Madras High Court

V.Arumugam(Died) vs State Of Tamil Nadu Rep.By on 2 December, 2021

                                                                                   Crl.A.No.363 of 2011

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 02.12.2021

                                                         CORAM:

                            THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN

                                                    Crl.A.No.363 of 2011

                  1.V.Arumugam(died)
                  2.Smt.Thulasimani
                  3.A.Raghupathy
                  4.S.Premavathi
                  (Appellants 2 to 4 in the place of the deceased/
                  appellant amended as per the order in
                  Crl.M.P.No.10780 of 2021 in Crl.A.
                  No.363 of 2011, dated 21.10.2021)                           ..Appellants

                                                            Vs.
                  State of Tamil Nadu rep.by
                  The Deputy Superintendent of Police,
                  Vigilance and Anti Corruption, Erode,
                  (Crime No.3/Ac/2003)                                        ..Respondent

                  Prayer: Criminal Appeal has been filed under Section 374(2) of Cr.P.C.,

                  against the judgment of the learned Special Judge/Chief Judicial Magistrate,

                  Erode, in Spl.C.No.12 of 2004, dated 15.06.2011.

                                   For Appellants      :Mr.A.K.Kumaraswami, Senior Counsel for
                                                        Mr.Kaithaimalai Kumaran

                                   For Respondent      :Mr.C.E.Pratap,
                                                        Government Advocate (Crl.Side)
                                                          -----


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                                                     JUDGEMENT

The deceased first appellant is the sole accused, in Spl.C.No.12 of

2004, on the file of the learned Special Judge / Chief Judicial Magistrate,

Erode. He stood charged for offences under Sections 7 and 13(2) r/w Section

13(1)(d) of Prevention of Corruption Act (hereinafter referred to as the Act).

By judgment dated 15.06.2011, the trial Court convicted him under Sections

7 and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act and

sentenced him to undergo simple imprisonment for one year and to pay a fine

of Rs.3,000/-, in default, to undergo simple imprisonment for one month.

Challenging the said conviction and sentence, the present appeal has been

filed. Pending appeal, the appellant / accused died and his legal

representatives were substituted to prosecute the present appeal.

2. The case of the prosecution in brief is that, the deceased

appellant/accused, was working as Village Administrative Officer in

Pazhamangalam Village, Erode district. P.W.2/defacto complainant

approached the accused for transfer of patta in his favour based on a Civil

Court decree. The accused demanded a sum of Rs.2,000/- as illegal

gratification for transferring the patta. However, on persuasion, he agreed for

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Crl.A.No.363 of 2011

Rs.1,000/- and directed P.W.2 to pay it on or before 28.05.2003.

Immediately, the P.W.2 approached the respondent police and filed a

complaint. Based on that, the respondent police registered a F.I.R. in Crime

No.3/Ac/2003/ER for offences under Section 7 of the Prevention of

Corruption Act and recorded his statement. Thereafter, P.W.17, the Inspector

of Police, sought the assistance of P.W.3, who was working as a Special

Officer in the Weavers Cooperative Society and he prepared the Mahazar and

prepared for the trap. Thereafter, P.W.2 met the accused, where he

demanded the money and P.W.2 handed over the same to the accused.

Immediately, P.W.17 and other officers rushed there and recovered the

money from his shirt pocket and conducted sodium carbonate test which was

proved positive, then P.W.17 arrested the accused and prepared the mahazar

and handed over the investigation to P.W.18, the Deputy Superintendent of

Police. He recorded the statements of all the witnesses and on completion of

investigation filed the final report for offences under Sections 7 and 13(2) r/w

13(1)(d) of Prevention of Corruption Act.

3. Based on the above materials, the trial Court framed appropriate

charges. The accused denied the same. In order to prove the case, on the side

of the prosecution, as many as 18 witnesses were examined, 34 documents https://www.mhc.tn.gov.in/judis

Crl.A.No.363 of 2011

and 5 material objects were marked.

4. P.W.2 is the defacto complainant, but he turned hostile during

cross examination. However, the Trial Court relying upon the chief

examination of P.W.2 and P.W.3 the accompanying witness, convicted the

accused. Now challenging the said conviction, the present appeal has been

filed.

