BAIL SLIP The Appellant/Accused viz, M.Balraj, is directed to be released on bail as per the order of this Court dated 17.12.2007 in Crl.MP.No.1 of 2007 in Crl.A.1115 of 2007. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.08.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN Criminal Appeal No.1115 of 2007 M.Balraj .... Appellant Vs. State, rep.by the Deputy Superintendent of Police, Vigilance and Anti Corruption, Chennai City-I Dept., Chennai .... Respondent Prayer : Appeal filed under Section 374 (2) of the Code of Criminal Procedure, against the Judgment dated 23.11.2007 and made in C.C.No.1 of 2005, on the file of the learned IV Additional Sessions Judge, Chennai. For Appellant : Mr.N.Manoharan appointed as Amicus Curiae For Respondent : Mr.A.N.Thambidurai Additional Public Prosecutor J U D G M E N T This memorandum of criminal appeal is directed against the Judgment dated 23.11.2007 and made in C.C.No.1 of 2005, on the file of the learned IV Additional Sessions Judge, Chennai, convicting the appellant under Sections 7 and 13(2) r/w 13(1)(d) https://hcservices.ecourts.gov.in/hcservices/ of Prevention and Corruption Act, sentencing thereunder to suffer two years of rigorous imprisonment and to pay a fine of Rs.10,000/- for each offence in default to suffer further period of six months of rigorous imprisonment for each offence. 2. Challenging the Order of conviction and sentence, the appellant, who is the accused in the above said case has knocked at the door of this Court by way of this appeal. 3. The facts, which give rise to the memorandum of criminal appeal may be summarised as under: 3.1. During the period from 25.12.2002 to 12.06.2003, the appellant M.Balraj had been working as Information and Public Relations Officer at Chennai Collectorate. 3.2. One Mr.Manas Parida (not examined in this case) a Bachelor of fine arts degree holder and specialised in painting based at Bhuvaneshwar, Orissa, was running a non-governmental organisation. Previously he had visited Chennai from Orissa on number of occasions. He used to conduct exhibitions. 3.3. P.W.2 Mr.P.Subramani was working as the building incharge and supervisor of C.P.Ramasamy Iyer Foundation Exhibition Hall. That hall was rented out to the said Mr.Manas Parida so as to facilitate him to conduct exhibition from 06.06.2003 to 15.06.2003. 3.4. That on 11.06.2003 at about 08.30 p.m. the appellant M.Balraj came out to C.P.Ramasamy Iyer Foundation Exhibition Hall and visited the gallery, in which the said exhibition was conducted by Mr.Manas Parida. He had contacted Mr.Manas Parida and told him that he could not conduct exhibition without the permission from the Collectorate. He had also asked Mr.Manas Parida to call P.W.2 P.Subramani. After his arrival, the appellant had introduced himself saying that he was coming from Collectorate and told that the exhibition was conducted without obtaining permission from Collectorate and that for conducting exhibition without obtaining permission, a fine of Rs.30,000/- could be levied and hence in order to avoid imposing of fine, he had demanded a sum of Rs.10,000/- as gratification instead of levying fine. 3.5. The appellant had also given his address, mobile number as well as the landline number in a slip to P.W.2 and asked him to come to his office between 10.00 a.m. to 12.00 noon on the next day or otherwise the exhibition would be sealed. https://hcservices.ecourts.gov.in/hcservices/ 3.6. P.W.2 was not willing to give the demanded amount of Rs.10,000/- as gratification. Hence, he planned to prefer a complaint before the Vigilance and Anti-Corruption Department. 3.7. That on 12.06.2003, P.W.2 lodged a complaint under Ex.P2 before P.W.8 Deputy Superintendent of Police, Vigilance and Anti- Corruption Department, Chennai. After ascertaining the conduct of the appellant, P.W.8 had registered a case in Crime No.6/AC/2003 under Section 7 of the Prevention of Corruption Act, 1988. On the requisition made by P.W.8 the Chief-Engineer, Agricultural Engineering Department, Nandanam had sent two employees viz. P.W.3 Samuel Thomas and one Sankaralingam (not examined) to be the official witnesses. 3.8. On request, P.W.2 had produced 20 numbers of 500 rupees currency notes before P.W.8 and those notes were smeared with phenolphthalein powder. P.W.8 had also demonstrated the test of Sodium Carbonate and phenolphthalein in the presence of witnesses and also explained about the intrinsic value and importance of the test. After the test, P.W.8 had handed over the tainted currency notes to P.W.2 with instruction to pay the amount only on demand by the appellant and further instructed to show a signal by putting his handkerchief on his left shoulder to indicate the demand and acceptance of the amount as gratification by the appellant. 