Madras High Court
S.Tamilselvan vs State Through on 19 March, 2024
Crl.A(MD)No.522 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 20.12.2023
Pronounced On :19.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A.(MD)No.522 of 2017
S.Tamilselvan ... Appellant
vs.
State through
The Deputy Superintendent of Police,
Vigilance and Anti Corruption,
Sivagangai District.
(Cr.No.13 of 2005) ... Respondent
PRAYER: Criminal Appeal filed under Section 374 of Criminal
Procedure Code to call for the records relating to the judgment in
Spl.C.C.No.16 of 2014 dated 15.12.2017 on the file of the Special Court
for Trial of Cases under Prevention of Corruption Act, Sivagangai and to
set aside the same and allow this Criminal Appeal.
For Appellant :Mr.M.Subash Babu
Senior Counsel for Mr.C.Susi Kumar
For Respondent :Mr.T.Senthil Kumar
Additional Government Pleader
*****
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JUDGMENT
This Criminal Appeal has been filed as against conviction and
sentence imposed against the appellant in Spl.C.C.No.16 of 2014 dated
15.12.2017, by the Special Court for trial of cases under Prevention of
Corruption Act, Sivagangai.
2.The accused in Special C.C.No.16 of 2014, on the file learned
Judge, Special Court for Trial of Cases under Prevention of Corruption
Act, Sivagangai District filed this Criminal Appeal challenging the
following conviction and sentence imposed on him by the impugned
judgment dated 15.12.2017 in Special case No.16 of 2014, by the
learned Judge, Special Court for Trial of Cases under Prevention of
Corruption Act, Sivagangai.
Sl.No Offence Punishable Sentence of Imprisonment and
under Section fine
1 7 of PC Act 3 years Rigorous Imprisonment
and to pay a fine of Rs.1000/-, in
default, to undergo 6 months
simple imprisonment.
2 13(2)r/w13(1)(d) of PC 3 years Rigorous Imprisonment
Act and to pay a fine of Rs.1000/-, in
default, to undergo 6 months
simple imprisonment.
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3. Facts of the prosecution case:-
The appellant was working as a Bill Collector Special Village
Panchayat at Ilayangudi Village, Sivagangai District. PW-2 is the
resident of the said village. He is the owner of a house and there was an
enhancement in fixing the house tax. To reduce the same, he approached
the appellant. The appellant demanded Rs.500/-. PW-2, not inclined to
give the bribe amount, approached the respondent Vigilance department
and gave the complaint to PW-7 (Trap Laying Officer).
4. PW-7 after receipt of the complaint, made secret enquiry and
registered the case under Section 7 of the Prevention of Corruption Act
in Cr.No.13 of 2005 under Ex-P21. The complaint is Ex-P2. Thereafter,
PW-7 confirmed that PW-2 had brought the bribe amount and called
PW-3 and one Sabapathy from two government departments to act as
official witnesses. After their arrival, PW-3, Paneerselvam and
Sabapathy, the official witnesses, read over the FIR to PW-2 and PW-2
affirmed the contents of the FIR and PW-2 also stated that he had
brought the bribe amount. Thereafter, PW-7 demonstrated the
phenolphthalein test to PW-2 and the official witnesses. After
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demonstration of the test, P.W.7 smeared the phenolphthalein powder on
the 5 hundred rupee currency notes brought by PW-2. After smearing the
phenolphthalein powder they put the amount in the pocket of the PW-2
and P.W.7 specifically instructed PW-2 to give the bribe amount, if the
appellant demanded the same and he also directed him to give signal
upon receipt of the amount. P.W.7 further instructed P.W.3 to go along
with P.W.2 and listen in the conversation. The above proceeding was
recorded in the form of entrustment mahazar with signature of P.W.2,
P.W.3 etc.
5.Thereafter, PW-2, PW-3 and PW-7 along with the team visited
near the vicinity of the appellant office. Thereafter, they asked PW-2 and
PW-3 to go to the appellant’s office and hand over the money, if the
appellant made a demand. P.W.7 and his team were hiding at a distance
and PW-2 and PW-3 entered the office of the appellant and the appellant
asked PW-2 and PW-3 to wait in the bus stop. As per the direction, PW-2
and PW-3 waited at the bus stop and the appellant arrived at the bus stop
and reiterated the demand of bribe amount from the PW-2. PW-2
immediately handed over the money and the same was received by the
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appellant in the presence of P.W.3.
6. After receipt of the bribe amount, PW-2 gave signal to PW-7.
After noticing the signal, P.W.7 went to the office of the appellant and
P.W.7 introduced him and conducted the phenolphthalein test in the
hands of the appellant and the hand wash turned pink in colour.
Thereafter, PW-7 asked the appellant about the handling of the tainted
currency notes. The appellant confirmed the receipt of same and he took
a stand that he received the amount as arrears of tax. Thereafter, the
amount was recovered and the appellant was arrested and PW-7 prepared
the Recovery Mahazar in the presence of the PW-3 and another official
witness and the appellant was released on bail.
7. Thereafter, PW-7 entrusted all the documents to PW-8. PW-8
conducted the investigation and filed the final report before the Special
Court. The learned Special Judge took it on file in Spl.C.C.No.16 of
2014. Thereafter, the learned Trial Judge summoned the accused and
furnished the copies under Section 207 Cr.P.C. After service of the
copies, the learned Trial Judge framed the necessary charges and
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explained to the appellant. The appellant denied the charges and pleaded
not guilty and claimed to be tried. Hence, the learned Judge commenced
the trial. The prosecution to prove the charges, examined PW-1 to PW-8
and exhibited Ex-P1 to 29 and produced material objects MO-1 to
MO-6.
8. The learned Trial Judge after completion of the examination of
the prosecution witnesses questioned the appellant under Section 313 of
Cr.P.C., by putting incriminating materials available against him in the
prosecution evidence. The appellant denied them as false and gave
written explanation stating that the amount was attempted to be thrust
into the pocket of the appellant by PW-2 and the same fell on the ground
in the bus stop and PW-7 forced him to pick the money and conducted
the test and falsely arrested him. Further, he stated that he never made
any demand from PW-2. He also stated that he is not the competent
authority to fix the house tax. But, none was examined on the side of the
defence and no document was produced to prove his case.
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9. The learned Trial Judge, even though PW-2 turned hostile,
convicted the appellant on the basis of other available evidence as well
as the portion of the evidence of PW-2 and sentenced him to undergo
imprisonment stated supra by passing the impugned judgment.
Challenging the impugned judgment, the appellant preferred the above
appeal on the grounds stated in the memorandum of grounds of appeal.
10.Submission of the appellant’s counsel :-
Mr.M.Subash Babu, learned Senior Counsel appearing for the
appellant made the following submissions:
10.1. The learned Senior Counsel relied upon the judgment and
submitted that demand is to be proved in accordance with law, In this
case, PW-2 categorically deposed that the appellant never made a
demand of bribe amount. He never made the payment as a bribe amount.
In view of categorical statement of PW-2, the demand has not been
proved and hence, the conviction and sentence passed by the learned
Trial Judge without proving the demand under Sections 7, 13(2) and
13(1)(d) of Prevention of Corruption Act, is not legally maintainable as
held by the Hon’ble Constitution of Bench of Honourable Supreme
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Court in 2023 (1) MWN Crl. 323 in Neeraj Dutta vs State of Delhi.
Therefore, the appellant is entitled to acquittal.
10.2. The learned Senior Counsel further submitted that in this
case, PW-2 in chief examination stated that he approached the Vigilance
office only for the purpose of taking action against the officials for
fixing more house tax. PW-2 clearly stated that the appellant never
demanded any bribe and he never gave any amount as a bribe amount
and only the Vigilance officers drafted a complaint, as if the appellant
made a demand of bribe amount. Only on the basis of the dictation of
PW-7, he wrote the complaint with the allegation that the appellant made
a demand of bribe amount. In view of the above specific stand, the
prosecution never proved the demand, ie., never proved the pre and post-
trap demand. Hence, the learned Senior Counsel for the appellant
submitted that without proving of demand, conviction under Section
13(1)(d) of the Act is not made out.
