This Criminal Appeal has been filed against the judgment dated 27/2/2002, convicting the accused in Special Case No.1 of 2000 on the file of I Additional Sessions Judge-cum-Chief Judicial Magistrate, Tiruchirapalli for the offences under Sections 7, 13 (2) r/w. 13 (1) (d) of Prevention of Corruption Act and sentencing 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 under Section 7 of the Act and also 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 under Section 13 (2) r/w. 13 (1) (d) of the said Act and the sentences are directed to run concurrently.
2. The case of the prosecution, in short, is that the complainant/Kali Gounder of Karukkumadai Kattusalai Village was an agriculturalist. He owns 4 acres and 64 cents of punja lands and a well in Survey No.82/8c. He had applied for electricity service connection by paying Rs.50/- in the year 1995. Till 1998, the electricity connection was not given. Under the Self Financing Scheme, he applied to Tamil Nadu Electricity Board for getting electricity service connection on priority basis. The accused/appellant was a Junior Engineer at Tamil Nadu Electricity Board at Kattuputhur between 8/9/1995 and 27/2/1999. He met the Junior Engineer and on his advise, he submitted an application. As per the direction of the accused, he annexed the relevant documents like chitta, copy of adangal, copy of the ration card, kist receipts and sketch. After a month, he received a letter from the Tamil Nadu Electricity Board, Musiri to pay a sum of Rs.25,125/- and he was given a receipt for the same. Thereafter, the accused had demanded a sum of Rs.3,000/- to be paid as bribe. Kali Gounder expressed his inability and however, the accused reduced a sum of Rs.1,000/- and demanded Rs.2,000/-. After a week, on Thursday, he met Kali Gounder and again demanded Rs.2,000/- and directed him to bring Rs.2,000/- on the coming Saturday, otherwise, he will drag on the matter without giving connection.
3. Kali Gounder went to the respondent's office at Tiruchirapalli on Friday around 4.30 p.m., along with Rs.2,000/-. He met the Deputy Superintendent of Police and his statement was recorded by the Police Constable and Kali Gounder signed in that statement. The Deputy Superintendent of Police registered a case in Crime No.5 of 1999 and the complainant produced Rs.2,000/- and on the direction of the Deputy Superintendent of Police, P.W.8, he stayed at the office in the night.
4. On the next day, the complainant was introduced to P.W.4 Rajendran and one Viswanathan who are also the Government servants. A pre-trap proceeding was conducted by the above said Viswanathan by using the Sodium Carbonate solution and the entire proceeding and the statements were recorded by P.W.8.
5. On the direction of P.W.4 Rajendran, the complainant went to the accused office on 27/2/1999 around 9.00 a.m., and met the accused. The accused asked the defacto complainant whether he has brought the money and he has also asked about P.W.4 for which the complainant said that he is a close relative. However, the defacto complainant placed the money on the table and the accused took the money by his left hand and kept it in his left side pant pocket and told the complainant that he will start the work for the electricity connection. After leaving the office of the accused and as pre-arranged, the defacto complainant gave signal to P.W.8 and P.W.8 and other officers came to the office and confronted the accused in the presence of P.W.4 and P.W.8 conducted the trap proceedings. The accused was asked to dip his left hand on the money which was seized from him by mahazar and his pant was also seized. The left side pocket was also sent for Sodium Carbonate test and all the tests turned positive and all the solutions were collected as per rules and various mahazars were prepared. The Deputy Superintendent of Police has prepared the observation mahazar and seizure mahazars and certain documents were also seized in the presence of P.W.4 and the accused was arrested. The Investigation officers seized the articles and the same were sent for chemical analysis and P.W.2 examined the articles and found Sodium Carbonate in the solutions.
6. P.W.8 examined the other witnesses 5, 6 and 7 to establish the procedure for giving connections and after completion of the investigation, the sanction was obtained from P.W.1 and a charge was filed under
Section 7,13 (1)
(d) r/w. 13 (2) of Prevention of Corruption Act.
7. The learned trial Judge on appearance of the accused, framed the charges and on denial of the charges, conducted the trial.