3.9. P.W.3 and the other witness Mr.Sankaralingam had appeared before P.W.8 at 10.30 a.m. on 12.06.2003. P.W.3 Samul Thomas was directed to accompany to P.W.2 and further instructed to observe the conversation, which might be transpired place between P.W.2 and the appellant M.Balraj and the happenings as well. The proceedings were covered in an entrustment mahazer under Ex.P4 attested by the official witness P.W.2 and P.W.8 and one Mr.S.Rajendran. Mr.Manas Parida had also signed in the mahazar. 3.10. Then the trap team and Mr.Manas Parida had been to Collectorate, Chennai. While P.W.8 and another official witness Sankaralingam had kept at a distance, P.W.2 accompanied by P.W.3 Mr.Samuel Thomas and witness Mr.Manas Parida had entered the fifth floor of the Collectorate, Singaravelar Maligai at about 11.40 a.m. and visited the office of the appellant M.Balraj. The appellant was found sitting in his seat. He had received P.W.2 and P.W.3 and witness Manas Parida and asked them to sit. 3.11. The appellant had asked the witness Manas Parida to stay out of the office while keeping P.W.2 and P.W.3 inside. The https://hcservices.ecourts.gov.in/hcservices/ appellant had also closed the doors of his office and demanded the money from P.W.2 and P.W.2 had also tendered the tainted currency notes viz. 20 nos. of 500 rupee currency notes to the appellant and asked him to count it. The appellant Balraj had received the currency notes in his hands and started counting and then kept it on his table. Then, P.W.2 and P.W.3 were seen off by the appellant upto the doors. 3.12. Thereafter, P.W.2 had shown the pre-arranged signal at 11.30 a.m. Soon after observing the signal, P.W.8 and his team and official witness Mr.Sankaralingam had rushed inside the office of the appellant M.Balraj. P.W.2 and P.W.3 and witness Manas Parida had identified the appellant M.Balraj. 3.13. P.W.8 had also identified himself and introduced other official witness to the appellant M.Balraj. While so, the appellant was found trembling and perplexed as he then wiped both the hands on the table cloth. On seeing this, P.W.8 had instructed him not to do that. 3.14. On the instruction given by P.W.8 Sodium Carbonate solution was prepared in two clear glass tumblers and the appellant M.Balraj was instructed to dip his fingers of both hands separately. While he was dipping his fingers, the solution turned into pink colour. Thereafter, the solutions were transferred and separately sealed and labelled with identification marks to indicate the left and right hands. Those sealed bottles were marked as M.O.2 and M.O.3 respectively. 3.15. When P.W.8 had enquired the appellant M.Balraj about the money received by him, he had indicated the amount, which was placed on the table and he had replied that he had received the said amount from P.W.2 towards the Chief Minister's Relief Fund. When enquired P.W.3, he had stated that after sending witness Manas Parida out of his office room, the appellant Mr.M.Balraj had told that if the exhibition was to be conducted without obtaining licence, they had to pay a sum of Rs.5,000/- per day towards the fine and therefore he had asked Rs.10,000/-. 3.16. The numbers of twenty tainted 500 rupee currency notes were compared with Ex.P4 entrustment mahazar and found the currency notes were tallied. The currency notes were also seized under M.O.1. The small chits under Ex.P5, containing his office particulars, mobile number and telephone number etc., written by the appellant M.Balraj and handed over to P.W.2, was also seized in a mahazar. Then the appellant was arrested. His attendance register was also seized. https://hcservices.ecourts.gov.in/hcservices/ 3.17. Thereafter, P.W.8 had prepared the recovery mahazar under Ex.P6 and all the witnesses including P.W.8 had signed in it. Apart from this, P.W.8 had also searched in his room at Liberty Park Hotel situated at Kodambakkam, where the appellant M.Balraj was staying. During the course of search, no incriminating materials were seized. The search list was under Ex.P14. 