10.3. The leaned Senior Counsel further submitted that the
evidence of PW-3 is untrustworthy and he is unable to furnish the
particulars of the type of shirt worn by the accused on the date of
occurrence. His answer that he is unable to remember whether he
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appended his signature in the Recovery Mahazar and Observation
Mahazar clearly shows that he was not present at the scene of
occurrence.
10.4. The learned Senior Counsel further submitted that there are
contradictions among the evidence of PW-2, PW-3 and PW-7. In view
of the contradictions, the evidence of PW-7 and PW-3 is not trustworthy
and the evidence has to be disbelieved. But the learned Trial Judge
without considering the above aspects, convicted the appellant.
10.5. In sum and substance, the learned Senior Counsel stated that
when the de-facto complainant turned hostile and he specifically stated
that the appellant never demanded any bribe amount and he has not
given any bribe amount to the appellant and also in view of the fact that
the appellant has no jurisdiction to re-fix the house tax, the conviction
and sentence posted by the learned Judge is liable to be set aside.
11. The learned Senior Counsel for the appellant relied on the
following judgments:
(1). CDJ 2014 SC 255 (B.Jeyaraj vs State of Andhra Pradesh)
(2). CDJ 2014 SC 922 (M.R.Purushotham vs State of Karnataka
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Crl.A(MD)No.522 of 2017(3). CDJ 2015 SC 722 (P.Sathyanarayana Murthy vs The
District Inspector of Police and another)
(4). CDJ 2015 SC 815 (N.Sunknna vs State of Andhra Pradesh)
(5). CDJ 2015 SC 1055 (Dashrath Singh Chauhan vs Central
Bureau of Investigation)
(6).CDJ 2019 MHC 3794 (K.P.Kolanthai vs State by Inspector of
Police)
(7). CDJ 2020 MHC 3794 (The State vs G.Kaleeswaran)
(8). Criminal Appeal No.704 of 2018 (Jai Prakash Tiwari vs
State of Madhya Pradesh)
12. Submission of the learned Additional Public Prosecutor :-
The learned Additional Public Prosecutor per contra, submitted
that the stand of PW-2 that he gave money as a house tax and the same
was accepted by the appellant and before giving the remaining amount,
the Vigilance officers arrested the accused, are not to be accepted. The
same was not proved by the appellant. In 313 Cr.P.C., explanation, the
accused stated that PW-2 is attempted to thrust the bribe amount in his
pocket and at the time, the amount fell on the ground in the bus stop and
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Crl.A(MD)No.522 of 2017PW-7 forced him to take the said money and conducted the
phenolphthalein test. The said contradictory stand itself shows that PW-2
is won over. The occurrence took place in the year 2005. Examination of
the witnesses took place in the year 2016. After 11 years, PW-2 turned
hostile. From the evidence of PW-2, it is clear that he was won over for
some other purpose. In the said circumstances, the other available
materials and portion of the evidence of PW-2 is to be considered with
other circumstances to prove the demand. PW-2 admitted the signature
in the complaint under Ex-P2 and entrustment mahazar and admitted the
signature in the FIR. When he admitted the preparation of above
exhibits, his evidence contrary to the written contents is not admissible.
13. It is settled principle that any written document can be
contradicted only by another written document. Apart from that, the case
of the appellant that the amount was thrust into his pocket goes against
the evidence of PW-2, PW-3 and PW-5. PW-3 clearly stated that he
reiterated demand on the date of occurrence P.W.2 also deposed that he
received the bribe amount. The said evidence corroborated with material
circumstances of the recovery of the incriminating materials. Apart from
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that, according to the learned Additional Public Prosecutor, if there is no
demand of bribe amount, there is no necessity to approach the vigilance
department. He approached the vigilance department and handed over
the amount of Rs.500/- and the entrustment mahazar was prepared and
P.W.2 and other officials witnesses signed the mahazar and the amount
was smeared with phenolphthalein powder and the same was handed
over to PW-2, who in turn gave it to the appellant.
14. From the above sequence of events, namely, tell tale
circumstances of the case clearly proved the demand on the part of the
appellant. As held by the Hon’ble Constitution Bench Judgement to
prove the demand, it is not necessary to prove the same only through
direct evidence. The demand may be proved through the circumstantial
evidence. In this case, apart from the circumstantial evidence, PW-3
clearly deposed that the appellant reiterated the demand on the date of
the occurrence. In Ex-P2 and Ex-P21, it is stated that the appellant made
a demand. In the said circumstances, the demand is proved through oral
evidence. Apart from that, the defence of the appellant that he received
the amount for the payment of the tax is not proved. Hence, the
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relationship between the appellant and the de-facto complainant is
admitted and the same was proved through the tax receipt, which has
been prepared but not furnished to PW-2. Hence, the defence is false and
also the case of the appellant that he never received the amount, as a
bribe, is not accepted. Hence, the learned Additional Public Prosecutor
seeks dismissal of the appeal.
15.Discussion on merits:-
This Court considered the rival submissions and also perused the
impugned order and the precedents relied upon by them.
15.1.Whether the Court below is correct in convicting the
appellant under Section 7 r/w 13(1)(d) of the Prevention of Corruption
Act, without properly considering the hostility of P.W.2 ?
16.Brief discussion on facts:-
The appellant herein was working as a Bill Collector in Special
Village Panchayat, Illayankudi. PW-2 is the owner of a house situated in
Illayankudi Village. PW-2’s father’s name is Poochi. He died 12 years
before the date of occurrence. His only brother executed the sale deed in
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Crl.A(MD)No.522 of 2017respect of his share in the year 2001. Thereafter, he paid tax for 2001 and
2002. In the year 2005, he approached the appellant and requested to
furnish the tax receipt. He demanded Rs.56/- per year instead of Rs.
17.60/-. The same was questioned by PW-2. PW-2 stated that this
enhancement from Rs.17.60/- to Rs.56/- is not legal and it is exhorbitant.
17. Thereafter, he insisted to reduce the same. Hence, the
appellant demanded Rs.500/- to reduce the same and not willing to give
the bribe amount, he approached the Vigilance office and made the
complaint under Ex-P2. After registration of the FIR, PW-7 ascertained
from the PW-2 that whether he had brought the money. PW-2 confirmed
this. Hence, he procured two official witnesses from Government office,
PW-3 and another official witness, Sabapathy. PW-3 and Sabapathy read
the contents of the FIR to PW-2. PW-2 affirmed the contents of the FIR.
Thereafter, he demonstrated the significance of the phenolphthalein test
through the Constable. After the demonstration, the amount of Rs.500/-
brought by the PW-2 intended to be given to the accused was smeared
with phenolphthalein powder by the Constable to demonstrate the
phenolphthalein test. After smearing of the phenolphthalein powder, the
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currency was put in the pocket of PW-2 with specific instruction to
approach the appellant and if he made the demand, he was directed to
give the money and give signal to PW-7. The Entrustment Mahazar was
prepared with the signature of the PW-2, PW-3 and PW-7 and Sabapathy.
Thereafter, PW-7 instructed PW-2 and PW-3 to approach the appellant
and instructed P.W.2 to give the amount, if the appellant reiterated
demand.
18. PW-7 instructed PW-3 to listen in the entire process taking
place between PW-2 and the appellant. Thereafter, PW-2 and PW-3 went
to the appellant’s office and the appellant asked them to wait in the bus
stop. When PW-2 and PW-3 were waiting in the bus stop, the appellant
reached the bus stop and demanded the money from PW-2. PW-2
immediately handed over the money to the appellant and the appellant
received the amount and put it in his pocket. Thereafter, PW-2 gave
signal. On seeing of the signal, PW-7 and his team approached the
appellant and conducted the test in the hands of the appellant, and the
hand wash turned pink in colour. On the basis of the positive result,
PW-7 enquired about the receipt of the bribe amount. The appellant
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immediately disclosed that he received the amount as tax arrears of Rs.
