CRL.APPEAL NO.372 and 359 of 2006: The Appellant/Accused No.1 viz.,R.Gunalan Crl.Appeal No.372/06 was directed to be released on bail as per the order of this Court dated 24.4.2006 in Crl.M.P.No.2771/06 in Crl.Appeal No.372/06. The Appellant/Accused No.2 ViZ., R.Venkatachalam was directed to be releasesd on bail as per the order of this Court dated 20.4.2006 in Crl.M.P.No.2674/06 in Crl.Appeal No.359/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.10.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.Nos.372 and 359/2006 1.R.Gunalan Appellant/in Crl.A.372/2006(Accused No.1) 2.R.Venkatachalam Appellant/in Crl.A.359/2006(Accused No.2) Vs The State by Deputy Superintendent of Police Vigilance and Anti Corruption Department Erode Wing, Erode District Respondent in both Crl.As (Complainant) Prayer:- These Criminal Appeals are filed against the judgement dated 12.04.2006 passed in CC.No.44/2001 by the Special Judge Cum Chief Judicial Magistrate, Erode, convicting and sentencing each of the appellants/A1 and A2 for the offence under Sections 7, 13(2) and 13(1)(d) of the Prevention of Corruption Act to undergo one year Rigorous Imprisonment each and to pay a fine of Rs.1000/- each, in default to undergo Rigorous Imprisonment for one month each. For Appellant : Mr.B.Sriramulu, SC for Mr.N.Mohideen Basha-Crl.A.359/2006 Mr.N.Manoharan-Crl.A.372/2006 For Respondent : Mr.R.Prathapkumar, GA (Crl.Side) for Both Crl.As JUDGEMENT These Criminal Appeals are filed by the appellants/A1 and A2 in CC.No.44/2001 against the judgement dated 12.04.2006 passed by the learned Special Judge Cum Chief Judicial Magistrate, Erode, convicting and sentencing each of the appellants/A1 and A2 for the offence under Sections 7, 13(2) and 13(1)(d) of the Prevention of Corruption Act to undergo one year Rigorous Imprisonment each and to pay a fine of Rs.1000/- each, in default to undergo Rigorous Imprisonment for one month each. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the Prosecution is that the Appellant/A1 was working as a Senior Draftsman at Taluk Office, Gopichettipalayam and the Appellant/A2 was working as a Firka Surveyor at Vaniputhur Firka in the year 1999. The complainant S.P.Chennimalai Goundar is an agriculturist, a resident of Kanchanoor Village and a close friend of PW.4 Lawrence. He was looking after the lands of PW.4, which stood in the name of his wife Josephine Anthoniammal. She owned an an extent of 76 cents of wet lands, out of which, an extent of 3 cents had been sold to one Elangovan, PW.5 and four others on 22.6.1998 under Ex.P12 registered sale deed. While making sub division and when the lands were measured, A2 said to have committed a mistake by allotting 4 ½ cents in the sub division, which was detected by the Village Administrative Officer Indrani PW.7, who in turn informed the matter to PW.2. Thereafter, at the instance of the Revenue Inspector, A2 had assured to rectify the mistake. 3. After coming to know of the said mistake, Josephine Anthoniammal submitted a petition dated 26.02.1999 to the Tahsildar, Gopichettipalayam to rectify the mistake. As there was no response till the end of May 1999, PW.4 along with PW.2 met A2 on 08.06.1999 and came to know that the file was pending with A1. Later, PW.2 and PW.4 along with A2 met A1 on 08.06.1999 and requested for issuance of rectification order , for which according to the Prosecution, A1 and A2 have demanded Rs.1000/- and Rs.500/- respectively towards illegal gratification. As PW.2 and PW.4 had no money at that time, they were asked to bring the money to their Office on 11.06.1999. PW.2 and PW.4 were not willing to pay the bribe to A1 and A2 and therefore, they decided to give a complaint to the Vigilance Cell. 4. Accordingly, after three days, i.e. on 11.06.1999, PW.2 gave a complaint Ex.P3 to the Vigilance Cell, based on which, PW.14 laid the trap. PW.14 arranged the trap and after following the usual procedure of handing over the bribe amount to the complainant PW.2 in the presence of PW.3 Abdul Khani, an Officer in the Horticulture Department and one Ponnusamy, Assistant Engineer, TWAD instructed PW.2 to pay the amount of bribe to the Appellants only on their demand. The complainant was earlier shown the demonstration on the effect of phenolphthalein powder in the presence of PW.3. He was also given instructions as to how to give the pre-arranged signal after the trap to the raiding party. The pre-trap mahazar Ex.P5 was accordingly made. 5. Thereafter, PW.2, PW.3, PW.14 and Ponnusamy went to the Gopichettipalayam Taluk Office. PW.2 and PW.3 went inside the Taluk Office and informed the Appellants that PW.2 had brought Rs.1500/- . A2 asked PW.2 to pay the amount to A1. On receiving the money, A1 counted it and put it in the table drawer. The pre- arranged signal was then given by PW.2 to the raiding party and the raiding party came inside and recovered the money from A1. However, there was no recovery from A2. Necessary chemical test was conducted and PW.14 prepared a mahazar, a sketch and a search https://hcservices.ecourts.gov.in/hcservices/ list. Thereafter, PW.15 took up further investigation and after obtaining sanction, charge sheet was laid against the Appellants/A1 and A2. 