BAIL SLIP The Appellant/Accused namely A.N.Manickam, was directed to be released on Bail in and by the order of this court made in Crl.MP.No.10458/02 in Crl.Appeal No.1407/2002 dated 9.10.2002 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.1407/2002 A.N.Manickam Appellant Vs State by Inspector of Police Vigilance and Anti Corruption Coimbatore Respondent Prayer:- This Criminal Appeal is filed against the judgement dated 17.9.2002 passed in Special CC.No.13/2000 by the learned I Additional District Judge Cum Chief Judicial Magistrate, Coimbatore, convicting and sentencing the appellant for the offence under Section 7 of the Prevention of Corruption Act to undergo one year Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo Rigorous Imprisonment for one month and for the offence under Section 13(2) read with 13(1)(d) of the PC Act to undergo one year Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo one month Rigorous Imprisonment and ordering the sentences to run concurrently. For Appellant : Mr.S.Shunmugha Velayutham SC for Mr.A.V.Raja For Respondent : Mr.A.Saravanan, GA JUDGEMENT This Criminal Appeal is filed against the judgement dated 17.9.2002 passed in CC.No.13/2000 by the learned I Additional District Judge and Sessions Cum Judicial Magistrate, Coimbatore, convicting and sentencing the appellant for the offence under Section 7 of the Prevention of Corruption Act to undergo one year Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo Rigorous Imprisonment for one month and for the offence under Section 13(2) read with 13(1)(d) of the PC Act to undergo one https://hcservices.ecourts.gov.in/hcservices/ year Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo one month Rigorous Imprisonment and ordering the sentences to run concurrently. 2. The Appellant was working as the Village Administrative Officer of Annur Village, Avinashi Taluk, Coimbatore. The charge against him by the complainant was that the Appellant by illegal means, abusing his position as a public servant obtained pecuniary advantage as a reward for doing an official act punishable under Section 7 and 13(2) read with 13(1) of the Prevention of Corruption Act (herein after referred to as the Act). 3. The Prosecution in order to bring home the guilt against the Appellant examined nine witnesses Pws.1 to 9, marked Ex.P1 to P21 and relied on Mos.1 to 5. 4. The case of the Prosecution is as follows:- a. The complainant PW.2 Senthil Kumar is the brother's son of one Thangavel, who had purchased a house at D.No.12/22-F/3, Bharathiyar Street, Angappa Mudaliyar Colony, Annur from one Ravichandran PW.6 and they intended to change the tariff to one of commercial service connection and PW.2 had contacted the officials in the Electricity Board for change of service connection No.204, which stood in the name of Eswaran and he was asked to produce a ownership certificate from the Village Administrative Officer. When PW.2 met the Appellant and requested him to issue a ownership certificate after handing over the documents as requested by the Appellant, the Appellant demanded Rs.1000/- for issuing necessary certificate, for which PW.2's uncle expressed his inability to pay the amount. When the same was informed to the Appellant, he in turn told PW.2 that unless the the amount is paid, the ownership certificate would not be issued. He finally demanded Rs.800/- on 21.4.1999. But, as PW.2 was not willing to give illegal gratification, he had approached the Vigilance Police on the same day and gave the complaint Ex.P2. b. PW.8, the Inspector of Police, on receipt of the said complaint registered a case in Cr.No.3/99/AC/CD for the offence under Section 7 of the act and prepared FIR Ex.P16 and decided to conduct a trap as accepted by PW.2. PW.8 summoned the witnesses PW.3 Vasantharajan working as a Senior Assistant at Cooperative Department and one Doraisamy. PW.5 received one five hundred rupee note and three one hundred rupee notes from PW.2 and demonstrated the phenolphthalein test to PW.2 and the witnesses summoned by him. On the next day, PW.8 gave the said currency notes smeared with phenolphthalein powder to PW.2 and instructed him to give the amount to the Appellant, if the same is demanded by the Appellant and thereafter, to come out and give the prearranged signal by combing his hair with comb. He also instructed PW.3 to accompany PW.2 to the conversation and told PW.2 to say that PW.3 is his paternal uncle's son. c. In respect of the proceedings held at the Vigilance Office, PW.8 prepared the entrustment mahazar Ex.P3. The raiding https://hcservices.ecourts.gov.in/hcservices/ party, PW.8 and others including PW.2 and 3 left