BAIL SLIP --- The Appellant/Petitioner was ordered to be released on bail as per order dated 05.6.2003 in Crl.M.P.No.4917 of 2003 in Criminal Appeal No.826 of 2003 on the file of High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:31.03.2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Criminal Appeal No.826 of 2003 P.Meganathan ... Appellant/Accused Vs State of Tamil Nadu rep. By Inspector of Police, Vigilance and Anti Corruption Department, Chennai. ... Respondent/Complainant Criminal Appeal against the judgment dated 22.04.2003 in C.C.No.2 of 1999 on the file of III Additional Sessions Judge, Chennai. For Appellant : Mr.N.Jothi for Mr.T.Jaishankar For Respondent : Mr.R.Muniyappa Raj, Govt. Advocate (Crl. Side) J U D G M E N T Appellant is the sole accused in C.C.No.2 of 1999 on the file of III Additional Sessions Judge, Chennai. By judgment dated 22.04.2003, the learned Judge convicted the appellant under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for three months for the offence under Section 7 of the Act and to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for three months for the offence under Section 13 (2) r/w 13(1)(d) of the Act. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant has come forward with this appeal. 2.The case of the prosecution in brief is as follows: https://hcservices.ecourts.gov.in/hcservices/ (i)During the years 1994 and 1995, the appellant was working as Checking Inspector in the office of Assistant Commissioner, Civil Supplies and Consumer Protection Department in Perambur Zone. P.W.2 during the relevant period was working as Salesman at R.V.Nagar Fair Price Shop run by the said Department. He was in the rank of Junior Assistant. One Sundarrajan (P.W.9) was working as Additional Salesman. The said fair price shop was under the control of Perambur Regional Office. About 2000 family cards were attached to the said shop. During the year 1994, after due inspection, 72 family cards were cancelled. In discharging his official duty, P.W.2 had to draw essential commodities from the godown to supply the same as per the norms to the card holders. But instead of drawing the essential commodities as against the valid cards, it is alleged that P.W.2 had drawn essential commodities as against the cards which were cancelled also. This was found out during audit. The accused being the higher official, stated that he would take appropriate action against P.W.2. When P.W.2 requested the accused not to take any action, the accused demanded a sum of Rs.5,000/- for desisting from taking any action. P.W.2 pleaded with the accused to reduce the same. Finally, the accused got it reduced to Rs.2,000/-. The accused spoke to P.W.2 and wanted him to come to his office on 12.09.1995 before 1 p.m. with cash. But without going to the office of the accused, P.W.2 proceeded to the office of the Vigilance and Anti-corruption at 10.00 a.m. on 12.09.1995 and preferred a complaint Ex.P2. Based on the said complaint, P.W.10 registered a case in Crime No.RC/8/AC/MC.II/95 under Section 7 of Prevention of Corruption Act. Ex.P18 is the first information report. Then he got the services of P.W.3 and one Balasubramanian for being witnesses to the trap proceedings. Accordingly, P.W.3 and Balasubramanian came to the office of the Vigilance and Anti-corruption and in the presence of those two witnesses, P.W.2 had given a sum of Rs.2,000/- i.e. 20 currency notes of 100 rupees denomination for the purpose of trap. Phenolphthalein test was demonstrated to the witnesses, for which, proceedings were also drawn up. Then phenolphthalein powder was smeared on the currency notes. Appropriate mahazar was prepared and the currency notes were handed over to P.W.2. Thereafter, P.Ws.2, 3 and Balasubramanian were taken by P.W.10 to the office of the accused. Leaving P.Ws.2 and 3, P.W.10 remained outside the office. Before entering into the office, once again P.Ws.2 and 3 were given further instructions to make signal as soon as money was received by the accused. (ii)Accordingly, at about 12.20 p.m. P.Ws. 2 and 3 entered into the office of the accused. But the accused was not in his seat and he was standing somewhere in the office. There was a crowd of 50 general public in the office. P.W.2 went near the accused. On seeing him, the accused enquired him as to whether he had brought money, which he demanded earlier. P.W.2 answered in the affirmative. Then the accused asked who P.W.3 was. P.W.2 told him that P.W.3 was his relative. Then the accused took P.W.2 as well as P.W.3 along with him and went to the nearby tea shop. P.W.2 and the accused were sitting side by side whereas P.W.3 was sitting opposite to them in the tea shop. The https://hcservices.ecourts.gov.in/hcservices/ accused asked P.W.2 whether he had brought the amount. P.W.2 stated that he had brought Rs.2,000/-. Then he gave the same to the accused. On receiving the said amount, the accused put it in his pant pocket. Then P.W.2 came out of the tea shop and made signal to P.W.10. On receiving such signal, P.W.10, Balasubramanian and others rushed to the tea shop. The accused was still sitting in a corner of the tea shop. P.W.10 introduced P.W.3 and Balasubramanian to the accused. The accused was found perplexed. Thereafter, in two glass tumblers, Sodium Carbonate solution was prepared. The accused was asked to dip his fingers into the same. Both the solutions turned into pink colour, indicating phenolphthalein powder in the fingers of the accused in both his hands. Then the accused produced the currency notes from his pocket. When the numbers of the currency notes were verified with the mahazar prepared earlier, they tallied. Thereafter, phenolphthalein test was conducted for kerchief and the pant pocket of the accused also. They also proved positive. They were seized under a mahazar (Ex.P4). Then P.W.10 proceeded to the office of the accused and seized certain documents under Ex.P5 mahazar. At 2.30 p.m., P.W.10 arrested the accused and brought him to the police station. The house of the accused was also searched but nothing incriminating was found. (iii)Thereafter, investigation was taken up by P.W.12 at 14.09.1995. He examined P.Ws.2 to 9 and recorded their statements. He got sanction from P.W.1 to prosecute the accused as required under Section 19 of the Prevention of Corruption Act. In the meanwhile, he had forwarded the Sodium Carbonate solutions for chemical examination and according to the expert opinion, the solutions contained phenolphthalein powder. On completion of investigation, ultimately P.W.12 laid charge sheet on 25.03.1995 against the accused. 