6. The Appellants pleaded not guilty to the charges and their defence was one of denial. The Appellant/A1 submitted a separate statement along with 313 Statement. At the trial, the Prosecution examined as many as sixteen witnesses, but the evidence of the following witnesses would assume importance, namely, PW.1. the Assistant Director, Survey Department, who accorded sanction, PW.2, the complainant Chennimalai Gounder, PW.3, Abdul Khani shadow witness, PW.4, Lawrence, a witness for demand of bribe, PW.5 the purchaser, PW.7, Indrani, the Village Administrative Officer, PW.8, Devendran, Senior Draftsman, PW.10 Jambulingam, Senior Drafstman, PW.12 Velliangiri, Tahsildar, PW.13 Deputy Circle Inspector, Land Survey Department, Erode and PW.14, PW.15 and PW.16 the investigating officers. 7. The learned trial Judge believed the testimony of the witnesses on the point of demand and acceptance of Rs.1500/- as bribe amount and accordingly convicted the Appellants/A1 and A2 as stated above. 8. The question arises for consideration is as to whether the conviction recorded on the basis of the above said witnesses is sustainable in law. 9. Mr.N.Manoharan, the learned counsel for the Appellant/A1 and Mr.B.Sriramulu, the learned senior counsel for the Appellant/A2, in the first place, have taken me through the evidence of these witnesses. The learned counsel for the Appellants argued that the court below has not at all appreciated the evidence in its proper perspective. It has been argued that no reliance could be placed on the testimony of PW.2, PW.3 and PW.4 and pointed out a number of circumstances to show that the testimony of the said witnesses are doubtful on the point of demand and acceptance of bribe. The learned counsel for the Appellants also submitted that there are circumstances, which would throw a considerable light to accept the explanation offered by the accused as plausible, which has not been considered at all by the Trial Court. It is, thus, submitted that the conviction of the Appellants was not legal and proper in law. 10. Per contra, Mr.Pratab Kumar, the learned Government Advocate (Crl.Side) for the State no doubt tried to support the conviction of the Appellants on the evidence of the aforesaid witnesses. 11. In appreciating the evidence in this case, the back ground should not be forgotten. The complaint was preferred not by the aggrieved person, namely, PW.4 Lawrence. Though he deposed that he repeatedly met the Appellants to get the rectification order, but there was no proper response. The evidence indicated that even on 08.06.1999, that is the first date of demand, PW.4 was very much https://hcservices.ecourts.gov.in/hcservices/ available and in fact, the demand was made to him only. PW.2 also admitted that on that day itself, PW.4 gave the bribe money, but there is no explanation as to why PW.4 has not preferred the complaint. The evidence disclosed that except on 11.6.1999, on all other dates PW.4 met the accused and there is no dispute that on all those occasions, there was no demand by the Appellants. When PW.4 made himself available on all those dates and accompanied PW.2 to meet the Appellants, why he made himself scarce on 11.6.1999, particularly on the date of giving bribe to the Appellants remained unanswered. 12. PW.2 says, in the chief examination, that the accused asked PW.4 to give the money through PW.2. This version is coming forward only in the examination before the court and the same is not available in the FIR Ex.P33. On this aspect, PW.14 Investigating Officer admitted in his cross examination that he did not enquire anything about the reason as to why PW.4 Lawrence has not given the complaint, though no reason was given for not preferring the complaint by PW.4. 13. At this juncture, it is also relevant to point out to the contradiction in the testimony of PW.2 and PW.4, wherein PW.2 stated in his evidence that he was getting wages from PW.4 for looking after his lands and further, when cultivation is done by PW.2, he would give only the balance amount after deducting the mahasool expenses. When PW.4 was confronted with the said statement, PW.4 denied having given any wages to PW.2 and also denied that PW.2 used to give the mahasool after deducting the mahasool expenses. This contradiction assumes importance in considering whether PW.2 was really taking care of the lands belonging to PW.4 and whether the entire episode as projected by PW.2 and PW.4 could be true. The defence case is that PW.2 was instrumental in