Bail Slip The Appellants/Accused namely Mrs.Baby Saroja, W/o.K.V.Ramasamy was directed to be released on bail as per the order of this Court dated 26.05.2004 in Crl.M.P.No.6318 of 2004 in Crl.A.No.719 of 2004 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.02.2011 C O R A M The Honourable Mr.Justice K.N.BASHA Criminal Appeal No.719 of 2004 Mrs.Baby Saroja ... Appellant/Accused Vs. State rep. by Addl. Superintendent of Police Vigilance and Anti Corruption (Cr.No.1/AC/2000) Salem District ... Respondent/Complainant PRAYER: Criminal Appeal filed under Section 374 of the Criminal Procedure Code to set aside the conviction and sentence dated 29.04.2004 made in Spl.C.C.No.6 of 2001 on the file of the Special Judge cum Chief Judicial Magistrate, Salem. For Appellant : Mr.D.Shivakumaran For Respondent : Mr.J.C.Durairaj Govt. Advocate (Crl.Side) J U D G M E N T Challenge in this appeal is to the judgment of the learned Special Judge cum Chief Judicial Magistrate, Salem dated 29.04.2004 made in Special C.C.No.6/2001 convicting the appellant herein for the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentencing her to undergo one year rigorous imprisonment with a fine of Rs.500/-, in default three months rigorous imprisonment and also convicting her under Section 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 and sentencing her to undergo one year rigorous imprisonment with a fine of Rs.500/- in default, three months rigorous imprisonment. The sentences are ordered to run concurrently. 2. The prosecution case in a nutshell, is hereunder: i) The accused was working as a Village Administrative Officer at Veeranam village, Salem Taluk, Salem District, during the year https://hcservices.ecourts.gov.in/hcservices/ 2000. P.W.2 is a resident of Thailanur, which comes within the jurisdiction of the office of the accused. He was owning a land settled by his father. Thereafter, P.W.2, in the year 1999 has also purchased a land adjacent to the said land in the name of his wife consisting of 51 cents. Six years prior to 2000, he has submitted two applications to the Taluk office for changing the patta in respect of the said lands. 7 days thereafter he has enquired about the same for which the then Village Administrative Officer demanded Rs.500/- and he has refused to give the said amount. During the grievance day conducted in the said village, he has given fresh applications for the change of patta with the Revenue officials. The said officials informed him to contact the Village Administrative Officer after 10 days. P.W.2 went and met the accused. The accused informed him that patta was not yet made ready and she would inform about the same later. He has enquired 2 to 3 times. Three months thereafter, again a grievance day was conducted and P.W.2 again preferred two petitions for change of patta to the Adhidravidar Welfare Officer. The said officer handed over the petitions to the accused. He met the accused two days thereafter and he was informed by the accused that she would send her menial assistant after making the patta ready. ii) 10 days thereafter, the assistant of the accused informed P.W.2 that the said patta was ready and the accused instructed him to inform P.W.2 to come and meet her. P.W.2 met the accused on that day. The accused informed him that the patta in the name of his wife was ready and demanded a sum of Rs.500/-. P.W.2 refused to give such an amount and the accused reduced the amount to Rs.450/- iii) P.W.2 informed the accused that he would make the amount ready and thereafter he would come and meet her. P.W.2 went to the office of the accused along with his brother-in-law P.W.4 on 04.01.2000 and met the accused. The accused again demanded Rs.450/- and there were heated exchange of words between P.W.2 and the accused. iv) On the same day i.e. on 04.01.2000, P.W.2 along with his brother-in-law (P.W.4) went to the Vigilance Office and gave a written report (Ex.P2) to P.W.12 – Inspector of Police. P.W.12, on receipt of Ex.P2, registered a case in Crime No.1/AC/2000 under Section 7 of the Prevention of Corruption Act, 1988. Ex.P23 is the FIR. He has sent the FIR to the court. v) P.W.12 took up the investigation as per the orders of the Director. He has recorded the statement of P.W.2 and instructed him to come on the next day i.e. on 05.01.2000 at 9.00 a.m with the demanded amount of Rs.450/-. On that day P.W.12 also summoned two witnesses, namely P.W.3 and another, who are the officials from the Forest Department and National Highways. He has also summoned the woman police (P.W.7), namely Sub Inspector of Police, All Women Police Station, Salem, as the accused is a lady. He has asked P.W.3 and another witness to read the report given by P.W.2. Thereafter he has demonstrated the Phenolphthalein Test to P.W.2, https://hcservices.ecourts.gov.in/hcservices/ P.W.3 and others. He has prepared the Mahazar (Ex.P.3) for the said proceedings held in the Vigilance office, signed by the witnesses. He has instructed P.Ws.2 and 3 to go to the office of the accused in a TVS-50 two wheeler and other constables have been sent in other two wheelers and the remaining raiding parties left in a car and jeep. They have stopped their vehicles near the bus stop of the village Veeranam. Thereafter he instructed P.W.2 to go to the office of the accused along with P.W.3. He has already instructed P.W.2 to give the amount, if the accused demands the bribe and after the receipt of the amount by the accused, he instructed him to come out and to give a signal by touching his head