224/-. Immediately, PW-7 enquired whether he received the tax amount
prior to the date of occurrence. The appellant stated that he has not
received the tax amount prior to the occurrence date. With the said
particulars, the Recovery Mahazar was prepared under Ex-P7.
Thereafter, the appellant was arrested and released on bail. On the same
day, to ascertain the fact whether he received the amount as arrears of
tax, P.W.7 recovered tax receipt books under Ex-P22 to 26. The said
documents and the other documents did not corroborate the version of
the accused.
19. In the above said background, the learned Trial Judge
convicted the appellant and in spite of the fact that PW-2 was declared
hostile, the learned Trial Judge relied upon the evidence of PW-3 and
remaining circumstances to prove the demand made by the appellant.
The learned Trial Judge not only considered the evidence of PW-3, who
has deposed cogently about the demand and acceptance of bribe amount
and also relied upon the tell tale circumstances of the case, namely,
recovery of house tax receipts and the other documents relating to the
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tax in the custody of the appellant.
20.Proof of the demand through the appreciation of PW2
evidence:
The repeated contention of the appellant is that P.W.2 was declared
hostile and hence, the demand is not proved. Even in the case of the
complainant having turned hostile, the demand can be proved through
the other proved circumstances, namely, from the inferential deduction of
the complainant’s evidence, from the testimony of the other witnesses
and the circumstantial evidence and the same is fortified by the
following portion of the Hon’ble Constitution Bench Judgment in the
case of Neeraj Dutta v. State (NCT of Delhi), reported in (2023) 4 SCC
731 at page 777
88.6. (f) In the event the complainant turns
“hostile”, or has died or is unavailable to let in his
evidence during trial, demand of illegal
gratification can be proved by letting in the
evidence of any other witness who can again let in
evidence, either orally or by documentary evidence
or the prosecution can prove the case by
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Crl.A(MD)No.522 of 2017nor does it result in an order of acquittal of the
accused public servant.
90. Accordingly, the question referred for
consideration of this Constitution Bench is
answered as under:
In the absence of evidence of
the complainant (direct/primary, oral/documentary
evidence) it is permissible to draw an inferential
deduction of culpability/guilt of a public servant
under Section 7 and Section 13(1)(d) read with
Section 13(2) of the Act based on other
evidence adduced by the prosecution.
87. Therefore, this Court cautioned that even if a
witness is treated as “hostile” and is cross-
examined, his evidence cannot be written off
altogether but must be considered with due care
and circumspection and that part of the testimony
which is creditworthy must be considered and acted
upon. It is for the Judge as a matter of prudence to
consider the extent of evidence which is
creditworthy for the purpose of proof of the case. In
other words, the fact that a witness has been
declared “hostile” does not result in an automatic
rejection of his evidence. Even, the evidence of a
“hostile witness” if it finds corroboration from the
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facts of the case may be taken into account while
judging the guilt of the accused. Thus, there is no
legal bar to raise a conviction upon a “hostile
witness” testimony if corroborated by other reliable
evidence.”
Sat Paul v. Delhi Admn., (1976) 1 SCC 727 at page 745
“52. From the above conspectus, it emerges clear that
even in a criminal prosecution when a witness is
cross-examined and contradicted with the leave of the
court, by the party calling him, his evidence cannot,
as a matter of law, be treated as washed off the record
altogether. It is for the Judge of fact to consider in
each case whether as a result of such cross-
examination and contradiction, the witness stands
thoroughly discredited or can still be believed in
regard to a part of his testimony. If the Judge finds
that in the process, the credit of the witness has not
been completely shaken, he may, after reading and
considering the evidence of the witness, as a whole,
with due caution and care, accept, in the light of the
other evidence on the record, that part of his
testimony which he finds to be creditworthy and act
upon it. If in a given case, the whole of the testimony
of the witness is impugned, and in the process, the
witness stands squarely and totally discredited, the
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Judge should, as a matter of prudence, discard his
evidence in toto.”
20.1. From conjoint reading of the paragraph No.52 of the “sat
paul” case and Paragraph No.87 of the “Neeraj Dutta” case, the
following principles are to be followed to appreciate the evidence of
prosecution witnesses examined and contradicted by the prosecution
under Section 154 of the Indian Evidence Act, with the leave of Court:
(i)To read the evidence of witnesses as a whole with due care and
caution and circumspection.
(ii)If the credit of the witness has not been completely shaken, the
portion of the deposition to be considered along with other available
evidence.
(iii)If the credit of the witness is subjected to any receipt of other
corrupt inducement to give his evidence as stated in the Section 155 (2)
of the Indian Evidence Act, his evidence can not be taken against the
prosecution. There are cases where the witness admitted his signature in
the complaint and disowned the contents of the complaint or admitted
the contents and signature of the complaint but taken a stand that he
made it under the influence. The Court has to consider the complaint in
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Crl.A(MD)No.522 of 2017consonance with the other prosecution evidence.
(iv)If the witness deposed in chief examination admitting the
entire transaction and disowned during the course of cross examination,
the deposition made in the chief examination is to be taken.
(v)If the witness deposed in the chief examination partly
disowning his case stated in the complaint, the Court is duty bound to
see his credit worthiness by subjecting his deposition with relevant
circumstances whether he got influenced to any corrupt inducement to
give false evidence. In that event, his evidence cannot be taken against
the prosecution.
20.2. In this case, PW2 has approached the Vigilance office and
gave complaint with averments that the appellant demanded Rs.500/- to
re-fix the house tax with the consultation of the Executive Officer. But in
his evidence before the court, he stated that he approached the Vigilance
office only to take action against the imposition of the higher tax, but
PW-7 insisted to give the complaint, as if the appellant demanded money
to reduce the tax. PW2 never denied the factum of meeting of appellant
in his office. PW2 further never denied he met PW7 (trap laying officer
of the vigilance department). He also admitted the presence of PW3
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Crl.A(MD)No.522 of 2017
independent official witness in the vigilance office. He further admitted
that PW3 read over the contents of the FIR to him and he admitted his
signature in the complaint and the FIR. He also admitted the preparation
of the entrustment mahazar Ex.P6. He also accepted the signature in the
entrustment mahazar Ex.P6. In the said circumstances, he only changed
his version relating to the demand of Rs.500/- and he deposed that the
amount was handed over to the appellant as tax arrears which was
contrary to the version in the complaint and the said contrary versions is
as follows :-
PW2 evidence before the court PW2 statement in
the complaint
tPl;Ltupg; gzk; &.224 nrYj;jNtz;Lk; vd;W Nfl;lJ mjw;F gpy;
mjpfkhf ,Ue;jjhy; mjw;fhfj; jhd; yQ;r xopg;G Jiwapy; Gfhh; fnyf;lh; thp
nfhLf;f KbT nra;Njd;. yQ;r xopg;G mYtyfj;jpYk; vjphp Fiwj;J &.56
yQ;rkhff; Nfl;lhh; vd;W nrhy;ytpy;iy. tPl;L thp gzk; tPjk; NghLtjhf
$Ljyhff; Nfl;fpwhh; vd;W jhd; nrhd;Ndd; tof;Fg; NghlKbahJ ,Ue;jhy; jdf;F
vd;Wk; yQ;rg; gzk; Nfl;ljhfr; nrhd;dhy; jhd; tof;Fg; & 500 ju
NghlKbAk; vd;W nrhd;dh;fs;. Ntz;Lk; vd;Wk;
nrhd;dhh;. gzk;
ehd; nfhLj;jg; Gfhhpy; gpy; fnyf;lj; gzk; &.500 nfhLj;jhy; jhd; &.500 jutpy;iy
tp.X tplk; nrhy;yp thpiaf; Fiwj;Jg;NghlKbAk; vd;W nrhy;yp vd;why; tupia
ehis nts;spf;fpoik khiy vd;id Nehpy; ghh;j;J &.500 115f;F
nfhLf;fNtz;Lk; vd;Wk; mg;NghJ jhd; urPJ Nghl;Lj;jUtjhf NkyhfTk;
nrhy;ypAs;Nsd; vd;why; Qhgfkpy;iy. ehd; nfhLj;j Gfhhpy;vdf;F NghlKbAk;
yQ;rk; nfhLf;f tpUg;gkpy;iy vd;W $wpapUf;fpNwNdh vd;W vd;W nrhd;dhh;.