3.18. Thereafter, the appellant M.Balraj was sent to Court along with the material objects for being remanded to judicial custody. He has also entrusted the case records to P.W.9 J.Lyods Chandra, Deputy Superintendent of Police. P.W.9 had also taken up the case for further investigation. That on 13.06.2003 he had been to the office of the appellant M.Balraj and seized the attendance register (Ex.P15). Page No.32 of Ex.P15, in which the signature of the appellant found place to mark his presence on that day was marked as Ex.P16. Then he had also sent a requisition to the Court through the Head Constable to send the material objects for chemical examination. He had also examined the witnesses including the witness Manas Parida and recorded their statements. That on 08.09.2003, the appellant M.Balraj was examined and his statement was also recorded. The chemical examination report was also received through the constable Mr.Muralidharan. Thereafter, he had examined P.W.7 D.Kasthuri, Scientific Assistant, Forensic Department and recorded her statement. The rules and regulations, with regard to the conducting of exhibition, received from the Director of Information and Public Relation Officer, which marked as Ex.P17. 3.19. Since he went on transfer, P.W.10 had taken up the case for further investigation. That on 16.06.2004, he had received Ex.P1 Order of prosecution against the appellant and after examining P.W.1 and recording the statement, he had laid a final report against the appellant/accused on 23.12.2004. 3.20. With the evidence of P.W.10, the prosecution had closed its side. 3.21. During the course of the proceedings under Section 313 (1)(b) of the Code of Criminal Procedure, the incriminating circumstances arising out of the testimonies of the prosecution witnesses were explained and questioned. For which, the appellant/accused had replied as follows (English translated version of his statement in vernacular language is given as follows): C.P.Ramasamy Iyer Foundation Art Gallery is situated at Chennai Alwarpet. Originally it was owned by one C.P.Ramasamy https://hcservices.ecourts.gov.in/hcservices/ Iyer and now it is being maintained by his relatives. They are powerful both in money and muscle. Whenever the exhibition is conducted, they will not get prior permission from the Tamil Nadu Government. That on 11.06.2003, when he had been to the said Art Gallery for inspection, he had found that they had not obtained prior permission from the Government. If the proceedings are initiated by the appellant/accused and the Collector and the exhibition is sealed, the owner of the art gallery would be prejudiced. Therefore, with the help of Police, they had foisted the case against him. He had also stated that no movable or immovable properties were purchased either in his name or in the name of his wife. Neither oral nor documentary evidence was let on behalf of the appellant/accused. 3.22. On appraising the evidences both oral and documentary, the learned Trial Judge has found the appellant/accused guilty under Sections 7 and 13(2) r/w 13(1)(d) of Prevention and Corruption Act and sentenced as aforestated. 4. Being aggrieved with the conviction and sentence imposed on him by the Trial Court, the appellant/accused has approached this Court by way of this appeal. 5. Heard Mr.N.Manoharan, learned counsel appointed as Amicus Curiae for the appellant and Mr.A.N.Thambidurai, learned Additional Public Prosecutor for the respondent. 6. In a criminal proceedings, the prosecuting agency is under the strict obligation to establish the culpability of the person, who is being accused of beyond all reasonable doubts. Emphasis is supplied to the phrase 'beyond all reasonable doubts' because mere accusation and examining some witnesses is not at all sufficient to bring home the guilt of an accused person. The witnesses so examined on the part of the prosecuting agency and their evidences must be placed far from the reach of suspicision. Their testimonies must be cogent, convincing and corroborate with each other, so as to enable the Court to come to definite conclusion that the guilt of the perpetrator of the crime has been proved beyond the shadow of doubt. 7. In K.M.Nanavati vs. State of Maharashtra, AIR 1962 SC 605 : 1962 Supp (1) SCR 567 : (1962) 1 Cri LJ 521, the Apex Court has held that "As in England so in India, the prosecution must prove the guilt of the accused, i.e., it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the https://hcservices.ecourts.gov.in/hcservices/ prosecution or by the accused, there is a reasonable doubt whether the accused committed the offence, he is entitled to the benefit of doubt. If there is a presumption against him and the burden to rebut that presumption lies on him." 8. Apart from this, this Court also desires to quote the following two more decisions of the Apex Court to add an additional strength to the above proposition of law: i. V.Venkata Subbarao v. State, reported in 2007 Cr.L.J.754(S.C.), and ii. M.Narasinga Rao v. State of Andhra Pradesh, reported in 2001 Cr.L.J.515(S.C.), 9. In the former case, the Apex Court has held that "Section 20 of Prevention of Corruption Act provides for raising of a presumption only if a demand is proved. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution." 10. In the later case, the Apex Court has held that: "The only condition for drawing a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification." 11. On coming to the instant case on hand, the appellant M.Balraj was working as Information and Public Relations Officer at Collectorate, Chennai during the relevant period. He was charge sheeted by the respondent Police under Section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. 12. Section 7 of the Prevention of Corruption Act, 1988 reads as follows: 7. Public servant taking gratification other than legal remuneration in respect of an official Act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or https://hcservices.ecourts.gov.in/hcservices/ for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. 13. Section 13(1)(d) of the Prevention of Corruption Act, 1988 reads as follows 13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,- (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public, interest; 14. Section 13(2) of the Prevention of Corruption Act, 1988 reads as follows: 13. Criminal misconduct by a public servant.- (1) ................. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. 15. For the purposes of proving a case under Sections 7 and 13 of the Prevention of Corruption Act the prosecution is obliged to prove that there was demand of money which was not legal or in other words that the public servant was demanding illegal gratification in respect of an official act and he in fact received or obtained the money as an illegal gratification, by https://hcservices.ecourts.gov.in/hcservices/ corrupt or illegal means or by abusing his position as a public servant, or while holding office as a public servant only then a person can be convicted. The recovery de hors the demand would not be sufficient to convict the accused. This proposition of law is laid down in Ram Swaroop Rathore v. State of Madhya Pradesh, 2000 Cr.L.J.1882. 16. Validity of sanction of prosecution under Ex.P1: P.W.10 says that on 16.06.2004 sanction was accorded through the Directorate of Vigilance to launch prosecution against the appellant. Ex.P1, order of sanction, was accorded by P.W.1 Mr.V.Ramadoss, Secretary to Government, Information and Tourism Department, Chennai, in his capacity as the competent authority to remove the appellant, Information and Public Relation Officer, Collectorate, Chennai. In Ex.P1, P.W.1 has stated that after fully and carefully considering the materials, such as F.I.R, copy of the statement of witnesses, mahazars and other records and the report of the Director of Vigilance and Anti-Corruption in regard to the said allegations and circumstances of the case, he was satisfied that the appellant should be prosecuted in a Court of law for the said offences. 17. Ex.P4 has been termed to be the entrustment mahazar, which details the pre-trap proceedings. As it appear from this document, P.W.2 had produced twenty numbers of five hundred rupee currency notes before P.W.8, Deputy Superintendent of Police for being smeared with phenolphthalein powder for the purpose of handing over to the appellant on his demand. As it is seen from the testimonies of P.W.2, P.W.3 and P.W.8, the numbers of the currency notes were noted in Ex.P4. Ex.P6 is the recovery mahazar, which speaks about the post-trap proceedings. After recovery of the tainted currency notes from the appellant, the numbers of the currency notes were compared with the numbers noted in Ex.P4 entrustment mahazar. 18. P.W.2 does not speak about this fact and for this reason, on request made by the learned Special Public Prosecutor, he was treated hostile and was permitted to be cross-examined. But, P.W.3, in his chief-examination has spoken to about this fact. He says that P.W.8 Deputy Superintendent of Police had compared the numbers of the tainted currency notes with the numbers noted in Ex.P4. In his cross-examination, he has admitted that when the numbers of the tainted currency notes were compared with Ex.P4, the following numbers of the tainted currency notes were not found tallied with Ex.P4: 1. IEA228669 2. 8AU971397 https://hcservices.ecourts.gov.in/hcservices/ 3. 