concoction of the false case against the accused by his superiors in order to stall promotion of A1. The conduct of PW.4 in not accompanying PW.2 at the time of giving money throws a considerable doubt on the Prosecution case. 14. That apart, even on 08.06.1999, PW.2 and PW.4 decided not to pay any bribe to the Appellants and to prefer complaint against them to the Vigilance Department. But, they have given the complaint only on 11.6.1999. In the FIR, it is stated that they were asked to give the bribe money within 11.6.1999, but there is no plausible explanation from them for the delay of three days in giving the complaint, that too, when PW.2 had taken the money from PW.4 even on 08.06.1999. Why he waited for three days in giving the complaint also throws a considerable doubt on the Prosecution case. The conduct of the complainant in keeping silence is a circumstance suggesting improbability in his version that the accused demanded bribe to do the work. 15. The Prosecution relies on the evidence of Abdul Khani, PW.3 for corroboration to substantiate their version for acceptance of bribe money by the Appellants. PW.3 is an employee from Horticulture Department. It transpires from his cross examination https://hcservices.ecourts.gov.in/hcservices/ that the employees from his office had been witnesses in trap cases to the Vigilance Department. It has been suggested to him by the defence that one Subramani and Loganathan were witnesses in similar trap cases for the Anti Corruption Department in Cr.Nos.41/2000 and 39/2000. No doubt, there is no evidence that he is inimically disposed against the accused, but he admitted that there is no written order from his superior in deputing him for this purpose. 16. At this juncture, it is relevant to refer to the evidence of PW.8, M.Devendran, Senior Drafstman in the same office where A1 was working. He has stated that A1 was seated on his left side and A2 was sitting by his side on the date of occurrence. According to him, two persons came to the Appellants and were talking. In his cross examination, he would state that they were talking to A1 for two minutes and he does not know the identity of those persons. His evidence indicated that the Anti Corruption Squad entered into the room immediately after those two persons left the room. His evidence does not indicate that any money was paid to A1. PW.8 reiterated that he was very much present, when the Anti Corruption Squad entered into the hall and his evidence indicated that he has been watching over two persons talking to A1. In this context, it is necessary to point out that there is no corroboration for recovery of money from independent source more particularly from PW.8.. 17. The necessity for 'independent witness' in cases involving trap cases is emphasised in various decisions as the evidence of bribe giver is in the nature of an accomplice and therefore, his story, prima facie, would be of suspect. It is held that before any court could act on his testimony, corroboration in material particulars is necessary. In C.M.Girish Babu Vs. CBI (2009-3-SCC-779), the Honourable Supreme Court , while dealing with the case under the Prevention of Corruption Act, 1988, by referring to its previous decision in Suraj Mal Vs. State (Delhi Admin.) (1979-4-SCC-725) held that mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused, when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the Prosecution against the accused and the said view is reiterated in a recent decision of the Honourable Supreme Court reported in State of Kerala and another Vs. C.P.Rao (2011-6-SCC- 450). 18. Bearing in mind the principles laid down by the Honourable Supreme Court , if we scrutinise the evidence of PW.2 and PW.3 closely in the light of other evidence on record, it will be apparent that the contradictions in the evidence of the Prosecution militate against the veracity of the Prosecution case. Regarding mode of insertion of money into the pocket of PW.2 and seizure of currency from the table of A1, there are serious contradictions between the evidence of PW.2 and PW.3, which create a genuine doubt in the Prosecution case. PW.2 has stated that the bribe money was inserted in his inner pocket by the raiding party. https://hcservices.ecourts.gov.in/hcservices/ Whereas, PW.3, in his cross examination, contradicts by saying that PW.2 got the money viz Rs.1500/- from the raiding party and he kept it in his inner pocket. PW.2 says that after getting the money from him, A1 counted it and casually threw the currency on the right side drawer of his table. He did not say that the said drawer was locked by him after the money was kept inside. Whereas PW.3 says that A1 got the money, counted with his two hands and kept it in the right side drawer, locked it and had the key with him. He further contradicted himself in the later part of his cross