containing page Nos.1 to 34 for the purpose of investigation. He had also seized Ex.P11 disconnection list 4 of 2000 containing page Nos.1 to 46 and Ex.P12 job book register containing page Nos.1 to 492 and apart from this a sum of Rs.850/- from the possession of the appellant. Since the appellant had claimed as that of his own money, it was returned to him. The petty cash register bearing serial Nos.02875 and 02876 were handed over to the Assistant Engineer for office proceedings. The Sodium Carbonate and Phenolphthalein solution bottles were marked as M.O.4 and M.O.5 respectively. 30. Subsequently, P.W.9 had prepared a mahazar with regard to the trap proceedings under Ex.P13. He had also drawn a rough sketch under Ex.P17. At about 02.45 p.m. he had arrested the appellant Mr.A.S.Kannan after informing him about the grounds of arrest. During the search of his residential premises, no incriminating articles were recovered. Then, the appellant was brought to the office of the Vigilance and Anti-Corruption, examined and his statement was also recorded. Thereafter, P.W.9 had sent him to the Court for being remanded judicial custody. 31. P.W.9 Mr.Elango had also given a requisition to the learned Special Judge, requesting to send the material objects for chemical examination. P.W.8 Mrs.Kasthuri Bai, Scientific Assistant Grade-I had examined M.O.4 and M.O.5 and during the course of her examination both the phenolphthalein and sodium carbonate were detected in the above said two items viz.M.O.4 and M.O.5. 32. As per the order of the Superintendent of Police, the case records were entrusted with P.W.10 for further investigation. 33. P.W.10 had taken up the case for further investigation and examined the witnesses and recorded their respective statements. He had also obtained the order of sanction under Ex.P1 from P.W.1 to launch prosecution against the appellant and after the completion of his investigation, he had laid the final report against the appellant on 21.01.2002 under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. https://hcservices.ecourts.gov.in/hcservices/ 34. With the evidence of P.W.10, the prosecution has closed its side. 35. The incriminating circumstances arising out of the testimonies of the prosecution witnesses were placed before the appellant during the course of his examination under Section 313(1) (b) of the Code of Criminal Procedure. While denying their testimonies as false, he had submitted a written statement, which was received and filed along with the records by the learned Special Judge. In his reply statement, the appellant had stated as follows: "That on 13.07.2000, after receiving a sum of Rs.4,300/- and a cheque for Rs.6,275/- for the electricity charge in respect of June 2000 from P.W.2, the appellant was preparing receipt. Whileso, the Inspector of Police came to the portion, where the appellant was seated and asked to give the electricity charge of Rs.4,300/-, which was received from P.W.2. Thereafter, he was taken to Vigilance and Anti- Corruption Office by the Inspector and made him to touch the currency notes, which were placed there and forced him to dip his hands in the water. He has also stated that on 12.07.2000, a person had come to him and shown the E.B.Card connected with this case and he had also given a cheque and asked him to give receipt, for that the appellant had told him that the electricity charge for the previous month was left unpaid and hence as per the rules of the Tamil Nadu Electricity Board, the amount should be remitted in cash. Besides this, he had also told a sum of Rs.90/- for reconnection and another sum of Rs.124/- towards penalty had to be paid. On hearing this, the said person had picked up quarrel with the appellant and questioned him angrily as to why he had refused to receive the cheque and why the reconnection charge should be paid? The appellant had also replied him that the amount should be paid as per the rules of the Tamil Nadu Electricity Board. Thereafter, the said person had left the office with angry. The appellant had also stated that P.W.2 is not that person. He has https://hcservices.ecourts.gov.in/hcservices/ also stated that since he had asked to pay the electricity tariff in cash as per the rules and he had also asked to pay the reconnection charge along with penalty, this case has been foisted against him in order to wreak vengeance." 36. Excepting Ex.D1 Public Notice published in the Hindu newspaper dated 19.07.2000, no oral evidence was adduced on behalf of the appellant. 37. On appreciation of the evidences, the Trial Court had proceeded to pronounce the Judgment on 20.07.2004 convicting and sentencing the appellant as aforestated. 38. Impugning the Judgment of conviction and sentence, the appellant stands before this Court with this criminal appeal. 39. Heard Mr.P.Wilson, learned Senior Counsel appearing for Mr.T.K.S.Gandhi, learned counsel on record for the appellant and Mr.A.N.Thambidurai, learned Additional Public Prosecutor for respondent. 40. Section 19 of the Prevention of Corruption Act, 1988 enacts as follows: 19. Previous sanction necessary for prosecution.- Sub-section (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-- Clause (c) to Sub-section (1) enacts that In the case of any other person, of the authority competent to remove him from his office. 41. P.W.1 Mr.V.Kumar, who was functioning as the Superintending Engineer, CEDC/(South) Chennai has claimed himself that he was the authority competent to remove the appellant Mr.A.S.Kannan, Inspector of Assessment, Office of the Assistant Engineer, Tamil Nadu Electricity Board, Shastri Nagar, Adyar, Chennai-600 020. He has granted the order of sanction under Ex.P1 to launch prosecution against the appellant. In Ex.P1, P.W.1 has stated that after carefully considering the materials such as copy of the first information report, statement of witnesses, mahazar and other records and the report of the Director, Vigilance and Anti- https://hcservices.ecourts.gov.in/hcservices/ Corruption, Chennai in regard to the allegations and circumstances of the case, he was satisfied that the appellant Mr.A.S.Kannan should be