2CL3067597 4. JPQ245610 19. On coming to the evidence of P.W.8 trap laying officer, in his chief-examination, he would state that after recovery of M.O.1 series viz.the tainted currency notes, the numbers were compared with the numbers noted in Ex.P4 entrustment mahazar and found to be tallied. In his cross-examination, he has fairly admitted that Ex.P4 entrustment mahazar was written by him and the numbers of the currency notes were also noted down by him. 20. In his cross-examination, he has also subsequently stated that the numbers of the currency notes were written by him in Ex.P4 entrustment mahazar on the narration of one Police Constable Narayanan. But, the said police constable Narayanan has not been examined here. Further, he would state that the numbers of the currency notes found in Ex.P6 recovery mahazar were also written by him on the narration of another person. But, he did not remember his name. It is also revealed from his cross-examination that the seized tainted currency notes were sent to Court through a police constable. He has also admitted that Form-95 was written by him. But, certain numbers of M.O.1 series currency notes were found corrected. In this connection, he has fairly admitted that the correction was made by him. He would go one step further and admitted in his cross-examination that since the numbers of the tainted currency notes found in Ex.P6 recovery mahazar were not tallied with Ex.P4 entrustment mahazar, he had made some correction in Form-95 in the numbers of the currency notes. 21. Ex.P7 is the receipt dated 12.05.2003 signed by one Mr.K.Magesh for C.P.Ramasamy Iyer Foundation for having received a sum of Rs.5,000/- from Art and Crafts Exposition towards the advance payment for exhibition from 06th June to 15th June 2003 (main gallery). On the reverse of the receipt under Ex.P7, nine numbers of currency notes are found to have been written. But, the actual denomination of the currency notes have not been written. 22. Similarly, Ex.P9 also seems to be a receipt dated 07.06.2003. This receipt seems to have been issued by P.W.4 Shantha, who is the manager of C.P.Ramasamy Iyer Foundation Exhibition Hall for having received a sum of Rs.27,000/- from Art and Kraft Expositions for the conduct of exhibition from 6th June to 15th June 2003 in the main gallery. On the reverse of this receipt under Ex.P9 also the numbers of thirty four five hundred rupee currency notes were noted. https://hcservices.ecourts.gov.in/hcservices/ 23. Apart from this, the number of one thousand rupee currency note has also been written. The total amount comes to Rs.18,000/-. But the remaining numbers of the currency notes have not been written. Exs.P7 and P9 have not been issued during the trap proceedings. Usually, the numbers and the denomination of the currency notes are not written on the reverse of the receipt whenever receipts are issued for payment. But it is somewhat peculiar mysterious and also seems to be mechanical in this case that the numbers of the currency notes have been written even on the reverse of the receipts viz.Exs.P7 and P9. 24. On perusal of the Judgment of the Trial Court, from Paragraph No.26, it is revealed that when the appellant was questioned by P.W.8 Trap Laying Officer about the presence of the alleged tainted money over his table, he has stated that he had received that money for Chief Ministers' Relief Fund. In this connection, the Trial Court has raised a little bit doubt saying that if it is so there is no necessity for the accused to wipe his hand on the table and need not tremble on seeing the trap laying officer. 25. The mere gesture and assumption, based on the conduct of the appellant, cannot lead the Court to conclude that the appellant would have received the tainted money with an intention to receive the bribe or graft for discharging his official duty. 26. Ex.P5 is said to be a scrap of paper, wherein it is alleged that the appellant himself had written as follows: "The Chennai Collector Chennai Collectorate (Singaravelar Maligai) Rajaji Salai Chennai-600 001 5th Floor M.Balraj Phone No.25268163 The Information & Public Relations Officer Chennai Collectorate Chennai-600 001" 27. In this connection, the learned counsel appearing for the appellant has submitted that if really the appellant was intended to receive money, whey he had mentioned the Collectorate Office in Ex.P5. 28. The learned counsel appearing for the appellant, while advancing his arguments, has made reference to Ex.P7, receipt https://hcservices.ecourts.gov.in/hcservices/ dated 12.05.2003, which appears to have been issued by one Mr.K.Magesh on behalf of the