3.Based on the above materials, the trial Court framed charges under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. Since the accused denied the charges, he was put on trial. During trial, as many as 12 witnesses were examined and 22 documents were exhibited. When the incriminating evidences were put to the accused under Section 313 Cr.P.C., he denied the same. In his statement made under Section 313 Cr.P.C., he explained that P.W.2 was an L.I.C. Agent and he was in the habit of borrowing money from the accused. In such a way, P.W.2 was to pay a sum of Rs.2,000/- to the accused. He has further stated that P.W.2 assured to repay the same to him. According to him, it was only the said money which was paid by P.W.2 to him. Therefore, his case is that he never demanded any amount as illegal gratification and the money received by him during trap proceedings was only the loan amount which was due from P.W.2. He would further submit that the shop in which P.W.2 was working was not under the jurisdiction of the accused and therefore there would have been no occasion at all for the accused either to take action against P.W.2 or to make any demand for illegal gratification. On his side Ex.D1 showing the criminal case in which P.W.2 is an accused has been exhibited. https://hcservices.ecourts.gov.in/hcservices/ 4.Having considered all the above materials, the trial Court convicted the accused as narrated in the first paragraph of this judgment and has imposed punishment. It is the said judgment of conviction, which the appellant is challenging in this appeal. 5.I have heard the learned counsel appearing for the appellant and the learned Government Advocate (Crl. Side) for the State and also perused the records very carefully. 6.At the outset, I have to state that insofar as the validity of sanction order issued by P.W.1 and his competency, the learned counsel has not made any challenge before this Court and therefore, I do not propose to deal with the sanction order. 7.The foremost contention of the learned counsel for the appellant is that since the shop in question has been brought under the control of some other jurisdictional officer, there would not have been any occasion for the accused either to take any action against P.W.2 or to make any demand for illegal gratification by giving an assurance that he would not take any action against P.W.2. To substantiate this contention, learned counsel for the appellant would rely on the evidence of P.W.9, who is a fellow worker of P.W.2, wherein he has stated that the shop has been now brought under the control of some other jurisdictional officer over which the accused had no control at all. The learned Government Advocate (Crl. Side) is not in a position to dispute this factual aspect. In this regard, the learned counsel would rely on the judgment in Ram Samugh Mourya Vs. State of Madhya Pradesh (II (2002) CCR 169), wherein in a similar situation, Madhya Pradesh High Court has held that the alleged demand cannot be proved. In my considered opinion, when the very purpose for which the demand is said to have been made is no more available, the statement that the accused would have demanded illegal gratification from P.W.2 cannot be believed. 8.Coming to the oral evidence of P.W.2 also, he has stated only in a very vague manner that the accused demanded a sum of Rs.5,000/- for desisting from taking any action against him and thereafter he got it reduced to Rs.2,000/-. Here P.W.2 has not at all stated as to where, when and in whose presence, the said demand was made by the accused. In the absence of these details, the evidence of P.W.2 cannot be safely relied on to hold that the accused demanded illegal gratification of Rs.2,000/- from P.W.2. 9.The learned Government Advocate (Crl. Side) would submit that in Ex.P2 complaint, the details of the place, time and how the demand was made have been stated. In my considered opinion, the contents of Ex.P2 complaint cannot be treated as substantive evidence. The substantive evidence is only that of P.W.2. As I have already stated, P.W.2 in his chief examination has not at all stated all these details such as to where, when and how and in whose presence, such demand was made. Therefore, in the absence of these details and any corroborative evidence from any other source, in my considered opinion, it is not at all safe to hold that the accused made said https://hcservices.ecourts.gov.in/hcservices/ demand from P.W.2. 