IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16 .11.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.Nos.61 and 34/2008 1.D.Balasubramanian Appellant/A1 in Crl.A.61/2008 2.M.Rangasamy Appellant/A2 in Crl.A.34/2008 Vs State by Inspector of Police SPE/CBI/ACB/Chennai Respondent in both Crl.As Prayer:- These Criminal Appeals are filed against the judgement dated 11.01.2008 passed in CC.No.1 of 2007 by the learned II Additional District Judge, Special Court for CBI Cases, Coimbatore. For Appellants : Mr.S.Ashok Kumar, SC for Mr.K.Kalyanasundaram-CA.61/08 Mr.S.Ashok Kumar, SC for Mr.S.Gunalan-CA.34/08 For Respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBI Cases JUDGEMENT These Criminal Appeals are filed by A1 and A2 in CC.No.1/2007 against the judgement dated 11.01.2008 passed by the learned II Additional District Judge, Special Court for CBI Cases, Coimbatore, thereby (a) convicting and sentencing each of the appellants/A1 and A2 for the offence under Section 120B of IPC read with Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.500/- each, in default to undergo Rigorous Imprisonment for six months, (b) convicting and sentencing each of the appellants/A1 and A2 for the offence under Section 7 of the Prevention of Corruption Act, 1988 to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.500/- each, in default to undergo Rigorous Imprisonment for six months and (c) convicting and sentencing each of the appellants/A1 and A2 for the offence under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.500/- each, in default to undergo Rigorous Imprisonment for six months and ordering the sentences to run concurrently. 2. The case of the Prosecution was that the Appellant/A1 was working as a Head Constable in the Railway Protection Force, Erode and the Appellant/A2 was working as a Constable in the said Force. One Ravi, the complainant herein was arrested by RPF, Erode on 26.08.2006 on the allegation of unlawful possession of Railway property at his business premises and was remanded to judicial custody in Cr.No.9/2006. He was released on bail on 02.09.2006 on condition that he should sign at RPF Police Station on every Monday, Wednesday and Friday at 10.00 a.m. He proposed to file nomination for contesting the local body election and for that purpose, he wanted to get some particulars. On 25.09.2006, he requested the Appellant/A1 D.Balasubramanian to provide a copy of the First Information Report registered against him by RPF, Erode and A1 demanded a bribe amount of Rs.500/- and asked him to bring the bribe money on the next day, that is, on 26.09.2006. Since the complainant/ PW.3 did not want to pay the bribe amount, he lodged a written complaint Ex.P3 against A1 to CBI. As per the orders of Superintendent of Police, Chennai, a trap was laid by PW.8, Inspector of Police CBI/ACB, Chennai. PW.4, Karthikeyan, the Inspector of Central Excise and K.R.Manoharan were summoned. He introduced them to PW.3 and asked them to read the report Ex.P3. Thereafter, PW.8 demonstrated the phenolphthalein test, after noting down the numbers of the currency notes in the Mahazar Ex.P4. The tainted currency notes are MO.13 (Series). PW.8 asked PW.4 Karthikeyan to go in advance and watch the conversation between A1 and PW.3 and accordingly, he left to RPF Police Post. He also instructed PW.3 not to touch the money, unless it was demanded. PW.3 left in his TVS Excel Moped. PW.8 and his team followed PW.3 in a Car. 3. They reached the said RPF Post at 10.30 a.m. PW.8, the Inspector of Police Kalaimani and others took position on the northern gate and the Deputy Superintendent of Police, Roy Alexander, the independent witness K.R.Manoharan, the Sub Inspector K.K.Rajan and the Constable R.Manoharan took position at the southern gate of RPF Post. PW.3 went inside the Office and A1 was not there. A2 was sitting in a room and when PW.3 enquired about A1, A2 asked him why he wanted to see A1 and PW.3 informed that he had come with an application for a copy of FIR as requested by A1. A2 asked him to wait outside and informed the Sub Inspector, who in turn perused the application and then, instructed A2 to furnish the details. A2 took him to the writer and told him that PW.3 was contesting local body election, but he was not making them happy. At that time, A1 came to the room and on seeing A1, A2 told him that PW.3 was not making them happy. On hearing it, A1 informed A2 that on the previous day he had already told him to look after them and asked A2 to receive Rs.500/- from PW.3 and keep it with him. So saying, A1 left the office. Thereafter, A2 gave the details sought for by PW.3 written in a paper. Thereafter, A2 asked for the money and PW.3 asked him whether he could give the money there itself, to which A2 told him to wait near the mango tree. Thereafter, A2 came to the mango tree and PW.3 took the money from his pocket and gave it to A2. He received it in his right hand and kept in his left side shirt pocket and went to the backside of his office. PW.3 gave the pre-arranged signal to PW.8. 4. On receiving the pre-arranged signal, PW.8 along with his raiding party rushed to the office of the accused and PW.3 identified A2 to PW.8 and stated that the amount was received by A2. PW.4 also narrated the sequence of events to PW.8. Thereafter, PW.8 introduced himself to A2 and enquired him and asked him about the money received from PW.3. A2 admitted the receipt of the currency notes. 