8. After examination of the prosecution witnesses and marking of various documents, the accused examined defence witnesses viz., D.Ws.1 to 4 and also produced the defence documents viz., D.1 to D.3. The defence taken by the accused before the trial Court was that there was no demand as stated by the defacto complainant at the time of payment of charges for the electricity connection and even thereafter, according to the defence, when the defacto complainant wanted to pay the money, there was short of Rs.2,000/- and the same was given by D.W.1 who is known to the accused and the same was returned by the defacto complainant on 27/2/1999. According to the defence, on 25/2/1999, he was not at all in the office and he has been to the store to purchase the articles in relation to the electricity connection to be given to the defacto complainant and P.Ws.2 to 4 would speak about those instance.
9. However, the learned Judge disbelieved the defence therein and found the prosecution has proved the case beyond reasonable doubt and also doing the trap case, the learned Judge found the accused has demanded and obtained a sum of Rs.2,000/- as bribe and convicted him and passed a sentence as stated above.
10. Aggrieved by the conviction and sentence, the accused has preferred the present appeal on the ground that the sanction order has been passed without applying the mind and that the prosecution had failed to prove that the money accepted as bribe.
11. The short point for consideration is "Whether the conviction and sentence of the trial Court for offences under
Sections 7,13 (2) r/w.
13 (1) (d) of Prevention of Corruption Act is sustainable in law?"
12. The learned counsel for the appellant would submit that the prosecution has not proved that money paid is a bribe, when there is a probable case of the defence that the money was paid to repay a loan obtained by the defacto complainant.
13. The learned counsel also pointed out that on 24/2/1999, the defacto complainant alleged that he met the accused in the office and the accused had demanded the money and directed him to bring the same on Saturday and the learned counsel stated that on that particular day, the accused was not at all in the office and the defence witness D.W.2 the Commercial Assistant would state that a work order was received on 25/2/1999 and the same has been processed by J.E. on 25/2/1999.
14. The learned counsel also pointed out that D.W.3 the Commercial Inspector of Kattuputhur Electricity Board would state that on 24/2/1999, he left for Musiri to take delivery of the accessories from the store at Musiri for the purpose of giving electricity connection to the complainant.
15. The learned counsel pointed out that D.W.3 had accompanied the accused to Musiri Office and only on 25/2/1999 around 1.00 p.m., the accused has come back to the office. The learned counsel also pointed out that D.W.4 would also corroborate the evidence of D.W.3.
16. The case of the prosecution is that the accused had demanded Rs.2,000/- on 24/2/1999 and a week prior to that for giving electricity connection to the well and the prosecution had laid the trap on the complaint of P.W.2. On 26/2/1999, on the trap had turned out to be a positive and the accused had been caught red handed.
17. P.W.2 the complainant and P.W.4 the independent witness would speak about the pre-trap proceedings and the post trap proceedings. There is no procedural irregularity as far as the trap proceedings are concerned.
18. The learned counsel for the appellant had relied on various judgments for the proposition that mere receipt of money will not be sufficient to fasten guilt under
Section 5 (1) (a) or 5 (1) (d) of the Act, without any evidence of demand and acceptance of the amount as illegal gratification.
19. The learned counsel also relied on various judgments to the effect that merely there is a trap and the tainted money was recovered from the possession of the accused. It cannot be presumed that the prosecution has proved its case. If there is a reasonable possibility of innocence on the part of the accused and if there is an evidence to probabilise the defence therein.
20. In 1991 (1) CRIMES - 196 (S.V.KAMESWAR RAO AND ANR. Vs. THE STATE), the Honourable Supreme Court has held as follows:-
"In the absence of any evidence regarding the demand of money as a motive or reward the explanation offered by the accused cannot be thrown away as unworthy of acceptance, for the purposes of prosecution under the Prevention of Corruption Act."
21. In 1998 CRI.L.J - 756 (ANAND SARUP Vs. THE STATE), the Honourable Supreme Court has held that "Mere recovery of money from the accused is not sufficient to convict him. Evidence of complainant should be corroborated in material particulars."