Qhgfkpy;iy. vd;dplk; fhl;lg;gLtJ vd;dhy; vjphp jkpo;nry;tdplk;
nfhLf;fg;gl;ljhFk;. mJ m.rh.M.3 Mfk;. m.rh.M.3 kDNthL vd;
jk;gpapd; gq;if vdf;F vOjpf; nfhLj;j fpiuag;gj;jpuj;jpd;
Gif;ggl efiy ,izj;Js;Nsd;.
Therefore, in the said circumstances, as held by the Hon’ble
Constitution Bench in “Neeraj Dutta Case” it is duty of this court to
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Crl.A(MD)No.522 of 2017consider whether the testimony of PW2 that the appellant never made a
demand of bribe to reduce the house tax and he paid the amount as tax
arrear is trustworthy or not?.
20.3. The version of PW2 that he paid the amount as tax arrear is
false. The investigating agency collected relevant documents relating to
the tax recovery from the appellant. There was no entry relating to the
tax arrears. Further, there was no preparation of the receipt for the
payment of the tax arrears. PW2 in order to help the appellant took the
stand that he paid it as tax arrears. But the appellant took the stand that
he never received the amount. Explanation of the appellant during the
313 of Cr.P.C questioning is that the amount was thrust into his pocket
which is contrary to the stand taken at the time of recovery of mahazar.
In view of the above discussion it is clear that the appellant changed his
version in order to help the accused. In similar circumstance, the Hon’ble
Three Member Bench of the Supreme Court in the case of Dahyabhai
Chhaganbhai Thakkar v. State of Gujarat, reported in AIR 1964 SC
1563 has held that if the witness made the statement to help the appellant
by changing his version made before the investigation officer, the said
contradictory version of the witness need not be accepted and the
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relevant paragraph is extracted as follows :-
13. Now we come to the evidence of what
happened on the night of the incident. Nobody except the
accused knows what happened in the bedroom. PWs 2 to
7 deposed that on the 10th April, 1959, corresponding to
Chaitra Sudi 1, between 3 and 4 a.m. they heard shouts
of the deceased Kalavati to the effect that she was being
killed; that they all went to the room but found it locked
from inside; that when the accused was asked to open
the door, he said that he would open it only after the
Mukhi (PW 1) was called; that after the Mukhi came
there, the accused opened the door and came out of the
room with a blood-stained knife in his hand; that the
accused began talking irrelevantly and was speaking
“why, you killed my mother?”“why, you burnt my
father’s house?”;that afterwards the accused sat down
and threw dust and mud at the persons gathered there;
and that he was also laughing without any cause. In
short, all the witnesses in one voice suggested that the
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accused was under a hallucination that the deceased
had murdered his mother and burnt his father’s house
and, therefore, he killed her in that state of mind without
knowing what he was doing. But none of these witnesses
had described the condition of the accused immediately
when he came out of the room, which they did so
graphically in the sessions court, at the time when they
made statements before the police. In effect they stated
before the police that the accused came out of the room
with a blood-stained knife in his hand and admitted that
he had murdered his wife; but in the witness-box they
said that when the accused came out of the room he was
behaving like a mad man and giving imaginary reasons
for killing his wife. The statements made in the
depositions are really inconsistent with the earlier
statements made before the police and they are,
therefore, contradictions within the meaning of Section
162 of the Code of Criminal Procedure. We cannot place
any reliance on the evidence of these witnesses : it is an
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obvious development to help the accused.
Emphasis supplied
20.4. Therefore, the contrary deposition made by the appellant
relating to the handing over the money as tax arrears and not a bribe
amount is against the records and hence the said portion of the evidence
of PW2 is unacceptable. Except that portion of the evidence, remaining
evidence corroborate with the prosecution case and therefore now he
cannot be allowed to show his volte face approach to say that the
appellant never demanded bribe and he never handed over the currency
as a bribe amount.
20.5. The said contrary version is also not acceptable on the score
that PW-2 was won over during the passage of time ie., the occurrence
took place in the year 2005 and his examination was conducted in the
year 2010. In the year 2010, he should have been won over by the
appellant. The said version is contrary to Ex.P.6.
20.6.Demand of proof through the tell-tale circumstances :-
Apart from that the Hon’ble Supreme Court in the case of Kishan
Chand Mangal v. State of Rajasthan, (1982) 3 SCC 466 at page 471
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Crl.A(MD)No.522 of 2017also has held in the following paragraphs that the demand can be
proved through the tell-tale circumstances:
11.It was next contended that once Rajendra Dutt
is not available for evidence there is no evidence
as to the demand of bribe on November 20, 1974,
and it is not open to the court to spell out the
demand from the contents of Ex. P-12. It is
undoubtedly true that Rajendra Dutt was dead
before the commencement of trial. It is equally true
that the FIR lodged by him on November 22, 1974,
cannot be used as substantive evidence nor the
contents of the report can be said to furnish
testimony against the appellant. Such an FIR
would not be covered by any of the clauses of
Sections 32 and 33 of the Evidence Act and would
not be admissible as substantive evidence. The
question still remains whether there is any
evidence of demand of bribe on November 20,
1974, in this case. A fact may be proved either by
direct testimony or by circumstantial evidence. If
appellant did not visit the factory of Rajendra Dutt
on November 20, 1974, and made no overtures
demanding the bribe, on what rational hypothesis
can one explain the visit of Rajendra Dutt to the
office of Dy SP, ACD on November 22, 1974; hisPage 27/60
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Crl.A(MD)No.522 of 2017producing currency notes worth Rs 150; a superior
officer like the Dy SP, ACD, making all
arrangements for the trap and the raiding party
going to the house of the accused on November 22,
1974. The visit of Rajendra Dutt soon followed by
the raiding party at the house of the accused on
November 22, 1974, is admitted. Coupled with this,
the fact that Keshar Mal, PW 2 in his evidence
stated that after Rajendra Dutt entered the room in
which appellant was sitting, Rajendra Dutt on
entering the room asked the appellant, ‘Hullo, how
do you do?’ He further stated that the appellant
replied, ‘I am sick and suffering from cold’. He
deposed that thereafter the appellant asked, ‘Have
you brought the money’, whereupon complainant
Rajendra Dutt replied, ‘Yes, I have brought the
money’. He further stated that thereafter Rajendra
Dutt took out the amount of currency notes from
his diary and gave the same to the appellant who
took the amount and kept it under the pillow on the
cot. If there was no prior demand the subsequent
events remain unexplained as also the demand as
deposed to by PW 2 Keshar Mal. But Mr Anthony
urged that this part of the evidence of Keshar Mal
cannot be accepted because he has not stated thisPage 28/60
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Crl.A(MD)No.522 of 2017fact in his statement recorded in the course of
investigation. Simultaneously it was pointed out
that the other motbir Ram Babu is totally silent in
his evidence about this conversation between the
appellant and the complainant. Undoubtedly, the
omission in the police statement of Keshar Mal and
non-mentioning all these facts by the co-motbir
would raise some doubt in the mind of the court
about this conversation but as pointed out earlier
there are tell-tale circumstances which do indicate
that there must have been a demand and, therefore,
these circumstances as hereinbefore set out will
render support to the statement of Keshar Mal that
the demand at the time of visit of Rajendra Dutt
must be pursuant to earlier demand by the
appellant. Therefore, it is not proper to say that
there is no evidence of the demand of bribe as on
November 20, 1974.
