Madras High Court

State Represented By vs Dr. P.Venkatesan on 2 December, 2021

                                                                                    Crl.A.No.616 of 2016

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 02.12.2021

                                                           CORAM

                              THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN

                                                    Crl.A.No.616 of 2016


                     State represented by
                     The Public Prosecutor,
                     High Court, Madras-104.
                     (Crime No.2/AC/2008/DP
                       of Dharmapuri V&AC)                                 …      Appellant


                                                              Vs

                     1. Dr. P.Venkatesan

                     2. Tr.G.Gandhi                                        ...     Respondents



                                  Criminal Appeal is filed under Section 378 of Cr.P.C. to allow the

                     appeal and set aside the judgment of acquittal dated 06.05.2016 in Special

                     C.C.No.06/2009 on the file of the Special Court cum Chief Judicial

                     Magistrate Court, Dharmapuri and convict the respondent/accused (A1 &

                     A2) as charged.


                     1/12


https://www.mhc.tn.gov.in/judis
                                                                                     Crl.A.No.616 of 2016

                                  For petitioner                ...   Mr. C.E.Pratap,
                                                                      Government Advocate (Crl.side)

                                  For respondents               ...   Mr. P.H. Manoj Pandian,
                                                                      for R1

                                                                ... Mr. R.Ezhilarasan,
                                                                    for R2


                                                           ORDER

Against the order of acquittal, passed by the learned Special Judge,

Special Court/Chief Judicial Magistrate Court, Dharmapuri, in Spl.C.C.No.6

of 2009, dated 06.05.2016, the State is before this Court with this Appeal.

2. The respondents 1 and 2 are accused in the above said Spl.C.C.

and they stood charged for the offences under Sections 7 and 13(2) r/w.

13(1)(d) of Prevention of Corruption Act 1988. After trial, by judgment

dated 06.05.2016, the trial Court acquitted both the accused. Against the

order of acquittal, present appeal has been filed before this Court.

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3. The case of the prosecution, in brief, is as follows:-

A1, in this case has been working as a Doctor in the Government

Medical College Hospital, Dharmapuri. A2 has been working as a

compounder under A1 and both are public servants. The defacto

complainant in this case, namely, Muniyappan, is a physically challenged

person. For the purpose of getting some concession in railways, he required

a certificate from A1. When the defacto complainant approached A1, he has

demanded Rs.350/- for the purpose of issuing certificate. Out of which,

Rs.300/- go to A1 and Rs.50/- will go to A2, Immediately, the defacto

complainant/P.W.3 went to the respondent police and lodged a complaint

before P.W.11.

4. P.W.11, the Deputy Superintendent of Police, Vigilance and Anti

Corruption, Dharmapuri, registered a case in Crime No.2/AC/2008, for the

offences under Sections 7 and 13(2) r/w. 13(1)(d) of Prevention of

Corruption Act, and commenced investigation, and prepared trap along with

two witnesses, wherein, P.W.4, is a Sub-Inspector of local Fund Audit,

https://www.mhc.tn.gov.in/judis Crl.A.No.616 of 2016

accompanied the defacto complainant/P.W.3. Then, both P.W.3 and P.W.4

went to the hospital along with the trap officials and handed over a sum of

Rs.350/- (7 number of Rs.50 currency notes) to A1, and A1 kept Rs.50/-,

in his pant pocket, and handed over the remaining sum of Rs.300/-(6

number of Rs.50 currenct notes) to A2 and asked him to change the Rs.50/-

notes into Rs.100/- notes. Immediately, the Deputy Superintendent of

Police, caught the accused red handed. A sum of Rs.300/- was recovered

from A2 and a sum of Rs.50/- was recovered from A1. Thereafter, he has

conducted a Sodium Carbonate test, which turned positive, then, he has

prepared a Mahazar and arrested the accused. After completion of

investigation, he has filed a final report.

5. Based on the materials, the Trial Court framed charge under

Sections 7 and 13(2) r/w. 13(1)(d) of Prevention of Corruption Act 1988

against both the accused, The accused denied the same. In order to prove

the case of the prosecution, on the side of the prosecution, as many as 12

witnesses were examined and 25 documents were exhibited, besides 11

Material Objects were marked.

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6. Out of the witnesses examined, P.W.3 is the defacto complainant.

However, he turned hostile in the cross examination. P.W.4 is the

accompanying witness, according to him, he accompanied P.W.3 to hospital,

wherein, A2 asked with the defacto complainant, whether money is ready,

thereafter, he handed over Rs.350/- in Rs.50/- denomination to A1, out of

which, A1 kept Rs.50/- and gave the remaining Rs.300/- to A2 for changing

the same to denomination of Rs.100/- notes. Thereafter, P.W.11 and other

officials arrested both the accused and recovered money from them and

conducted Sodium Carbonate test. P.W.11, the Investigating Officer

elaborately speaks about the complaint given by PW.3 and also the

investigation conducted by him.