22. In 2004 (1) CRIMES - 91 (NIRANJAN BHARATI Vs. STATE OF ORISSA), has held that "Evidence showed that by the time trap was laid the application for loan had already been sent to treasury and leave salary had already been paid and no work of complainant was pending with appellant. Though not necessary that bribe must be paid before work was done and same could be paid after work was done, but demand of bribe as alleged was not free of doubt."
23. In 2006 (1) T.N.L.R - 289 (SC) (T.SUBRAMANIAN Vs. STATE OF TAMIL NADU), wherein the Supreme Court has held that "Mere receipt of Rs.200 by the appellant from P.W.1 on 10/7/1987 (admitted by the appellant) will not be sufficient to fasten guilt under
Section 5 (1) (a) or
Section 5 (1) (d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. If the amount had been paid as lease rent arrears due to the temple or even if it was not so paid, but the accused was made to believe that the payment was towards lease rent due to the temple, he cannot be said to have committed any offence. If the reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted, as rightly done by the Special Court. In Punjabrao Vs. State of Maharashtra, (2002) 10 S.C.C. - 371, the accused, a patwari, was on a campaign to collect loan amount ~ due to Government."
24. It has further held that "It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability."
25. In 2007 - 1 l L.W. (Crl.) - 199 (M.K.SHANMUGHASUNDARAM Vs. THE INSPECTOR OF POLICE, VIGILANCE AND ANTI CORRUPTION, SALEM), wherein this Court has held that "It is well settled law that in case of admission of receipt of money by the Government Servants where allegation of corruption is pleaded, when there is an explanation offered by the Government Servant, as to why the money was received by him, various Courts have held that if the explanation is probable and reasonable, then the accused has to be acquitted."
26. P.W.2 the defacto complainant would state that on direction from the Electricity Board, he made a payment of Rs.25,295/- on 18/2/1999 and thereafter, the accused had demanded first for Rs.3,000/-. When the complainant expressed his inability, then he demanded Rs.2,000/-. According to the complainant, two days prior to the trap i.e., on 24/2/1999, he met the accused in his office and the accused demanded Rs.2,000/- when the complainant said he has not brought. He directed him to bring it on Saturday. So, according to the complainant, he met the Deputy Superintendent of Police on the next day i.e., on 25/2/1999 along with money and the pre-trap proceedings were prepared and on 26/2/1999, he paid the money to the accused.
27. D.Ws.2 and 3 would state that there was no delay in sanctioning the electricity connection to the defacto complainant. D.W.3 would state that on 24/2/1999, he accompanied the accused to Musiri to take delivery of the articles in relation to the electricity connection to the defacto complainant and only on 25/2/1999, the accused came back to the office. Then, necessary ledgers and T.A. bills in relation to the accused movement are also produced as the defence evidence Exs.D.1 to D.3.
28. In 2006 (1) T.N.L.R 289 (SC) (T.SUBRAMANIAN VS. STATE OF TAMIL NADU), where the Supreme Court has held that "Mere receipt of the money will not be sufficient to fasten guilt under
Section 5 (1) (a) or 5 (1) (d) of the Act, without any evidence of demand and acceptance of the amount as illegal gratification."
29. In 2007 - 1 - LAW WEEKLY (Crl.) - 199 (M.K.SHANMUGHASUNDARAM Vs. THE INSPECTOR OF POLICE, VIGILANCE AND ANTI CORRUPTION, SALEM), wherein this Court has held that "In this case also there is an explanation offered by the accused which is more probable than the allegations brought out in the evidence of the prosecution. Like every other criminal case, a case of bribery is subject to the rule that the accused is presumed innocent and that the burden to discharge the aid innocence is paramountly on the prosecution. However strong the suspicion against the accused if every reasonable possibility of innocence has not been excluded, he is entitled to acquittal. Whenever circumstances arise, they must be proved and not by themselves presumed. If therefore, the evidence regarding the demand and acceptance of bribe leaves room for doubt and does not displace the presence of innocence wholly, the charge cannot be said to have been established. Sine the accused has discharged his burden by proving that the sum of Rs.1,000/- was collected only for the purpose of Small Savings, the conviction of the accused for offences under
Sections 7 and 13 (1) (d) read with
Section 13 (2) of the Prevention of Corruption Act is not sustainable."