20.7. In this case also PW2 approached the vigilance office and
gave the complaint Ex.P2 with specific allegation against the appellant
that he demanded bribe amount to reduce the tax after consultation with
the executive officer. The same was received by PW7 and reduced into
FIR. Thereafter PW3 and other official witnesses were called to organise
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Crl.A(MD)No.522 of 2017trap. PW3 specifically deposed that the contents of the said FIR was read
over to PW2 and PW2 also not denied the said fact. The PW2 also
handed over the bribe amount to entrap the appellant. PW2 and PW3
also went to the office of the appellant and he also admitted the handing
over the amount. He also admitted that after receipt of the amount by the
appellant, he gave signal to PW7 and informed about the receipt of the
amount by the appellant. PW7 also recovered material documents from
the appellant. Both the contemporaneous documents namely entrustment
mahazar and recovery mahazar contain the fact of demand of bribe
amount. The same was proved through the evidence of PW3. It is not the
case of PW-2 that he never approached the Vigilance officer and he did
not give any complaint to the Vigilance officer. It is the admitted case of
the PW-2 that he approached the Vigilance office to make a complaint.
He admitted the signature in entrustment mahazar Ex.P6. Now he
cannot allow to show his volte face approach to say that the appellant
never demanded bribe and he never handed over the currency as a bribe
amount. Therefore the prosecution clearly established the demand
through the above tell – tale circumstances as held in a similar case
before the supreme court in the “Kishan Chand Mangal case” .
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21. Proof of demand through the testimony of trap witnesses:-
The learned Senior Counsel submitted that once PW-2 stated that
he never gave money as a bribe amount and the appellant never made a
demand, the case of the prosecution should not have been accepted by
the trial Court. ie., According to the learned Senior Counsel, when PW-2
turned hostile, the case should fall to the ground. The said proposition
by the learned Senior Counsel is a strange one. In the judgment of
Honourable Constitution Bench reported in 2023 4 SCC 739, it is
observed that the prosecution can establish the demand by other
evidence also. The prosecution case does not stand on the helping
testimony of PW-2, ie., the de-facto complainant. In this case, P.W.3,
independent official witness without any motive towards the appellant
deposed about the demand of the bribe amount in a cogent manner viz.,
jkpo;nry;td; ehd; Nfl;lgzk; 500 nfhz;L te;J ,Uf;fpwhah
vd;W Nfl;lhh; and he was subjected to detailed cross examination but
no circumstances were elicited to disbelieve his evidence.
21.1. It is settled principle that conviction can be passed on the
basis of the evidence of official witness. The Hon’ble Constitution Bench
of the Supreme Court in AIR 1958 SC 500 in the case of State of Bihar
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Crl.A(MD)No.522 of 2017Vs. Basavan Singh has held that court may convict the accused under
Section 7 and 13(1)(d) of the Prevention of Corruption Act 1988, by
interpreting the corresponding provision of the old Act and further held
that even on the basis of the evidence of the official witness without any
corroboration conviction can be made if the court is satisfied from the
facts and circumstances of the case that the witness is a witness of truth.
The same was subsequently followed by the three judge bench of the
Hon’ble Supreme Court reported in AIR 1968 SC 1323 and subsequent
decision. The relevant portion of the judgments are as follows:
State of Bihar v. Basawan Singh, reported in 1958 SCC OnLine SC 64 :
“10. …..It is wrong, however, to deduce from
that decision any universal or inflexible Rule that
the evidence of the witnesses of the raiding party
must be discarded, unless independent
corroboration is available.
Bhanuprasad Hariprasad Dave v. State of
Gujarat, AIR 1968 SC 1323 :
“7…. It cannot be said — and it was not said —
that they were accomplices. Therefore, the law does
not require that their evidence should be
corroborated before being accepted as sufficient to
found a conviction.
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Crl.A(MD)No.522 of 2017….. It is now well settled by a series of
decisions of this Court that while in the case of
evidence of an accomplice, no conviction can be
based on his evidence unless it is corroborated in
material particulars but as regards the evidence of a
partisan witness it is open to a court to convict an
accused person solely on the basis of that evidence,
if it is satisfied that that evidence is reliable. But it
may in appropriate case look for corroboration. In
the instant case, the trial court and the High Court
have fully accepted the evidence of Ramanlal, the
DySP, Erulker and Santramji. That being so, it was
open to them to convict the appellants solely on the
basis of their evidence. That apart, their evidence is
substantially corroborated by the evidence of
Dahyabhai, Sanghvi and Sendhalal. In the case of
partisan witnesses, the corroboration that may be
looked for is corroboration in a general way and not
material corroboration as in the case of the
evidence of accomplices.”Prakash Chand v. State (Delhi Admn.),
(1979) 3 SCC 90 at page 93
“6. … Where the circumstances justify it, a court
may refuse to act upon the uncorroborated testimony ofPage 33/60
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Crl.A(MD)No.522 of 2017a trap witness. On the other hand a court may well be
justified in acting upon the uncorroborated testimony of
a trap witness, if the court is satisfied from the facts and
circumstances of the case that the witness is a witness of
truth.
21.2. Therefore, the demand was proved through the evidence of
PW3, apart from the tell-tale circumstances as discussed above.
Therefore, the prosecution clearly proved the demand as required under
law.
22. Discussion on the proof of acceptance :-
This Court appreciated the evidence let in by the prosecution and
given the finding that the demand was proved as stated in the earlier
paragraphs. For proving the acceptance, the evidence of PW-2 is
corroborated by PW-3. It is the categorical evidence of PW-2 that
amount was received by the appellant. The same was corroborated by
PW-3. The appellant has stated immediately that he has accepted the
receipt of money as a tax liablility in the Recovery Mahazar Ex.P7. The
appellant and his Counsel never questioned the preparation and contents
of the Recovery Mahazar prepared by PW-7 and in the said
circumstances, the acceptance is proved through oral evidence, namely,
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Crl.A(MD)No.522 of 2017of PW-2, PW-3 and documentary evidence Ex-P7 and also through the
positive result of the phenolphthalein test.
22.1. As per the following contents of the Rule 46 of manual of
the Directorate of Vigilance and Anti-Corruption, Tamil Nadu, when the
colour changes in the hands of the appellant and shirt pocket of the
appellant, the same would be a corroborative piece of evidence to
establish the acceptance of the tainted currency by the accused officer:-
“46. Phenolphthalein Test
(1) Before recovering the tainted money or
other articles in the course of trap proceedings, what
is known as “Phenolphthalein Test” should invariably
be conducted the fingers of both hands of the Accused
Officer and on other items such as his pant/shirt
pocket, dhoti, etc., with which the notes/articles are
known to have come into contact. It will be a
corroborative piece of evidence to establish the
acceptance of tainted money by the Accused Officer.
22.2. Therefore, this court holds that the prosecution clearly
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proved the acceptance of the bribe amount.
22.3. The presumption under section 20 of the prevention of
corruption Act:-
20.Presumption where public servant
accepts gratification other than legal
remuneration:-
– 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, without
consideration or for a consideration which he
knows to be in adequate.
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23.From the above discussion and the evidence of PW3, it is clear
that the appellant accepted the illegal gratification. Once it is proved that
the appellant received the amount as illegal gratification, then the
presumption under Section 20 of the Act will come into play. The
Honourable constitution bench of the judgments of the supreme court
reported in AIR 1960 SC 548 and AIR 1964 SC 575 and Hon’ble three
member bench Judgment of the Supreme Court in 1974 4 SCC 560 and
the number of the Hon’ble two member Benches of the Honourable
Supreme Court from 1982 3 SC 466 etc., have held that once the
prosecution proved that appellant received the illegal gratification, it is
the duty of the appellant to dispel the same through legal evidence. In
this case, the basic contention of the appellant is that he never received
the amount, but the PW-2 categorically stated that he handed over the
amount to the appellant and the same was corroborated by PW3
independent official witness who has no motive against the appellant.