10.The learned counsel for the appellant would further submit that according to P.W.2, he prepared the complaint on 05.09.1995. but it was given to the police only on 12.09.1995. In this regard, the learned counsel would submit that there is no explanation from P.W.2 as to why the complaint was not preferred to the police even on 05.09.1995 itself though it was prepared on the same date. In this regard, the learned counsel would rely on the judgment of this Court in R.Rajendran Vs. D.S.P., Vigilance & Anti Corruption, Madras (1996- 2 LW (Crl.) 668) and another judgment of the Hon'ble Supreme Court in V.Venkata Subbarao Vs. State rep. By Inspector of Police, A.P., (2007 AIR SCW 9), wherein the Courts have held that in the absence of any explanation for the delay in preferring the complaint, the case of the prosecution needs to be doubted. In my considered opinion, in this case, for the delay of about 7 days, absolutely there is no explanation. It is not on the ground of this delay alone that I am inclined to interfere with the findings of the trial Court. This is yet another ground which creates some more doubt in the case of the prosecution. Thus, in my considered opinion, it is also vital. The non-explanation of the delay again creates lot of doubt in the case of the prosecution. As I have already stated since the evidence of P.W.2 cannot be safely relied on to hold that the accused demanded illegal gratification, the unexplained delay which I have narrated above again strengthens the said conclusion arrived at by me. 11.It is the admitted case that the accused received Rs.2,000/- from P.W.2 and kept it in his pocket. Under section 106 of the Indian Evidence Act, the burden is upon the accused to explain to the Court to its satisfaction, as to when, where and how the money was received by him from P.W.2. He has offered the explanation by way of statement, wherein he has stated that Rs.2,000/- was due to him as loan amount from P.W.2. This kind of explanation was not offered by him during the trap proceedings to the investigating officer/P.W.10. Therefore, it may even be argued that the explanation now offered only during trial of the case is an after thought. But in this case, I do not think so. The reason is the evidence of P.W.3. Admittedly, P.W.3 was closely moving with P.W.2 at the time of the trap proceedings. It is in the evidence of P.W.2 that P.W.2 and the accused were sitting side by side and just in front of them, P.W.3 was sitting. P.W.3 was admittedly closely watching even the conversation between P.W.2 and the accused. In the chief examination, P.W.3 would say that the accused enquired P.W.2 as to whether he had brought money. Thus, in the chief examination of P.W.3, there is no indication that the accused made any demand for illegal gratification. Even in the evidence of P.W.2 also, in chief examination, he has stated that the accused asked him whether he had brought the "amount ". There also, there is no indication that the accused meant the illegal gratification. Now comes the vital part of the evidence of P.W.3. In cross-examination, to a specific question regarding the conversation between the accused and P.W.2, he has tacitly stated that the accused enquired him as to whether he had brought the loan amount which was due from P.W.2. The words "loan https://hcservices.ecourts.gov.in/hcservices/ amount" need to be under scored. This destroys the entire case of the prosecution. But for the evidence of P.W.3, the mere explanation offered by the accused that it was the loan amount could have been even simply rejected stating that it is an afterthought. But here the explanation offered by the accused that whatever given by P.W.2 to him was the loan amount has been established by the evidence of P.W.3. Therefore, the prosecution's stand that what was received was an illegal gratification stands completely rebutted by the evidence of P.W.3. Curiously, P.W.3 has not been cross-examined with the permission of the Court by the prosecutor by treating him as hostile. This part of the evidence of P.W.3 wherein he has stated that the accused asked P.W.2 as to whether he had brought the loan amount has not been challenged by the prosecution. Thus the undisputed evidence of P.W.3 in this regard goes to clearly establish the defence of the accused and it completely rebuts the presumption against the accused. Thus the prosecution has failed to prove that the amount demanded by the accused and received by him at the time of trap proceedings is illegal gratification. 12.At this juncture, I have to further state that the term "remuneration" as defined under the Act would mean that something done in consideration. If only the accused had been in a position to do some favour to P.W.2 and for doing such favour, if the accused had received the amount, it will amount to remuneration and such a remuneration might have to be termed as "illegal gratification". But here, as I have already stated, the accused had already been transferred to Pulianthope and thus he had no control at all over P.W.2. Therefore, he would not have been in a position to do any favour to P.W.2 at all. Therefore, the question of remuneration from P.W.2 towards the accused is out of place. 13.Thus having a deep consideration of the entire materials available on record, I am of the view that the prosecution has failed to prove the case beyond reasonable doubt against the accused. The trial Court has failed to consider all the above aspects in their proper perspectives. Therefore, the judgment of the trial Court needs interference at the hands of this Court. 14.In the result, the Criminal Appeal is allowed, conviction and sentence imposed on the appellant/accused is set aside and he is acquitted. Fine amount, if any paid, shall be refunded to the appellant and the bail bond shall stand cancelled. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar mmi https://hcservices.ecourts.gov.in/hcservices/ To 1.The Inspector of Police, Vigilance and Anti Corruption Department, Chennai. 2.The III Additional Sessions Judge, Chennai. 3.-do- Thro The Principal Sessions Judge, Chennai. 4.The Public Prosecutor, High Court, Madras. Crl.A.No.826 of 2003 KA {CO) TP/27.4.2010. https://hcservices.ecourts.gov.in/hcservices/