5. PW.8, then, took him to the office of the Inspector, RPF located at the other end of the Verandah and PW.8 conducted phenolphthalein test in respect of the fingers of left and right hand of A2, his left side shirt pocket and a paper tea cup. The respective solutions turned pink and proved positive. The currency notes were received for phenolphthalein test and the said test proved positive. PW.8 then received RPF identity card. 6. At that juncture, A1 Balasubramanian came to the Office and PW.3 narrated the sequence of events. When A1 was enquired as to his demand made to PW.3, he admitted the same. His identity card was also seized. Then, A1 and A2 were arrested. PW.8 also received the application given by PW.3 for furnishing details and got the photo copy of the book, in which PW.3 was signing in compliance with the order of the court. The certified copy of the muster roll of A1 and A2 attested by Inspector of RPF was also seized. He also prepared the rough sketch of the RPF Post. 7. Further investigation was taken over by PW.9, who examined the witnesses and recorded their statements. PW.9, on receipt of relevant documents and sanction order from PW.2 on 21.12.2006 for prosecuting A1 and A2 and after completing investigation, filed the charge sheet against the accused under Sections 120B of IPC read with Sections 7 and 13(2) read with 13(1)(d) of the revention of Corruption Act 1988. 8. The case was taken on file in CC.No.1/2007 by the learned II additional District Judge, Special Court for CBI cases, Coimbatore and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as nine witnesses (PW.1 to PW.9) and also relied on Exs.P1 to P21 and thirteen material objects (Mos.1 to 13). 9. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied each and every incriminating circumstances as totally false. 10. On the side of the Defence, A2 filed a separate statement, inter alia, stating that PW.3 was inimical to A1 and A2, in view of the case registered against him for unlawful possession of the Railway property. Kalaimani, the Inspector of Police, who participated in the trap throughout, had animosity against A1 and A2, as they did not comply with his illegal demands. He had grudge against them and with the assistance of PW.3, who was inimical to A1 and A2, foisted a false case against them. Dws.1 to 2 were examined and Exs.D1 to D3 were marked. ExC1 was marked on the Court Side. 11. Through DW.1, the Junior Assistant in Erode Municipality, the register relating to the nominations made by the candidates for contesting election in 45 wards in Erode Municipality was marked to show that PW.3 did not file nomination paper for contesting the local body election of Ward No.14. In order to show that none of the officers viz. PW.8, the Deputy Superintendent of Police, Roy Alexander, Inspector Kalaimani or any other CBI Officer stayed in Kalingarayan Inspection Bungalow on 26.9.2006, the registers relating to the period from April 2003 to December 2007 were marked as Exs.D2 and D3. 12. The court below, after hearing the arguments advanced on either side and considering the entire evidence and materials available on record, has come to the conclusion that the Prosecution has proved its case against the Appellants/A1 and A2 and awarded punishments as referred to above. Being aggrieved against the same, these criminal appeals have been filed. 13. Mr.S.Ashok Kumar, the learned senior counsel for the Appellants contended that the evidence of PW.3 and PW.4 cannot be accepted on any reasonable standard and the fact that PW.3 was inimical towards the Appellants was evident from the evidence placed on record. He also pointed out that there are material contradictions in the evidence of PW.3 and PW.4, which improbabilises the Prosecution version. 14. On the other hand, Mr.N.Chandrasekaran, the learned Special Public Prosecutor would contend that the evidence led by the Prosecution is cogent and consistent, in so far as the demand, acceptance and recovery of illegal gratification are concerned. He would submit that the Trial Court has taken into consideration all the materials placed on record and on appreciation of the same, it has come to the right conclusion, which according to the learned Special Public Prosecutor does not warrant any interference. The attention of this court was invited to the decisions of the Honourable Supreme Court reported in AIR-1964-SC-575 (Dhanvantrai Balwantrai Desai Vs. State of Maharashtra), 1966-3-SCR, 1974-Crl.J-509 (Mahesh Prasad Gupta Vs. State of Rajasthan), 1997-9- SCC-477 (C.K.Damodaran Nair Vs. Government of India), 2000-8-SCC-571 (Madhukar Bhaskarrao Joshi Vs. State of Maharashtra), 2004-6-SCC-488 (State of AP Vs. R.Jeevaratnam) , 2007-7-SCC-625 (Girja Prasad (Dead) by LRs Vs. State of MP) and 2008-3-SCC-Crl-855 (State of AP Vs. P.Satyanarayana Murthy) to strengthen his contention that where the Prosecution has proved that the accused had accepted the gratification, which was not legal remuneration, the statutory presumption under Section 20 of the Prevention of Corruption Act becomes operative in full force and the burden is shifted to the accused to displace the presumption. He would emphasize that it is obligatory on the court to raise it, once the Prosecution evidence has proved the recovery of money from the pocket of the accused, unless the contrary is proved by the accused. 15. I have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgment of conviction. 