examination that the table drawer of A1 was not locked and it remained opened, when the raiding party entered into the hall. Even according to the Prosecution, both A1 and A2 demanded money individually. When it is so, what is the reason for PW.2 to enquire as to whom the money to be given. Admittedly both A1 and A2 were sitting side by side and the question does not arises as to whom the money should be given to. 19. That apart, PW.2's evidence indicated that A1 did not enquire about PW.2, though a stranger had accompanied him while giving bribe. In the chief examination PW.2 did not say anything about the enquiry being made by A1 regarding PW.3. Normally, the bribe amount is not accepted in the presence of a stranger. The accused would not have accepted the bribe amount in the presence of a stranger, that is, PW.3 Abdul Khani. The very fact that the accused did not enquire about PW.3 is another circumstance which again throws a considerable doubt on the Prosecution version. Where the Prosecution evidence is clouded with such circumstances against the normal human behaviour, then a reasonable doubt arises and it would be unsafe to act on that part of Prosecution version. The witnesses PW.2 and PW.3 contradicted in material particulars as a result of the cross examination, their credit substantially if not wholly were shaken. Therefore, it is not proper for the court below to pick out a sentence or two from their evidence and use the same to support the evidence of the trap witnesses. 20. Another important fact, which cannot be marginalized and blinked away, is that the report Ex.P14 regarding rectification had been sent by A2 on 17.05.1999 itself. Another senior draftsman, PW.10's evidence indicated that the first sub division made by A2 was approved by the then Tahsildar Ganesan and the file was sent to him on 28.07.1998 itself. After coming to know about the mistake committed in making sub division, at the instance of PW.7 Village Administrative Officer Indrani, the owner Anthoniammal had submitted an application dated 26.02.1999. But, the said application contains the seal of the Office dated 04.02.1999. On the said application, A2 had rectified and submitted a report on 17.05.1999. PW.15 the investigating officer would admit about the final report submitted by A2 on 17.05.1999. Pointing out to the above, the learned senior counsel would submit that there was absolutely no reason to demand bribe by A2. 21. As regards A1, he had assumed charge on 13.11.1998 and he had taken action on 23.11.1998. The evidence placed on record shows that the then Tahsildar Ganesan has not signed the https://hcservices.ecourts.gov.in/hcservices/ file and the same was kept pending at the hands of PW.13 till 01.06.1999. Thereafter, PW.13 had instructed A1 to put up the file along with his endorsement on 01.06.1999 and the same is evident from the endorsement made by him which is found at page 212 in the typed set submitted by the accused. It is pointed out by the learned counsel for the Appellant that the endorsement in page 210 made by A1 (Ex.D2) had been scored off and it is the case of the Appellants that it is done at the instance of his superior. In this regard, departmental action had been initiated against PW.13 which is not disputed by the Prosecution. The learned counsel would strenuously contend that once it is evident that the file was prepared on 23.11.1998 and re-written on 01.06.1999, absolutely there was no need or necessity for the accused to rectify the sub division. It is further pointed out that the single window system was in force, whereupon the general public had no occasion to meet the individual officers in Taluk Office. PW.12 Velliangiri, the Tahsildar admits the same. Further, PW.12's evidence clearly indicate that the accused persons were not competent to meet the demand of rectification of the revenue records and it could be rectified only by way of an appeal to the Revenue Divisional Officer. 22. The evidence on record in this case discloses that A2 has submitted his report on 17.05.1999. The evidence of PW.13 indicated that he had instructed A1 to put up the file along with his endorsement on 01.06.1999 as discussed earlier. If PW.2 and PW.3 sensed any delay or if there were any hindrances, they could have brought the same to the notice of the Tahsildar or any other Officer. But, in this case, no such complaint was made either by PW.2 or by PW.4. PW.12, the then Tahsildar's evidence on this aspect is clear. It is as extracted below:- @me;j xw;iw rhsu Kiwg;go (single window system) jtWfs; ,Ug;gpd; kDjhuUf;F jpUg;jp Vw;glhtpl;lhy; rhh; Ml;rpaiunah. Tl;lhl;rpaiunah re;jpf;f ntz;Lbkd;W. mYtyfj;jpy; gpw mYtyh;fis re;jpf;ff;TlhJ vd;Wk; ,Ue;jJ/ kDjhunuh mtuJ fztnuh vd;dplk; te;J Kiwapltpy;iy/ vd;kPJ xG';F eltof;if vLf;fg;gl;lJ.