for Annur Village and reached the office of the Village Administrative Officer at about 12.35 pm. As per the instructions, PW.2 and 3 went to the office of the Appellant. On seeing PW.2 and on being told that he had come to collect the ownership certificate, the Appellant had asked about the money. PW.2 handed over Rs.800/- to the Appellant who kept the same in his left side upper pocket of his shirt and asked PW.2 to come at 7 p.m. on the same day. d. Thereafter, PW.2 came out and gave the signal as per the prearranged plan and PW.8 along with the raiding party entered inside and PW.2 identified the Appellant to PW.8. PW.2 was sent out and PW.8 introduced himself as a Vigilance Inspector to the Appellant, who started sweating on being so introduced. Thereafter, PW.8 conducted phenolphthalein test and when the hands of the Appellant were dipped into the solution, it turned into light pink colour. Then PW.8 prepared a mahazar Ex.P12 and seized the shirt MO.7. He also seized Rs.5635/- from the Appellant and the documents Ex.P4 blank sheets signed by Thangavel, Ex.P5 copy of the sale deed, Ex.P6 Attendance Register, Ex.P7 Movement Register, Ex.P8 Receipt Book, Ex.P9 Certificate Register, Ex.P10 chitta and Ex.P11 ownership certificate issued by the Appellant under Mahazar Ex.P12. d. PW.8 then sent the Appellant for remand and the incumbent officer PW.9 took up the case for further investigation and complied with the other formalities, examined the witnesses and after completing investigation, obtained sanction order Ex.P1 from PW.1 and filed a charge sheet against the Appellant for the offences as stated supra. 5. When the accused was questioned under Section 313 of Code of Criminal Procedure, in respect of the incriminating materials appearing against him, the Appellant denied the same and filed a separate statement stating that due to previous animosity against the Appellant who assisted the President of the Town Panchayat, Annur in removing the encroachments made by PW.2 and his cousin brother one Rajagopal, he was falsely implicated. According to him, PW.2 came and placed folded white papers in the table of the Appellant on 22.4.1999 and left the office and within a few minutes, the Vigilance Police headed by Deputy Superintendent of Police Balakrishnan came there and asked the Appellant to take the folded papers and Rs.800/- which was kept inside the said paper and directed him to count the notes. The Appellant had Rs.635/- in his shirt pocket and Rs.5000/- in his pant pocket which he had borrowed from one Krishnasamy. He had further stated that he refused to sign the mahazar prepared by PW.8, as it contained all false statements. It is his case that he had prepared the ownership certificate and was waiting for PW.2 to furnish the tax receipts for the house and door number of the property and also instructed to bring the owner Thangavel. But, PW.2 did not turn up. 6. On the defence side, DW.1 the President of Annur Panchayat was examined to speak about the assistance rendered by https://hcservices.ecourts.gov.in/hcservices/ him in removing the encroachments including that of PW.2 and his relative. Dw.2 has spoken to the fact that he was present in the room of the Village Administrative Officer at the relevant point of time and narrated his version as to what happened on that day. 7. The learned trial Judge, after analysing the evidence and materials placed on record convicted the Appellant as referred to above, which is challenged in this Criminal Appeal. 8. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 9. Mr.S.Shunmugha Velayutham, the learned senior counsel for the Appellant took me through the deposition of the Prosecution witnesses, more particularly, PW.2, PW.3, PW.4 and PW.8 and contended that the Trial Court committed a serious error in convicting the accused, as it failed to take into consideration that the Prosecution has not only been able to prove the demand and acceptance of the bribe, but also recovery of the sum of Rs.800/- as alleged by the Prosecution. 10. On the other hand, Mr.A.Saravanan, the learned Government Advocate for the Respondent supported the judgement and argued that there is sufficient corroboration for the testimony of PW.2 from PW.3 an independent witness and that apart, the very undisputed fact that the amount was seized from the pocket of the Appellant is itself sufficient corroboration for the testimony of PW.2 that the the amount was paid to him. The learned Government Advocate for the State relied on the decisions of the Honourable Supreme Court rendered in the cases of State of AP Vs. V.Vasudeva Rao [2004-SCC-Cri-968] and Madhukar Bhaskararo Joshi Vs. State of Maharashtra [2001-SCC-Cri-34] to countenance his argument that mere fact that the tainted currency notes reached the hands of the Appellant is a sufficient corroboration of a trap witness. 