16. It it undoubtedly true that when the fact that the accused had received the gratification was proved, the legal presumption is that it was by way of motive for doing the official act and the burden is on the accused to rebut the same. In the present case, admittedly, the money was not recovered from A1. Even according to the Prosecution, money was recovered from A2. In such circumstances, unless the demand by A1 was proved and further, unless pre-arrangement in the nature of conspiracy or abetment  between A1 and 2 was proved, no basis exists for invoking Section 20 of the Prevention of Corruption Act. 17. 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. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration, but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the Prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the Prosecution. Even while invoking the provisions of the Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. 18. The version of the Appellants/A1 and A2 before the Trial Court was that of innocence and false implication. It is their categoric version that in view of animosity between the complainant/PW.3 and the Appellants in registering a case against PW.3 for unlawful possession of the railway property, they have been targeted and a false case has been set up against them with the active assistance of one Kalaimani, the Inspector of Police who had ill will and grudge against them. 19. As per the Prosecution case, PW.3 was involved in an offence i.e. unlawful possession of the railway property. It is brought out from this witness that PW.3 was arrested and later released on bail after seven days. According to the defence, A1 was an eye witness in the said criminal case. Although PW.3 denied it, but PW.6 Jayaganesh, the Inspector of Police, RPF admitted that A1 was an important witness in the case registered against PW.3. The evidence also showed that A1 was instrumental in registering the case against PW.3 for the offence under the Railway Property Protection Act. Therefore, it is probable that he had grudge against A1. 20. At this juncture, it is relevant to point out that a doubt, which appears to be reasonable, has been entertained with regard to the conduct of PW.3 as to whether he had approached RPF Police for getting the particulars of the criminal case registered against him. His evidence indicated that he had engaged a lawyer to defend his case and it is seen that he has moved a bail application and obtained bail. Therefore, he must be aware of the particulars of the case registered against him. That apart, in Ex.P3 complaint, he has stated that he required a copy of the First Information Report and therefore, he approached A1 and requested him to furnish a copy of the First Information Report. It is alleged that A1 demanded bribe amount of Rs.500/- to furnish a copy of the First Information Report. But, in his evidence, he stated that A1 demanded bribe for furnishing the particulars of the case. As per his evidence, he was asked by A1 to bring an application making a request for furnishing particulars and the reason for such particulars. Accordingly, he brought an application, which, as per the Prosecution, was seized by PW.8 Trap Laying Officer, at the time of recovery mahazar. It is important to note that along with Ex.P7, the application seeking for particulars, Ex.P6 a book containing the signature of PW.3 signed by him in compliance of condition, Ex.P14 certified copy of muster roll of A1 and A2 and Ex.P8 and Ex.P9 case details furnished by A2 and his nomination form were also seized by PW.8 and all those documents, except Ex.P7, were attested by the RPF Officials. 21. It is the contention of the defence that Ex.P7 was not seized from the RPF Police and that is why, it was not attested by any of the RPF Officials. It is also not attested by any independent witnesses, whereas the other documents are attested by independent witnesses. The learned senior counsel for the Appellants drew my attention to the evidence of PW.5 Venu Sub Inspector of Police, RPF, Erode, who has stated that he was on duty at RPF Post, Erode on the relevant date i.e. 25.09.2006 and PW.3 came to the Office, but did not ask for any details of the First Information Report. His evidence cannot be discarded on the ground that he was treated as hostile, as the court can rely on such portion of his evidence, if found satisfied and receives corroboration from other circumstances in the case. PW.8 admitted in his cross examination that Ex.P6 the book containing the signatures of PW.3 for complying the condition was attested by PW.5, Venu, the Sub Inspector of Police and Ex.P14 muster roll was attested by the Inspector Jayaganesh PW.6. He also admitted that he has not given any acknowledgment to RPF Post regarding the seizure of Ex.P7 from their Office. Therefore, it is evident that there is no reliable proof for seizure of Ex.P7 application said to have been given by PW.3. The said material discrepancy raises a genuine doubt regarding the genesis of demand projected by the Prosecution. 