thrice. vi) At 11.45 a.m on 05.01.2000, P.Ws.2 and 3 went inside the office of the accused. P.W.12 was waiting with other raiding parties at the bus stop. P.Ws.2 and 3 entered the room of the accused in her office. At that time two village assistants were also present in the room. He has requested the accused to give the patta and the accused asked him whether he has brought the money as instructed earlier. He has taken the currency notes from his left hand side pocket and handed over the same to the accused. The accused received the amount and put the same into the table drawer. She has also given the patta issued in favour of his wife. The accused has not enquired anything about P.W.3. Thereafter, both P.W.2 and P.W.3 came out of the office of the accused and gave the pre-arranged signal. vii) On receipt of the pre-arranged signal, P.W.12 along with his raiding party entered inside the office of the accused. P.W.2 informed P.W.12 that he has already given the amount to the accused and also identified the accused. P.W.2 further stated to P.W.12 that the accused kept the said amount into her table drawer. P.W.2 was further asked to wait outside the office of the accused. viii) P.W.12 introduced himself to the accused. He has conducted Phenolphthalein Test by subjecting the fingers of both hands of the accused and the test proved positive. He has asked about the money. The accused immediately took out the said amount from the table drawer consisting of four 100 rupee notes and one 50 rupee note, totaling to Rs.450/-, stating that the said amount was received as land tax. The said currency notes were compared with the mahazar prepared earlier under Ex.P3. The said amount tallied. The accused informed that she has also given patta (Ex.P4) in the name of the wife of P.W.2. She has also produced Rs.1,246/- from the table drawer informing that the said amount was the land tax collection amount and also handed over Rs.3,030/- from her hand bag stating that the said amount belongs to her. P.W.12 on verification satisfied about the statement made by the accused in respect of the said amount and returned the same to her and handed over Rs.1,246/- to the Revenue Inspector. He has seized six numbers of Land Tax Register Books, marked as Exs.P6 to P11. He has also seized Ex.P12-Settlement Deed. He has arrested the accused. Thereafter, P.W.12 summoned P.W.2 and seized Ex.P4-Patta issued in the name of his wife under Ex.P5. He has also prepared a rough sketch, marked https://hcservices.ecourts.gov.in/hcservices/ as Ex.P14 in respect of the place of occurrence. He searched the house of the accused. No incriminating materials were recovered. Ex.P15 is the search list. At 7.00 p.m he has released the accused as per the orders of the Director. ix) P.W.13-Inspector of Police, Vigilance and Anti-Corruption Department took up further investigation. He examined P.W.2, P.W.3, P.W.7 and others. He has sent the seized material objects for chemical examination as per requisition Ex.P20. P.W.14- Additional Superintendent of Police verified the case records and obtained Ex.P1-Sanction Order and filed the charge-sheet on 30.01.2001 against the accused. 3. The prosecution, in order to substantiate its case, examined P.Ws.1 to 14, filed Exs.P1 to P23 and marked M.Os.1 to 5. 4. When the accused was questioned under Section 313 of the Criminal Procedure Code in respect of the incriminating materials appearing against her through the evidence adduced by the prosecution, the accused denied each and every incriminating circumstances as contrary to the facts. She has stated that she has not demanded any bribe amount from P.W.2 and the amount of Rs.400/- was received towards small savings and Rs.50/- was received towards land tax. D.W.1 was examined on the side of the defence. He has stated that he has paid Rs.200/- towards small savings to the Village Administrative Officer. 5. Mr.D.Shivakumaran, learned counsel appearing for the appellant vehemently contended that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence. It is contended that the prosecution has not proved the alleged demand of bribe said to have been made by the accused prior to the trap as well as at the time of trap. The learned counsel would point out that as far as the demand prior to the trap is concerned, the prosecution placed reliance only on the evidence of P.W.2 and P.W.4, who is the brother-in-law of P.W.2 and there is absolutely no independent witnesses to substantiate the version of P.W.2. It is contended that P.W.2 has come forward with a vague and bald allegations in respect of demand of illegal gratification. 6. The learned counsel appearing for the appellant would also submit that the prosecution has miserably failed to prove the alleged demand of bribe said to have been made by the accused even at the time of trap, i.e., on 05.01.2000 in the office of the accused. It is pointed out that, P.W.3, who is an accompanying witness to watch the conversation between P.W.2 and the accused, has admitted in his cross examination that he is not aware about the discussions took place between P.W.2 and the accused and he has further admitted that P.W.2 went inside the office of the accused and came out after 10 to 15 minutes. Therefore, it is contended that the version of P.W.2 is unbelievable, as he has claimed that he went inside the office of the accused along with P.W.3 and at that point of time the accused asked whether he has brought the amount as she has asked earlier. The learned counsel would also https://hcservices.ecourts.gov.in/hcservices/ submit that the allegation of demand is highly improbable as it is claimed by P.W.2 that the accused demanded bribe for issuing patta. But, on the other hand, the evidence of P.W.12 revealed that the said patta was made ready even on 26.10.1999 and as such the alleged demand is said to have made by the accused on 04.01.2000, is highly improbable and unbelievable. 