11. The crucial question would be whether the Appellant had demanded any amount as gratification to perform his official duty and whether the said amount was paid by PW.2 and received by the Appellant as consideration for the same. The Appellant even at the earliest point of time had explained the case of falsely foisted on him because of enmity harboured by PW.2 against the Appellant due to the action taken by the President of Annur Panchayat for encroachment and demolished the said encroachments with the assistance rendered by the Appellant in his official capacity. The defence version is that he had assisted the officials in identifying the encroachment made by the encroachers including PW.2 and his cousin brother who was running lottery shop encroaching upon the said place. He had further stated that on the date of trap, PW.2 had placed the folded papers on the table of the Appellant and left the office and thereafter within a few minutes, the Vigilance Police headed by the Deputy Superintendent of Police one Balakrishnan entered into his room and forced him to count the currency notes kept inside the folded papers and thus entangled him into the trap. The categoric defence of the Appellant is that in https://hcservices.ecourts.gov.in/hcservices/ order to wreck vengeance against the Appellant, the trap had been successfully enacted by the Appellant with the help of the Vigilance Department. 12. The learned senior counsel for the Appellant would strenuously contended that PW.2 bore a grudge against the Appellant and pointed out the discrepancies in the evidence of PW.2, PW.3 and PW.8 and PW.9 and submitted that in the light of the said discrepancies, the defence version is probabilised. The learned senior counsel would submit that the onus of proof lying upon the accused person is to prove his case only by preponderance of probability and it is not necessary for the accused to prove his case beyond a reasonable doubt. 13. The learned senior counsel relied on the observation made by the Honourable Supreme Court rendered in the case of Ganga Kumar Srivastava Vs. The State of Bihar [2005-SAR-Criminal-640], wherein it is observed that a serious endeavour should be made by the Vigilance Department especially when allegation against a Government Officer is made for taking bribe. The learned senior counsel pointed out that the Honourable Supreme Court in the said case accepting the defence version that case was falsely foisted on him, because of enmity harboured by the complainant against the accused due to earlier Prosecution of the complainant by the accused for theft of electricity found to be more probable to falsely implicate the accused. 14. It is to be borne in mind that mere recovery of tainted money by itself cannot prove the charge of the Prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show the accused voluntarily accepted the money knowing to be bribe. The presumption cannot be drawn under Section 20 of the Act where the court is of the opinion that no inference of bribing may fairly be drawn. 15. In the present case, the owner of the property for whom PW.2 is said to have approached the Appellant for obtaining a ownership certificate for the purpose of change of electricity connection is one Thangavel, his junior paternal uncle. According to PW.2, before approaching the Appellant, he enquired with the officials of the Electricity Department and he was asked to get a ownership certificate from the Village Administrative Officer. The official from the electricity Department of Annur branch has been examined as PW.4 and his evidence indicated that no such enquiry was made by PW.2 either to him or to any of the official in their office. PW.4 only stated that he had given the guidelines and the procedure for getting electricity connection for domestic purposes. It is seen that the ownership certificate is insisted for getting a domestic service connection and there is no indication that the certificate should be obtained from the Village Administrative Officer. It is relevant for consideration, because PW.4 has admitted in cross examination that the Tahsildar is the authority to issue ownership certificate for the above said purposes. It is pertinent to point here that the owner Thangavel has not been https://hcservices.ecourts.gov.in/hcservices/ examined before the court, though it is stated by PW.2 that the former was not inclined to pay the amount demanded by the Appellant. It is