The appellant at the time of Recovery Mahazar and immediately after
recovery of bribe amount stated that he received the amount as tax
arrears. The investigating officer collected the material from the
department and found that there was no such records. Further,
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Crl.A(MD)No.522 of 2017
he has not given any explanation regarding the preparation and contents
of the recovery mahazar/Ex.P7. He took the contrary stand that he never
demanded money and the same fell on the ground in the bus stop and
P.W.7 forced him to pick up. The said stand of the appellant is not only
false and also against the records. In the said circumstances, the demand
and acceptance is clearly proved against the appellant.
24. Sanction
24.1.The learned counsel for the appellant has stated that the
sanctioning authority has not applied his mind and granted sanction in
mechanical manner. According to the learned counsel for the appellant,
sanction is a sacrosanct act and the sanctioning authority is duty-bound
to apply his mind independently and grant the sanction.
24.2. Before Further elaboration on submission of Appellant
regarding non application mind while according sanction, this Court has
a duty to find out the meaning of “sanction” and precedents relating to
the accord of sanction. The word ‘sanction’ has not been defined in the
Code of Criminal Procedure or in Prevention of Corruption Act.
Page 38/60 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.522 of 2017 Dictionary Meaning Webster's Third New Internal Explicit permission or recognition Dictionary by one in authority that gives validity to the act of another person or body; something that authorizes, confirms, or countenances. The New Lexicon Webster's Explicit permission given by some Dictionary one in authority. The Concise Oxford Dictionary. Encouragement given to an action etc., by custom or tradition; express permission, confirmation or ratification of a law etc; authorize, countenance, or agree to (an action etc.) Stroud's Judicial Dictionary Sanction not only means prior approval; generally it also means ratification. Words and Phrases— The verb ‘sanction’ has a distinct shade of meaning from ‘authorize’ and means to assent, concur, confirm or ratify. The word conveys the idea of sacredness or of authority.
The Law Lexicon by Ramanath Prior approval or ratification.
Iyer
Rameshwar Bhartia Vs. State of Sanction is in the nature of
Assam reported in 1952 2 SCC permission.
203, the Hon’ble Supreme Court
has stated that
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Crl.A(MD)No.522 of 2017
24.3.In Om Prakash v. State of U.P., 2001 SCC OnLine All 818
at page 1248. Hon’ble Mr.Justice G.P.Mathur (as he then was) made
detailed discussion on this aspect and finally has held that
6….. The word ‘sanction’ has been used as a “verb”
and therefore it will mean to assent, to concur or
approval.
24.4. Therefore, in the considerable opinion of this Court, sanction
is the independent act of sanctioning authority with due application of
mind over the material forwarded by the investigating agency to
prosecute the accused before the Court of law under the penal provision
constituting the offence.
24.5.The Hon’ble Supreme Court in State of Maharashtra v.
Mahesh G. Jain, (2013) 8 SCC 119 after considering the earlier various
decisions of the Hon’ble Supreme Court reported in AIR 1958 SC 124,
AIR 1979 SC 677, 1995 6 SCC 225, 2005 4 SCC 81, 2006 12 SCC 749,
2007 11 SCC 273, 2011 1 SCC 491, has expounded the following
detailed principles of law governing the validity of sanction:
“14.1. It is incumbent on the prosecution to prove
that the valid sanction has been granted by thePage 40/60
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Crl.A(MD)No.522 of 2017sanctioning authority after being satisfied that a case
for sanction has been made out.
14.2. The sanction order may expressly show that
the sanctioning authority has perused the material
placed before it and, after consideration of the
circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the
evidence that the material was placed before the
sanctioning authority and its satisfaction was arrived at
upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative
function and the sanctioning authority is required to
prima facie reach the satisfaction that relevant facts
would constitute the offence.
14.5. The adequacy of material placed before the
sanctioning authority cannot be gone into by the court as
it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all
the materials placed before it and some of them have not
been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as
it is intended to provide a safeguard to a public
servant against frivolous and vexatious litigants, but
simultaneously an order of sanction should not be
construed in a pedantic manner and there should notPage 41/60
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Crl.A(MD)No.522 of 2017be a hypertechnical approach to test its validity.”
25. In this case, P.W.1 has accorded sanction for the prosecution of
appellant. Ex.P.1 is the sanctioning order and the operative portion of
the sanction order is as follows:
“ Page No.92 and 92) Whereas, I Thiru
M.A.Siddiquee, I.A.S. District Collector of Sivaganga
District, being the authority to remove
Thiru.S.Tamilselvan, formerly Bill Collector of
Erstwhile Special VillagePanchayat (Now Town
Panchayat), Ilayangudi, after fully and carefully
examining the materials placed before me such as the
copy of F.I.R in V & AC Unit, Sivaganga in Cr.No.13
of 2005, mahazer, Statement of witness, statement of
Thiru.S.Tamilselvan, rough sketch of place of
occurrence house search list the analysis report and
the documents recovered during the investigation of
the above said case in Cr.No.13 of 2005 etc., and
after duly considering the facts and circumstance of
this case on application of my mind, I am satisfied
that Thiru.S.Tamilselvan should be prosecuted before
the Court of law for the earlier said grave offences in
the interest of Justice.
Now, therefore, I do hearby accord sanction as
required under Section 19(1)(c) of the Prevention of
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Crl.A(MD)No.522 of 2017
Corruption Act, 1988 for prosecuting
Thiru.S.Tamilselvan, formerly Bill Collector of
Erstwhile Special Village Panchayat (Now Town
Panchayat), Ilayangudi, so as to enable the Court
competent jurisdiction to take cognizance of the
offence punishable under Section 7 and 13(1)(d) r/w
13(2) of Prevention of Corruption Act, 1988 against
the said Thiru.S.T.Tamilselvan and to proceed with
the trial in accordance with the relevant provision of
law.
25.1.A bare perusal of Ex.P1, would show that P.W.1 has applied
his mind regarding the demand of Rs.500/- by the appellant and
acceptance of the same. P.W.1 sanctioning authority deposed before the
Court, that he granted sanction after applying his mind and the material
portion of the evidence is as follows:
...midj;J Mtzq;fisAk; guprPyid
nra;Njd;...
ehd; tof;fpd; rk;ke;jg;gl;l ghh;it kf[h;
tiuglk; jlamwptpay; Ma;T $lj;jpy;
tug;ngw;w mwpf;if kw;Wk; cs;s Mtzq;fis
ghprPyid nra;J jkpo;nry;td; kPJ tof;F
njhlu Kfhe;jpuk; cs;sJ vd;gjhy;
vd;Dilas Neh;Kf cjtpahsh; (tsh;r;rp)
mth;fis tutioj;J vd;Dila Nfhg;gpy;
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Crl.A(MD)No.522 of 2017
cs;s tptuq;fis vLj;J nrhy;yp buhg;l; Mh;lh;
Nghlr;nrhy;yp nrhd;Ndd;. gp.uh[NtY vd;w
eghplk; ,Ue;Jrl;ltpNuhjkhf 500 tPl;L thp
Fiwg;gjhf ngw;Ws;shh; vd;W Fw;wr;rhl;Lf;F
Nghjpa Kfhe;jpuq;fs; ,Ue;jJ. yQ;r xopg;G
jLg;G rl;lk; gphpT 1 19 1 rp d; fPo; vd;Dila
Kd; mDkjp mspj;Njd;. Njitg;gLtjhy;
mDkjp mspj;Njd;. vjphp kPJ r gp 7 13 1
c , 13 2 d;gb khtl;l Ml;rpah; eltbf;if
vz;.b2 4095 2005 Njjp 11.12.2006 d;gb cj;juT
gpwg;gpj;Njd;.