7. The learned counsel appearing for the appellant, insofar as the recovery of Rs.450/- from the accused by P.W.12- Investigating Officer is concerned, would contend that the accused has admitted the receipt of the amount, but she has given reasonable explanation to the effect that she has received the said amount only towards small savings and land tax and the said version of the accused is also probablised by the evidence of P.W.3, P.W.8 and P.W.12. It is pointed out that P.W.8, who was working as an assistant in the office of the Revenue Inspector, has admitted in his cross-examination that the targets have been fixed for the collection of small savings and Flag Day. 8. It is further pointed out that P.W.3 has stated even in his chief examination that while producing the amount from the table drawer, the accused stated that the said amount was collected for land tax and the same version was given by P.W.12, the Investigating Officer and the said factor was also mentioned in the Mahazar prepared for the trap proceedings (Ex.P13). Therefore, it is contended that the accused has offered probable and reasonable explanation and the said explanation itself is sufficient in view of the principles laid down by the Hon'ble Apex Court to the effect that the accused can substantiate her version by preponderance of probabilities. 9. In support of his contentions, the learned counsel appearing for the appellant, would also place reliance on the following decisions:- i)State v. K.Narasimhachary, reported in 2006 CRI.L.J.518 (Supreme Court); ii)Suraj Mal v. The State (Delhi Administration), reported in AIR 1979 SUPREME COURT 1408 ; iii)K.Subba Reddy v. State of Andhra Pradesh, reported in (2008) 1 MLJ (Crl) 372 (SC) ; and iv)Mohammed Ali v. State represented by Inspector of Police, reported in CDJ 2008 MHC 2153 ; 10. Per contra, Mr.J.C.Durairaj, learned Government Advocate (Crl.Side) would submit that the prosecution has proved its case by adducing clear and cogent evidence. It is contended that the prosecution has proved the demand made by the accused prior to the trap through the evidence of the complainant (P.W.2) and his version is corroborated by P.W.4. The learned Government Advocate (Crl.Side) would submit that the demand made by the accused at the time of trap i.e. on 05.01.2000 is also proved through the evidence of P.Ws.2 and 3. It is contended that the bribe amount of Rs.450/-, namely M.O.1 series coupled with the positive proof of Phenolphthalein Test, substantiates the prosecution version. It is https://hcservices.ecourts.gov.in/hcservices/ contended that the accused stated at the time of trap that she has received the said amount only towards land tax and she has not stated about the collection of small savings funds and such version was given by the accused only at the time of questioning under Section 313 of the Criminal Procedure Code. Therefore, it is contended that the accused has not come forward with a clear explanation for the receipt of the bribe amount from P.W.2. Therefore, the learned Government Advocate (Crl.Side) would submit that the prosecution has proved the demand as well as receipt of the amount pursuant to the demand of illegal gratification made by the accused in this case. 11. I have carefully considered the rival contentions put forward by either side and thoroughly scrutinised the entire evidence available on record and also perused the impugned judgment of conviction. 12. The prosecution heavily placed reliance on the evidence of P.W.2-complainant, P.W.3-trap witness and P.W.12-Investigating Officer, Vigilance Department, who has conducted the trap. P.W.2 claimed that he has preferred two applications for the issuance of patta in respect of the land settled in his favour by his father and in respect of the land purchased by him in the name of his wife and for the issuance of patta, the accused, being the Village Administrative Officer, demanded Rs.500/- initially and reduced it to Rs.450/- subsequently. It is the burden of the prosecution to prove the first and foremost ingredient, namely, the demand of illegal gratification made by the accused to attract the offences under Section 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. This Court is of the considered view that once the prosecution failed to prove the above said ingredient, the entire prosecution case would collapse. 