admitted by PW.2 that the said Thangavel was not aware of the complaint given by him. 16. According to the Prosecution, PW.2 had approached the Appellant 25 days prior to the demand and he was asked to come with the relevant documents. After a week, again when he met the Appellant, PW.2 was informed about the incorrect measurements of the property. PW.2 stated that the Appellant got two blank papers signed by the owner Thangavel and only at that stage, he demanded Rs.1000/- as bribe. At one stage, PW.2 admits that he has not handed over the blank signed papers to the Appellant and it was in his custody and the same was also not shown to the investigating officer at the time of trap proceedings. However, he would change his version in his further cross examination and stated that the same was given to the Appellant before he lodged the complaint with the Vigilance Police. That apart, he contradicted his own version by saying that the complaint was drafted in the Vigilance Office by a person whose identity is not known to him, but in the later part of his cross examination, he has changed his earlier version and said that the complaint was written in his lottery shop. 17. From the evidence of PW.2 and 3, it is seen that few other persons were there in the Appellant's room and PW.3's evidence indicated that the amount was paid by PW.2 in the presence of those persons, as he did not say that they left the room on their entering into the office. Though PW.2 stated that on seeing PW.2, the other persons left the room, but that was not corroborated by PW.3's evidence. Further, PW.3 is not clear in his evidence as to which side of the pocket the Appellant kept the bribe money. He has specifically stated that the Appellant had money both in his shirt and pant pockets and he cannot say what was the amount contained in each pocket. But, the phenolphthalein test has been conducted only with regard to the shirt and not the pant pocket. More importantly PW.9 the Inspector of Police who conducted further investigation in this case has admitted that though he had come to know that the Appellant had taken a loan of Rs.5000/- from one K.C.Krishnasamy after verifying the accounts maintained by the said Financier, he has not chosen to examine K.C.Krishnasamy and record his statement. No explanation is forthcoming from the Prosecution as why such a course of investigation has not been done by the investigating officer especially when it has come to their knowledge that the other amount recovered from the Appellant was the one borrowed by him from a Financier. There is no explanation from PW.8 and PW.9 as to why it was not possible to tender his evidence. 18. Admittedly, PW.2 had approached the Appellant for issuance of a certificate 25 days prior to the demand of bribe. Till such date i.e. 21.4.1999, no demand has been made by the Appellant. Ex.P11 the ownership certificate prepared by the Appellant which was recovered from the office of the Appellant shows that the said certificate was prepared as early as on https://hcservices.ecourts.gov.in/hcservices/ 17.3.1999 that is 35 days prior to the demand. In it, the door number is left blank. Ex.P10 chitta was also made ready on 19.3.1999. The defence version is that the Appellant had prepared the certificate and was waiting for PW.2 to furnish the tax receipt and door number of the property, for which the ownership certificate is sought for. PW.2 admitted in his cross examination that he did not furnish the property tax details and the door number of the property as requested by the Village Administrative Officer. The blank regarding the door number in Ex.P11 clearly probabilised the defence version. 19. It is also necessary to place on record that the Appellant in support of his case examined two material defence witnesses. DW.1 is the President of the Annur Panchayat Union who has spoken to the fact of removing the encroachments made by PW.2 and his cousin brother Rajagopal with the assistance of the Appellant. 