22. The learned senior counsel also laid stress on the point that one Kalaimani was inimical and had an axe to grind with the Appellants, inasmuch as he was instrumental in arranging for the trap proceedings and he was present throughout, which also revealed from the evidence of the Trap Laying officer. The learned senior counsel pointed out to the testimony of PW.8, who has stated that he requested Kalaimani, Inspector, CBI, who was camping at Erode regarding investigation of Insurance cases, to arrange for two independent witnesses for the trap proceedings. It is also seen from his evidence that the Inspector Kalaimani was with the trap team throughout the proceedings on 26.9.2006. Though no animosity could be attributed to Kalaimani, Inspector of Police merely on the ground that he was part of the trap team, but the fact remains that he was on other duty i.e. in regard to investigation of insurance cases and there is no reason for him to joint the trap team. Bearing in mind that the genesis of the bribery demand is doubtful in this case, the explanation given by the Appellants has to be considered in the light of the other evidence in this case. 23. It is well settled that the accused is not required to establish his defence by proving beyond reasonable doubt as the Prosecution, but can establish the same by preponderance of probability. The said principle is reiterated time and again in various decisions of the Honourable Supreme Court and it is suffice to refer to the recent decision of the Honourable Supreme Court reported in 2004-SCC-Crl-1130 (Punjabrao Vs. State of Maharashtra). 24. Even according to the Prosecution, the demand was made by A1 to the complainant on 25.09.2006 and admittedly, he did not receive the money from PW.3. On the contrary, Prosecution's own evidence clearly indicates that when A2 told A1 that PW.3 is not making them happy, neither PW.3 tried to pay the money to A1 nor A1 asked PW.3 for the bribe money. The evidence is that A1 told A2 that he had spoken to PW.3 on the previous day about it and instructed A2 to get the money and keep it with him. In spite of A2 complaining that PW.3 was not making them happy, PW.3 did not chose to hand over money to A1. Neither he instructed A2 to give the particulars sought for by PW.3 to him. It is only on the direction of the Sub Inspector of Police, A2 has furnished the particulars that is much before the bribe money was handed over to him. Even at the first time when A2 enquired PW.3 as to why he was asking for A1, PW.3 only said about the particulars he required and did not say anything about the bribe demanded by A1. His evidence indicated that A1 had asked Rs.500/- as bribe amount, as he had to share it with the Sub Inspector of Police. But, when PW.5 Sub Inspector of Police enquired him as to what he wanted and why he was asking for A1, PW.3 did not complain to him about the demand made by A1 for furnishing the particulars. PW.3's evidence clearly indicated that PW.3 never complained to PW.5 the Sub Inspector of Police about the illegal demand made by A1. 25. It is relevant to point to the evidence of PW.5, the Sub Inspector of Police, RPF with regard to the fact that PW.3 did not ask for any particulars, though he came to the Office to sign in compliance of the order of the court. It is true that PW.5 was declared hostile by the Prosecution, but to find out whether there was any truth in the statement of PW.3 that the bribe was demanded by A1 when he sought for particulars of the case, the evidence of PW.5 is required to be looked into. it is with regard to the above fact, in my opinion, it required to be looked into. His evidence cannot be brushed aside lightly in the light of evidence brought on record by the defence that PW.3 did not file any nomination to contest the elections and further, the application Ex.P7 was not attested by any of the Officials of RPF Post, thus making seizure as projected by the Prosecution doubtful. 26. DW.1, the Junior Assistant working in the Erode Municipality has categorically stated that no nomination was filed by Ravi, son of Singaram, PW.3 herein to contest the election for Ward No.14. In fact, he denied the suggestion that PW.3 had filed nomination and later it was withdrawn by him. But, PW.3 has said in his evidence that he filed nomination to contest election for Ward No.14 and later withdrawn. The testimony of DW.1 and Ex.D1 belies the version of PW.3 that he filed nomination and later withdrew it. 27. In the background of above facts and circumstances, the testimony of PW.3 could not be accepted as there is no independent corroboration for demand and his own testimony makes the demand doubtful, in view of the discussions made above. 28. As regards A2, merely because he was entrusted with some money, which admittedly to be passed on to A1, it cannot be held that he was guilty of any one of those offences, unless it is established that he was a party to the arrangement and the arrangement arrived at was that the money would be handed over to A2 to be given over to A1. Apparently, A2 was not expected to help the complainant. The assurance to the complainant to give the copy of the First Information Report or even the particulars of the case, according to the Prosecution, was given by A1 and according to the Prosecution's own case and the evidence of PW.3, A2 was not present at that time and nor it is alleged that he had any knowledge about the same. Under the said circumstances, it cannot not be held that A2 accepted this amount for any purpose. 29. It is pertinent to point that even according to the Prosecution, A2 did not demand any money as such and he asked PW.3 to make them happy. The exact words said to have been uttered by A2 to PW.3 is @v';fis vy;yhk; Fc&p gLj;jkhl;lhah@. It is seen from PW.3's evidence that A1 asked A2 to get Rs.500/- from PW.3 i.e. quantifying the