30. In 2004 (1) CRIMES - 91 (NIRANJAN BHARATI Vs. STATE OF ORISSA), has held that "Evidence showed that by the time trap was laid the application for loan had already been sent to treasury and leave salary had already been paid and no work of complainant was pending with appellant. Though not necessary that bribe must be paid before work was done and same could be paid after work was done, but demand of bribe as alleged was not free of doubt."
31. The defence here is three fold.
(i). the money paid by the defacto complainant to the accused on the date of occurrence is the money due to defence witness but had stated that he advanced the money on the request of the accused to the complainant when there was a shortage for the complainant, a week before the occurrence.
(ii). There was no delay in giving the electricity connection for the defacto complainant and even prior to the occurrence, the work order was submitted and the accused had already initiated the proceedings to give electricity connection.
(iii). On the particular date of demand i.e., 24/2/1999, the accused was not in the office as stated by the complainant but he was at the office at Musiri to take delivery of the articles required for giving connection in respect of the complainant's application.
32. The case of the complainant is that he paid the entire amount on 18/2/1999 as per the demand receipt by the Electricity Board however, from his evidence, it is clear that each and every stage of his process of application, he took the advise of the accused in every stage and has been complying with the same. So, there is a probability that D.W.1 could advance a sum of Rs.2,000/- to the complainant at the direction of the accused. From the evidence of D.W.2 and D.W.3, there was no delay in processing the application of the complainant but in fact, the work order was issued on 24/2/1999 and the same is initialled by the accused on 25/2/1999.
33. As per D.W.3, he had accompanied the accused to the stores at Musiri Office to take the accessories for erection of electricity connection and his movement also proved by the defence side exhibits. Therefore, not only probable but that his absence in the office on 24/2/1999 has clearly established by the defence. But the categorical version of the complainant is that on Thursday, he met the accused in his office where the accused made a demand of Rs.2,000/- and directed him to bring the money on Saturday i.e., on the occurrence date. According to the complainant, the next day, around 4.30 p.m., he went to the Vigilance and Anti Corruption Office with money. The complaint Ex.P.12 was prepared by the Police Constable the complainant has only signed in the complaint. According to the complainant, he was made to stay in the office of P.W.8 for that night and on the next day morning, the pre-trap proceeding was prepared. There is an element of doubt in the conduct of the complainant to change his mind on Friday when all along he was complying all the directions of the accused. Moreover, there is a probability in the case of the defence that there was no demand on 24/2/1999 as stated by the complainant and the money paid was only a repayment of the money advance to him on 18/2/1999. The trial Court was simply brushed aside the defence witnesses and documents merely believing the aspect.
34. Mere receipt of the money will not be sufficient to fasten guilt under
Section 5 (1) (a) or 5 (1) (d) of the Act, when there is an ample evidence to prove tht on the alleged date of demand, the accused was not in the office and was elsewhere attaining the work of the complainant. When there is a probable explanation that all the accused as to why the money was received by him and if the explanation is probable and reasonable, it has to be accepted. When there was no delay in attending to the work of the complainant and the accused had gone out of the office to obtain the accessories to execute the work of the complainant the theory of demand by the prosecution has to be necessarily disbelieved.
35. In the instant case, the prosecution has proved the case of receipt of money by a trap but on shift of burden on the accused, he had explained the receipt of money and also the absence of demand of bribe.
36. For the reasons stated above, this Criminal Appeal is allowed. The judgment dated 27/2/2002 passed by the I Additional Sessions Judge-cum-Chief Judicial Magistrate, Tiruchirapalli is set aside. The accused is acquitted. The bail bond furnished by the accused is hereby discharged.
mvs.
To
1. I Additional Sessions Judge-cum-Chief Judicial Magistrate, Tiruchirapalli.