26.From the above, this Court finds that the sanction order itself is
eloquent about the fact that the accused had demanded and accepted the
bribe amount. The sanctioning authority also came into the witness box
and he deposed that he accorded sanction for prosecution after proper
application of mind. Therefore, this Court finds that the sanctioning
authority has applied his mind to the fact that the appellant made a
demand and accepted illegal gratification.
27. Further, Section 19 of the Prevention of Corruption Act 1988
and Section 465 of Cr.P.C., specifically state that the conviction cannot
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Crl.A(MD)No.522 of 2017
be set aside on the ground that there was an error in granting sanction
unless accused established failure of justice. For better appreciation, the
relevant portion of the Sections are extracted hereunder:
Section 19 of the Under Section 465 of Cr.P.C.
Prevention of Corruption
act 1988
19.3…(3) Notwithstanding 465. Finding or sentence when reversible
anything contained in the Code of by reason of error, omission or irregularity.—
Criminal Procedure, 1973 (2 of (1) Subject to the provisions hereinbefore
1974),— contained, no finding, sentence or order passed
(a) no finding, sentence or order by a court of competent jurisdiction shall be
passed by a Special Judge shall reversed or altered by a court of appeal,
be reversed or altered by a court confirmation or revision on account of any
in appeal, confirmation or error, omission or irregularity in the complaint,
revision on the ground of the summons, warrant, proclamation, order,
absence of, or any error, omission judgment or other proceedings before or during
or irregularity in, the sanction trial or in any inquiry or other proceedings
required under sub-section (1), under this Code, or any error, or irregularity in
unless in the opinion of that any sanction for the prosecution, unless in the
court, a failure of justice has in opinion of that court, a failure of justice has in
fact been occasioned thereby; fact been occasioned thereby.
27.1.The Hon’ble Supreme Court has held as follows in State v. T.
Venkatesh Murthy, (2004) 7 SCC 763 at page 765,
14. In the instant case neither the trial court
nor the High Court appear to have kept in view the
requirements of sub-section (3) relating to question
regarding “failure of justice”. Merely because there
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is any omission, error or irregularity in the matter of
according sanction, that does not affect the validity of
the proceeding unless the court records the
satisfaction that such error, omission or irregularity
has resulted in failure of justice.
27.2.In State of M.P. v. Virender Kumar Tripathi, (2009) 15 SCC
533 at page 536
9. Further, the High Court has failed to consider the
effect of Section 19(3) of the Act. The said provision
makes it clear that no finding, sentence or order
passed by a Special Judge shall be reversed or altered
by a court of appeal on the ground of absence of/or
any error, omission or irregularity in sanction required
under sub-section (1) of Section 19 unless in the
opinion of the court a failure of justice has in fact been
occasioned thereby.
29.3.The Hon'ble Supreme Court in Tshering
Bhutia v. State of Sikkim [Ashok Tshering
Bhutia v. State of Sikkim, (2011) 4 SCC 402 referring
to the earlier precedents has observed that
…A mere error, omission or irregularity in sanction is
not considered to be fatal unless it has resulted in a
failure of justice or has been occasioned thereby…
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Crl.A(MD)No.522 of 2017
27.3.Two foundational facts namely demand and acceptance of
bribe amount are found in the sanctioning order/Ex.P1 and in P.W.1’s
deposition to prosecute the appellant under Section 7 and 13(1)(d) r/w
13(2) of the Prevention of Corruption Act 1988. When the sanctioning
authority accorded sanction, the presumption under Section 114(e) of the
Indian Evidence Act comes into play that the sanctioning authority
properly discharged his duty. The accused is duty bound to establish
failure of justice. In this case, the accused never established the failure of
justice. Therefore, the argument of the learned Senior Counsel that
conviction is liable to be set aside on the ground of non-application of
mind on the part of the sanctioning authority while granting sanction
cannot be accepted.
28. Discussion on the explanation of the accused :-
In this case, the learned Senior Counsel for the appellant heavily
relied on the evidence of PW-2. According to the evidence of PW-2, he
handed over the money as tax arrears. But the appellant took a topsy
turvy stand during the 313 questioning that the amount was thrust. The
said contradictory version itself shows that the appellant made false
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Crl.A(MD)No.522 of 2017explanation as if PW-2 never handed over the money to him. Therefore,
the said submission of the learned senior counsel that he received the
amount as a tax arrears is not acceptable. More over there was no
evidence adduced to prove the same. As discussed earlier the
investigating agency collected material to show that there was no arrears
of tax. Therefore, the explanation of the appellant during the 313
questioning is false and the said false explanation is the additional
material circumstance to hold that the appellant made a demand and
accepted the bribe amount.
29. Discussion on the submission that the appellant has no
authority to reduce and fix the house tax :-
To consider the contention of the appellant that he has no authority
to reduce and refix the house tax, it is relevant to extract 7(e) of the
Prevention of Corruption Act 1988:
(a) Where a public servant induces a person
erroneously to believe that his influence with the
Government has obtained a title for that person and
thus induces that person to give the public servant,
money or any other gratification as a reward for thisPage 48/60
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Crl.A(MD)No.522 of 2017service, the public servant has committed as offence
under this Section.
30. From the reading of above Section, it is not necessary, to
constitute the offence under Section 7 and 13(2) of the Prevention of
Corruption Act, the public servant must do something in connection
with his own duty and thereby obtain any valuable thing or pecuniary
advantage and the same is fortified by the following judgments of the
Hon’ble Supreme Court:
30.1. Bhanuprasad Hariprasad Dave v. State of Gujarat,
reported in AIR 1968 SC 1323:
“8…. To establish the offence under Section 161 of the
Indian Penal Code all that prosecution had to establish
was that the appellants were public servants and that
they had obtained illegal gratification for showing or
forbearing to show, in the exercise of their official
functions, favour or disfavour to Ramanlal. The question
whether there was any offence which the first appellant
could have investigated or not is irrelevant for that
purpose. If he had used his official position to extract
illegal gratification the requirements of the law is
satisfied.
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Crl.A(MD)No.522 of 201730.2. The Constitution Bench of the Hon’ble Supreme Court in
Dhaneshwar Narain Saxena v. Delhi Admn., reported in AIR 1962 SC
195 has held as follows:
“4. It will be observed that the heading of Section 5 is
Criminal misconduct in the discharge of official duty.
That is a new offence which was created by the Act, apart
from and in addition to offences under the Indian Penal
Code, like, those under Section 161, etc. The legislature
advisedly widened the scope of the crime by giving a very
wide definition in Section 5 with a view to punish those
who, holding public office and taking advantage of their
official position, obtain any valuable thing or pecuniary
advantage. The necessary ingredient of an offence under
Section 161 of the Indian Penal Code, is the clause “as a
motive or reward for doing or forbearing to do any
official act or 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 or
any State Government or Parliament or the Legislature
of any State, or with any public servant”, but it need not
be there in order to bring an offence under Section 5 of
the Act home to the accused. The offence under this
section is, thus, wider and not narrower, than the offencePage 50/60
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Crl.A(MD)No.522 of 2017of bribery as defined in Section 161 of the IPC. The
words “in the discharge of his duty” do not constitute an
essential ingredient of the offence. The mistake in the
judgment of this Court in the aforesaid ruling in State of
Ajmer v. Shivji Lal [(1959) Supp. (2) SCR 739] has
arisen from reading those words, which are part merely
of the nomenclature of the offence created by the Statute,
whose ingredients are set out in sub-clauses (a) to (d)
that follow, as descriptive of an essential and additional
ingredient of each of the types of offence in the four sub-
clauses. That that is the source of the mistake is apparent
from the erroneous way in which the section has been
quoted at p. 744 of the Supreme Court Report, in the
paragraph preceding the paragraph quoted above. The
ingredients of the particular offence in clause (d) of
Section 5(1) of the Act are; (1) that he should be a public
servant; (2) that he should use some corrupt or illegal
means or otherwise abuse his position as a public
servant; (3) that he should have thereby obtained a
valuable thing or pecuniary advantage; and (4) for
himself or for any other person. In order to bring the
charge home to an accused person under clause (d)
aforesaid of the section, it is not necessary, that the
public servant in question, while misconducting himself,
should have done so in the discharge of his duty. It wouldPage 51/60
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Crl.A(MD)No.522 of 2017be anomalous to say that a public servant has
misconducted himself in the discharge of his duty.