@ 23. It is disclosed from the evidence that the A1 was neither issuing authority nor the outward clerk. He figured somewhere in between. It is seen that the endorsement made by A1 on 23.11.1998 is made to score off and the same endorsement that "mistakes rectified, further action not necessary and file may be closed" is rewritten on 01.06.1999. As contended by the Appellants, the same appears to be deliberate and planned. Suggestion to PW.12 Tahsildar that department action in this regard was taken against him is accepted. According to the Appellant, his superiors bore grudge against him and wanted to implicate him to stall his promotion gains credence in this regard. Taking the above facts and circumstances into consideration, it could not reasonably be held that the money was demanded to rectify the mistake. https://hcservices.ecourts.gov.in/hcservices/ 24. Yet another contention was raised by the learned counsel for the Appellants that the sanction granted on 19.7.2001 was even without perusal of the entire case file and pointed out to the evidence of PW.16 wherein he has categorically stated that the entire records were produced for the perusal of PW.1 only on 17.9.2001. He would submit that grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence and that if a cognizance of the offence is taken erroneously, the plea in that regard can be raised even before an appellate court. The learned counsel relied on the decision of the Honourable Supreme Court reported in 2005-8-SCC-370 (State of Karnataka Vs. C.Nagarajaswamy) to support his argument. 25. On the other hand, the learned Government Advocate for the State contended that PW.1 the sanctioning authority had given sanction order, after due application of mind and the sanction order itself clearly indicated that the sanctioning authority had applied its mind to the facts and circumstances of the case. The learned Government Advocate would submit that even if there was an error, omission or irregularity in passing the sanction order, in the absence of any proof that it has occasioned serious failure of justice, the findings of the Trial Court cannot be interfered with. He placed reliance on the decision of the Honourable Supreme Court reported in 2010-2-SC-Crl-272 (State of MP Vs. Jiyalal) . 26. As held by the Honourable Supreme Court in various cases that the need for sanction has arisen because it is in public interest that a public servant should be saved from the harassment of frivolous or unsubstantiated allegations. Grant of sanction is not an idle formality or an acrimonious exercise, but a solemn and sacrosanct act which affords protection to Government servants and must therefore be strictly complied with before any prosecution can be launched against a public servant concerned. It is also held that the impugned order of conviction cannot be reversed on the ground of irregularity in the sanction unless failure of justice has occasioned thereby. 27. In the instant case, PW.16 the investigating officer, who had been examined to speak about the grant of sanction by PW.1 the sanctioning authority, has stated as below:- @vjphpfs; ,UtUk; epy Ma;t[ rk;ge;jg;gl;l Jiwapy; ,Ue;jjhy; mth;fs; kPJ Fw;wg;gj;jphpf;if jhf;fy; bra;a mDkjp nfl;L mg;nghija mrp!;blz;l; iluf;lh; rh;nt & nyz;l; hpf;fhh;l;!; <nuhL mth;fSf;F tp& V/rp/ jiyikafj;jpypUe;J tpz;zg;gk; te;jpUe;jJ/ me;j tpz;zg;gj;jpd; efiy bgw;W ehs; 17/09/2001 md;W jpU/gpufhrntY. V/o/ rh;nt & nyz;l; hpf;fhh;l;!; <nuhL mth;fis mtUila mYtyfj;jpd; nehpy; re;jpj;J Kjy;jfty; mwpf;if efy; kw;Wk; Mtz';fis fhl;o vjphpfspd; kPJ Fw;wg;gj;jphpf;if jhf;fy; bra;a Kfhe;jpuk; ,Ug;gij epUgPj;J. MtUila thf;FK:yk; gjpt[ bra;njd;/@ https://hcservices.ecourts.gov.in/hcservices/ His evidence indicated that PW.1 had perused the complaint, FIR copy and other documents produced by the investigating officer only on 17.09.2001. PW.1 in his evidence would only state that he received the requisition from the Director, Vigilance and Anti Corruption dated 14.05.2001 and a Police Officer from Erode Vigilance Department met him and produced the FIR copy and other relevant records. He is silent about when those records were produced before him. In the sanction order Ex.P1 in the reference column only the report of Director of Vigilance and Anti Corruption, Chennai is referred to and no other relevant records are referred to. The sanction order is dated 19.07.2001, but the same has been signed on 31.07.2001 by the Assistant Director, Survey and Land Records, Erode. 28. It appears from Ex.A1 that the sanctioning Authority had only perused the report of the Director of Vigilance and Anti Corruption. In the light of testimony of PW.16, whose evidence indicated that on 17.9.2001 he produced the complaint, FIR copy and other relevant records to PW.1 and satisfied him as to the existence of prima facie case against the Appellants, it has to be held that all relevant materials were not placed before