7. When the above incriminating materials were put to the accused

under Section 313 Cr.P.C., they have denied the same as false. However,

they did not choose to examine any witness or mark any documents on their

side.

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8. Having considered all the above materials, the trial Court

acquitted all the accused, in respect of the charge, as detailed in the first

paragraph of this judgment. Aggrieved against the acquittal of the accused,

the present Criminal Appeal has been filed by the State.

9. The learned Special Public Prosecutor, appearing for the appellant

would submit that even though P.W.3/defacto complainant turned hostile,

the evidence of P.W.4 and P.W.11 and other materials, like, Seizure

Mahazar, clearly established that A1 and A2 demanded bribe from P.W.3

and also received the illegal gratification and a trap was conducted, which

proved positive. In the above circumstances, the Trial Court ought not to

have acquitted the accused on the ground of P.W.3 turned hostile. He would

further submit that even the evidence of P.W.3, is sufficient to show that

there was a demand for illegal gratification and the Trial Court overlooked

those evidence, and mechanically acquitted both the accused, on the ground

that there is no evidence for demand, and hence the same is liable to be set

aside.

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10. Per contra, Mr. Manoj Pandian, the learned counsel appearing for

the first respondent/A1, would submit that the main witness, namely, the

defacto complainant turned hostile, and even in the evidence of P.W.4, there

is nothing to show that A1 has demanded illegal gratification. So far as

recovery of Rs.50/- from the first respondent/A1 is concerned, it is only the

fees payable for issuing certificate. The trial Court, considering all the

evidence, has rightly come to the conclusion that the prosecution had failed

to prove its case beyond reasonable doubt and acquitted the respondents

/accused and there is no reason to interfere with the order of acquittal.

11. The learned counsel for the 2nd respondent/A2 would submit that

as P.W.3 turned hostile, mere recovery of Rs.300/- from A2 itself is not

sufficient to convict the accused, it is not his duty to issue certificate and

there is no necessity for him to demand bribe from the defacto complainant.

12. This Court considered the rival submissions made on either side

and perused the materials available on records carefully.

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13. The appeal is against the order of acquittal. P.W.3, is the defacto

complainant, he turned hostile and the Public Prosecutor has also

extensively cross examined him. So far as the demand of bribe amount is

concerned, yet another available witness is P.W.4. A careful perusal of the

evidence of P.W.4, nothing could be seen regarding demand of illegal

gratification from the defacto complainant. Except that, there is no evidence

available to prove the demand made by the accused.

14. Mere possession and recovery of currency notes from the accused

without any proof of demand will not bring home the offence under Section

7 and in the absence of any proof of demand of illegal gratification, the use

of corrupt or illegal means or abuse of position as a public servant to obtain

any pecuniary advantage can not be held to be established. The trial Court,

rightly considered the evidence of P.W.3 and P.W.4 and other materials, has

come to a conclusion that there is no proof for demand and acquitted the

accused.

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15. The Hon'ble Supreme Court in Selvaraj Vs. State of Karnataka reported in

(2015) 10 S C C 230 has observed as follows:

"The allegationof bribetaking shouldbeconsideredalongwith other materialcircumstances. Demand has to be provedby adducing clinching evidence. Recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of the testimony of the complainant regardingthe demandof bribe.” “The prosecution has to prove the charge beyond reasonabledoubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by properproofof demandand acceptanceof illegalgratification, which is the vital ingredient to securethe convictionin a bribery case."

16. Further the Hon'ble Supreme Court in C. SukumaranVs. State of Kerala reported in (2015) 11 S C C 314 has observed as follows:

"It has been continuously held by this Court in a catena of cases after interpretation of the provisions of Section 7 and 13(1) (d) of the Act that the demand of illegalgratificationby the accusedis the sine qua non for constituting an offenceunder the provisionsof the Act. Thus, the burden to provethe accusation against the appellant for the offence punishable under Section 13(1) (d) of the Act with regardto the acceptanceof illegalgratificationfrom the complainant PW2, lieson the prosecution."

17. It is settled principal of law that, in an order of acquittal, there is

double presumption in favour of the accused. Firstly, the presumption of

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innocence is available to him, the fundamental principle of criminal justice

delivery system is that, every person, accused of committing an offence shall

be presumed to be innocent, unless his guilt is proved by a competent Court

of law. Secondly if the accused has secured an order of acquittal, the

presumption of his innocence is reaffirmed and strengthened by the trial

Court. Even if two reasonable conclusions are possible on the basis of

evidence on record, the appellate Court should not disturb the finding of the

acquittal recorded by the trial Court.

18. In the above circumstances, I find no illegality or perversity in the