“Duty” and “misconduct” go ill together. If a person has
misconducted himself as a public servant, it would not
ordinarily be in the discharge of his duty, but the reverse
of it. That “misconduct”, which has been made criminal
by Section 5 of the Act, does not contain the element of
discharge of his duty, by public servant, is also made
clear by reference to the provisions of clause (c) of
Section 5(1). It is well settled that if a public servant
dishonestly or fraudulently misappropriates property
entrusted to him, he cannot be said to have been doing so
in the discharge of his official duty (vide the case of Hori
Ram Singh v. Crown [(1939) FCR 159] . An application
for special leave to appeal from that decision was refused
by the Privy Council in Hori Ram Singh v. King-
Emperor [(1940) FCR 15] . This Court, therefore,
misread the section when it observed that the offence
consists in criminal misconduct in the discharge of
official duty. The error lies in importing the description
of the offence into the definition portion of it. It is not
necessary to constitute the offence under clause (d) of the
section that the public servant must do something in
connection with his own duty and thereby obtain any
valuable thing or pecuniary advantage. It is equallyPage 52/60
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Crl.A(MD)No.522 of 2017wrong to say that if a public servant were to take money
from a third person, by corrupt illegal means or
otherwise abusing his official position, in order to
corrupt some other public servant, without there being
any question of his misconducting himself in the
discharge of his own duty, he has not committed an
offence under Section 5(1)(d). It is also erroneous to hold
that the essence of an offence under Section 5(2), read
with Section 5(1)(d), is that the public servant should do
something in the discharge of his own duty and thereby
obtain a valuable thing or pecuniary advantage.”In this case, apart from the above legal aspect, the specific case of the
prosecution is as follows:
ePh; U.500 nfhLj;jhy; jhd; ,.X.tplk; nrhy;yp
thpia Fiwj;J Nghl KbAk;
Apart from that, the Trap Laying Officer/P.w.7 recovered the
application of P.W.2 from his custody immediately after the trap on the
basis of the disclosure by the appellant.Therefore, in all aspects the
contention of the appellant that the offence under Section 7 and 13(1)(e)
of the P.C. Act, is not made out against him on the ground that the is not
competent to reduce the tax cannot be accepted. Hence, the contention
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Crl.A(MD)No.522 of 2017of the senior counsel that the appellant is entitled to acquittal on the
ground that he has no authority to reduce and fix the house tax does not
stand.
31.Conclusion :-
In this case, P.W.3 clearly deposed about the demand and
acceptance of the bribe amount by the appellant. P.W.3 also deposed
about the preparation of the recovery mahazar under Ex.P7. In the
recovery mahazar, entire process of demand, acceptance all have been
recorded by P.W.7. Ex.P7, was never disputed by the appellant. P.W.7
also deposed about the preparation of the recovery mahazar. The
recovery mahazar also was served upon the appellant on the same day
itself. The same was also not disputed by the appellant. The appellant
took a diametrically opposite stand from the recovery mahazar during
the 313 Cr.P.C., explanation. Even P.W.2 clearly deposed that the
appellant received the amount. But the appellant stated that he never
received the amount and the same was attempted to be thrust into his
pocket. P.W.3’s evidence is cogent for both demand and acceptance.
Adding to that, his evidence also corroborated P.W.2’s evidence of
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Crl.A(MD)No.522 of 2017receipt of amount. In Vinod Kumar Garg v. State (NCT of Delhi),
(2020) 2 SCC 88 at page 97 the Hon’ble Supreme Court has held that
the demand and acceptance can be proved through the circumstantial
evidence, which reads as follows:
14. It would be sound to be cognitive of
the time gap between the date of occurrence,
3-8-1994, and the dates when the testimony of
Nand Lal (PW 2) was recorded, 9-7-1999 and
14-9-1999, and that Hemant Kumar’s (PW 3)
testimony was recorded on 18-12-2000 and
30-1-2001. Given the time gap of five to six
years, minor contradictions on some details are
bound to occur and are natural. The witnesses
are not required to recollect and narrate the
entire version with photographic memory
notwithstanding the hiatus and passage of time.
Picayune variations do not in any way negate
and contradict the main and core incriminatory
evidence of the demand of bribe, reason why the
bribe was demanded and the actual taking of the
bribe that was paid, which are the ingredients of
the offence under Sections 7 and 13 of the Act,
that as noticed above and hereinafter, have been
proved and established beyond reasonable
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Crl.A(MD)No.522 of 2017
doubt. Documents prepared contemporaneously
noticed above affirm the primary and ocular
evidence. We, therefore, find no good ground and
reason to upset and set aside the findings
recorded by the trial court that have been upheld
by the High Court. Relevant in this context
would be to refer to the judgment of this Court
in State of U.P. v. G.K. Ghosh [State of
U.P. v. G.K. Ghosh, (1984) 1 SCC 254 : 1984
SCC (Cri) 46] wherein it was held that in a case
involving an offence of demanding and
accepting illegal gratification, depending on the
circumstances of the case, it may be safe to
accept the prosecution version on the basis of
the oral evidence of the complainant and the
official witnesses even if the trap witnesses turn
hostile or are found not to be independent. When
besides such evidence, there is circumstantial
evidence which is consistent with the guilt of the
accused and inconsistent with his innocence,
there should be no difficulty in upholding the
conviction.
32. Therefore, the conviction passed against the appellant under
Section 7 and 13(1)(e) of the P.C Act deserves to be accepted.
Page 56/60 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.522 of 2017 Discussion on topics Relevant paragraph Facts of the prosecution case:- 3 Submission of the appellant's counsel 10 Submission of the learned Additional 12 Public Prosecutor Discussion on merits 15 Brief discussion on facts 16 Proof of the demand through the 20 appreciation of PW2 evidence: Demand of proof through the tell-tale 20.6 circumstances :- to 20.7 Proof of demand through the 21 testimony of trap witnesses Discussion on the proof of 22 acceptance :- The presumption under section 20 of 22.3 the prevention of corruption Act:- Sanction 24 Discussion on the explanation of 28 the accused Discussion on the submission that 29 the appellant has no authority to reduce and fix the house tax :- Conclusion 31
33. In the said circumstances, this Court confirms the conviction
passed against the appellant and sentence imposed by the learned Trial
Judge and dismiss the appeal.
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Crl.A(MD)No.522 of 2017
34. Accordingly, this Criminal Appeal stands dismissed and the
conviction and sentence of imprisonment imposed by the learned Judge,
Special Court for Trial of Cases under Prevention of Corruption Act,
Sivagangai in Spl.C.C.No.16 of 2014, dated 15.12.2017, is hereby
confirmed. The bail bond granted shall be cancelled and the trial Court is
directed to secure the accused and confine him in prison to undergo
remaining period of imprisonment.
19.03.2024
Index :Yes / No
Internet :Yes / No
NCC :Yes / No
cmr/sbn
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Crl.A(MD)No.522 of 2017
To
1.The Special Court
for Trial of Cases under Prevention of Corruption Act,
Sivagangai.
2.The Deputy Superintendent of Police,
Vigilance and Anti Corruption,
Sivagangai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Record Section (Criminal)
Madurai Bench of Madras High Court, Madurai.
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Crl.A(MD)No.522 of 2017
K.K.RAMAKRISHNAN, J.
cmr/sbn
CRL.A.(MD)No.522 of 2017
19.03.2024
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