20. The relevant passage from his testimony is extracted below:- "1998 etk;gh; khj;jpy; v';fs; gFjpapYs;s beL";fhiyapd; Mf;fpukpg;g[ ,Ug;gjhf brhy;yp g";rhaj;J cWg;gpdh; xUth; g[fhh; bfhLf;f mjd; mog;gilapy; me;j Mf;fpuikg;g[fis mfw;w ntz;o ehd; me;j g[fhiu beL";rhiy Jiw TLjy; bray; bghwpahsU;f;F mDg;gp itj;njd;/ mjdog;gilapy; beL";rhiy Jiw bray; bghwpahsh; M$h; vjphp pfuhk eph;thf kYtyfh; K:yk; gPy;L nkg; g[j;jf';fis ghh;j;J Mf;fpuikg;g[fis filed;zlwpe;J mw;iw mfw;wpdhh;fs;/ mg;nghJ epiwa filf;fhuh;fs; mst[fs; khwp cs;sd vd;Wk; vdnt Mf;fpuikg;g[fis mfw;w TlhJ vd;W jLj;jhh;fs;/ xU nfhghy; kw;Wk; bre;jpy;Fkhh; vd;gth;fs; g";rhaj;J filia xl;ona Mf;fpuikg;g[ fil itj;J elj;jp te;jhh;fs;/ me;j fil g";rhaj;J nghh;L filf;F Kd;g[ Rkhh; 15 mo mstpy; itself;fg;gl;oUe;jJ mij beL";rhiy Jiwapdh; kfw;wp tpl;lhh;fs;/ mt;thW me;j filfis mfw;pwanghJbre;jpyFkhUk; nfhghYk; me;jf; filfis mfw;w TlhJ vd;W M$h; tp/V/X/tplk; beL";rhiy Jiw bghwpahshplKk;. thf;Fthjk; bra;J jfuhW bra;jhh;fs;/@ 21. From the above evidence, it is seen that PW.2 had animosity against the Appellant in removing the encroachments made by PW.2 and his relative. Strangely, he was not cross examined on the correctness of the said statements. Only suggestions were given to him (1) that the lottery business of PW.2 was not affected by such removal, (2) that the Authority to remove such encroachment was not with the Highways Department and (3) that he was falsely deposing. 22. Another defence witness who was examined on behalf of the Appellant was DW.2 Murugesan, who has stated that he was in the room of the Appellant while PW.2 entered into on 22.4.1999. He has stated that PW.2 placed the blank white papers on the table of the Appellant and left the room and asked him as to why he had left the white papers on his table. Within two minutes, five or six police personnel barged into his room and asked the Appellant some thing and instructed all those persons who were inside the room to leave the room including Dw.2. https://hcservices.ecourts.gov.in/hcservices/ 23. PW.2, while confronted with the defence version that the Village Administrative Officer participated in the removal of encroachments, he did not deny it, but only pleaded ignorance of it. However, he admitted that after the removal of encroachment, there was a set back in his business and he started working in a private Company thereafter. That apart, no material has been brought out during the cross examination of DW.1 and 2 to discredit their evidence. The above said material evidence clearly supports the defence version that PW.2 had enmity towards the Appellant on account of action taken in the removal of encroachment made by PW.2 with the assistance of the Appellant in identifying the portion encroached upon by him which resulted in loss to his business. Upon consideration of the materials brought by the Prosecution, there are serious discrepancies in regard to the events taken place prior to and at the time of raid. The Prosecution has also not been able to establish by clear evidence, as PW.4's evidence indicated that the Appellant as Village Administrative Officer had no role to play in issuance of the ownership certificate. It is settled preposition of law that if two views are possible from the evidence, the view in favour of the accused favours consideration, when there is plausible and acceptable explanation from the accused. 24. The learned senior counsel for the Appellant relied on the decision of the Honourable Supreme Court rendered in the case of T.Subramanian Vs. State of Tamil Nadu [2006-1-MWN-Cr.-187-SC] that if the reason offered by the accused is probable and reasonable, then the accused had to be acquitted. The Honourable Supreme Court referred to its earlier decision rendered in the case of Punjabrao Vs. State of Maharashtra [2002-10-SCC-371], wherein it is held thus:- "It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the possession, but can establish the same by preponderance of probability." 25. In the present case, the defence of the accused was more probable and therefore, it should be accepted. In view of the discussions made above, I am of the considered view that the defence of Appellant was probable than that of the Prosecution case and that in the facts and circumstances and evidence on record, the defence case must be accepted and the conviction and sentence of the Appellant cannot be sustained and the appeal is liable to be allowed. 26. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the court below in CC.No.13/2000 are set aside and the Appellant is acquitted of the charges levelled against him. It is seen from the records that https://hcservices.ecourts.gov.in/hcservices/ the Appellant had been enlarged on bail by this court. The bail bond if any executed by the appellant shall stand terminated and the fine amount if any paid is ordered to be refunded to him. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Srcm To: 1.The I Additional District Judge and Cum Chief Judicial Magistrate, Coimbatore 2. -do- through The Principal Sessions Judge, Coimbatore 3. The Inspector of Police, Vigilance and Anticorruption, Coimbatore 4. The Public Prosecutor, High Court, Madras + 1 CC TO Mr.A.V.Raja, Advocate, Sr 8227 Judgement in Crl.A.No.1407/2002 AKR (co) RH (16.2.10) https://hcservices.ecourts.gov.in/hcservices/