13. Let me now analyse and assess the prosecution version in respect of the alleged demand of illegal gratification said to have been made by the accused. It is the version of P.W.2 that he has given two petitions seeking for the relief of issuance of patta in respect of the land settled in his favour by his father as well as in respect of the property purchased in the name of his wife and the said two petitions have been given during the year 1999 and the accused demanded illegal gratification of Rs.500/- initially and reduced it to Rs.450/- subsequently for issuing the same. It is his further version that again he met the accused on 04.01.2000 and even at that time, the accused demanded the bribe amount and there were heated exchange of words between P.W.2 and the accused. It is seen that P.W.2 has not given any specific date prior to 04.01.2000 in respect of the alleged demand of bribe said to have been made by the accused. It is relevant to note from the perusal of the chief examination of the evidence of P.W.2 that it is merely stated by P.W.2 that "one day" and he has also not stated specifically as to why he had agreed to pay the alleged bribe amount as demanded by the accused. P.W.2 has given the report, Ex.P.2 immediately on the same day, i.e., on 04.01.2000 to P.W.12, Inspector of Police, Vigilance and Anti-Corruption, Salem. The above version of P.W.2 https://hcservices.ecourts.gov.in/hcservices/ shows that the accused said to have demanded the illegal gratification on 04.01.2000 for the purpose of issuing the patta. P.W.12 has admitted in the cross-examination that Ex.P.4 discloses that the order of issuing patta was passed on 26.10.1999 itself. A perusal of Ex.P.12, petition for issuing patta preferred by P.W.2, discloses that the said petition related to 22.09.1999. There is absolutely no basis for making such demand by the accused, who is a Village Administrative Officer, more particularly in view of the admission of P.W.8, Revenue Inspector, that the patta would be issued only at the Tahsildar's office. In view of the said evidence available on record to the effect that the order for issuing patta was made ready as early as on 26.10.1999 and as such, the alleged demand of illegal gratification said to have been made by the accused on 04.01.2000, as per the version of P.W.2, is highly improbable and unbelievable. The prosecution is left with the evidence of P.W.2 and P.W.4, his brother-in-law, in respect of the alleged demand of illegal gratification made by the accused prior to the trap. P.W.4, being a close relative, it is not safe to place reliance on his evidence. Therefore, this Court has no hesitation to hold that the alleged demand of illegal gratification said to have been made by the accused is not only improbable, but also unbelievable and the prosecution has miserably failed to prove the demand said to have been made prior to the trap. 14. Now coming to the version of the prosecution in respect of the demand of illegal gratification said to have been made by the accused on the date of trap, the prosecution placed reliance on the evidence of P.Ws.2 and 3. P.W.3 is a accompanying witness. P.W.12, instructed P.W.3, who is an official working Forest Department, Salem, to accompany P.W.2 to the office of the accused and to watch the happenings and conversions between P.W.2 and the accused. P.W.3 categorically admitted in his cross-examination that P.W.2 went inside the office of the accused and he was inside for 10-15 minutes and he came out thereafter. It is further admitted by P.W.3 that while P.W.2 was inside the office, the accused was perusing the files and P.W.2 talked with her only after 10 minutes and he is not aware as to the conversation took place between P.W.2 and the accused. Therefore, it is crystal clear that P.W.3 has not corroborated the version of P.W.2 in respect of the alleged demand made by the accused at the time of trap. It is also admitted by P.W.3 that when P.W.2 himself went to the office of the accused, two Assistants to the Village Administrative Officer were also present and they have not been examined by the prosecution to substantiate the version of alleged demand of illegal gratification made by the accused. In view of these factors, the prosecution has also not established or proved the alleged demand of illegal gratification said to have been made by the accused even at the time of trap. 15.0. At this juncture, it is relevant to refer the following decisions of the Hon'ble Apex Court in respect of demand of illegal gratification. 15.1. The Hon'ble Apex Court in T.SUBRAMANIAN Vs. STATE OF https://hcservices.ecourts.gov.in/hcservices/ TAMIL NADU reported in 2006 (1) SCC (Cri.) 401 has held as hereunder, "The evidence in this case no doubt proves that a sum of Rs.200/- was paid by P.W.1 to the appellant. But the crucial question is whether the appellant had demanded the said amount as illegal gratification to show any official favour to P.W.1 and whether the said amount was paid by P.W.1 and received by the appellant as consideration for showing such official favour. Mere receipt of Rs.200/- by the appellant (admitted by the appellant) will not be sufficient to fasten guilt under Section 5(1)(a) or Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification." 15.2. The Hon'ble Apex Court in Venkatasubba Rao V. State reported in 2007 (3) SCC (Cri.) 175 has held as follows : “24. .... In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under : "20. Presumption where public servant accepts gratification other than legal remuneration – (1) Where, in 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 a 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.” 25. 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. 26. In M.S.Narayana Menon V. State of Kerala reported in (2006) 3 SCC (Cri.) 30, this Court held, “Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding.” 15.3. The Hon'ble Apex Court in State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wandhede reported in (2010) 2 SCC (Cri.) 385 https://hcservices.ecourts.gov.in/hcservices/ = (2009) 15 SCC 200 has held as hereunder : "16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety." 15.4. The principle laid down by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also, as stated earlier, the prosecution has