5. Mr.A.K.Kumaraswami, learned senior counsel, appearing for the

appellants would contend that the main witness i.e. the defacto

complainant/P.W.2 has turned hostile. P.W.4 who is the Village Assistant,

working under the accused Village Administrative Officer has clearly

deposed that both the defacto complainant and the accused belongs to the

same village and closely related to each other, there is a civil dispute between

them. That apart the accused as a Village Administrative Officer was

collecting money for renovation of his village temple and only for that

purpose, P.W.2 handed over the money to the accused. P.W.3, the

accompanying witness, also did not spoke about the demand of illegal

gratification said to have been made by the accused. In such circumstances,

in the absence of any evidence of demanding illegal gratification, based on https://www.mhc.tn.gov.in/judis

Crl.A.No.363 of 2011

mere recovery, the conviction cannot be imposed. According to the learned

senior counsel, the trial Court mainly relied upon the chief examination of

P.W.2 and convicted the accused, which is not maintainable in the eye of

law.

6. Per contra, the learned Government Advocate (Crl.side) appearing

for the respondent submitted that,even though P.W.2 turned hostile, in his

chief examination, he has clearly stated that the accused demanded

Rs.1,000/- as bribe for transferring the patta and he turned hostile in the

cross examination. That apart, the evidence of P.W.3 also corroborate the

evidence of P.W.2 and with other circumstances the prosecution has clearly

proved the demand. That apart, in the trap conducted by the respondent

police, the accused was caught red handed and the Phenolphthalein test was

proved positive and the money was also recovered from the accused.

Considering all those materials, the trial Court rightly convicted the accused

and there is no reason to interfere with the well considered judgement of the

trial Court.

7. I have considered the rival submissions and also perused the

materials.

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Crl.A.No.363 of 2011

8. P.W.2 is the defacto complainant and he turned hostile during

cross examination, further, in his evidence, P.W.2 has clearly stated that

there is previous enmity between the accused and P.W.2, and the accused in

his capacity as Village Administrative Officer was collecting money from the

villagers for renovating the village temple. Making use of the circumstance,

in order to wreck vengeance against the accused, P.W.2 has given a

complaint as if the accused demanded illegal gratification. His evidence has

been corroborated by the evidence of P.W.4, a Village Assistant, working

under the accused. In his cross examination, he has clearly stated that P.W.2

has given an application for transfer of patta and the said application was

submitted before the Revenue Inspector's Office twenty days prior to the date

of occurrence. P.W.2, told him that he would wreck vengeance against the

accused before his retirement. He further deposed that the accused was

collecting money only for renovation of a local temple.

9. From the above evidence, it could be seen that there is no demand

for illegal gratification by the accused. Even the evidence of P.W.3, the

accompanying witness, has not spoken about the illegal demand made by the

accused, he has spoken only about the recovery of money from the accused. https://www.mhc.tn.gov.in/judis

Crl.A.No.363 of 2011

10. It is settled law that mere possession and recovery of the

currency notes from the accused without any proof of demand will not bring

home the offence under Section 7 of the Act. Demand of illegal gratification

is sine qua non to constitute the said offence. It is also settled that insofar as

the offence under Section 13(1)(d) of the Act, in the absence of any proof of

demand for illegal gratification, the use of corrupt or illegal means or abuse

of position as a public servant to obtain any valuable thing or pecuniary

advantage cannot be held to be established. That apart, it is only on proof of

acceptance of illegal gratification the presumption can be drawn under

Section 20 of the Act, that such gratification was received for doing or

forbearing to do any official act, without proof of demand of illegal

gratification, conviction cannot be imposed.

11. It is also equally well settled that the burden of proof placed upon

the accused person against whom the presumption is made under Section 20

of the Act is not akin to that of burden placed on the prosecution to prove the

case beyond reasonable doubt. The initial onus is on prosecution to prove

beyond reasonable doubt, in situation where there is a legal presumption, the

onus on the accused is only to explain on the basis of preponderance of https://www.mhc.tn.gov.in/judis

Crl.A.No.363 of 2011

probabilities, the initial burden always on the prosecution to prove the

demand and acceptance of illegal gratification only if it is successfully

discharged by the prosecution, then the burden of proof shifts on the

accused.

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

reported in (2015) 10 SCC 230 has observed as follows:

"The allegation of bribe taking should be considered along with other material circumstances. Demand has to be proved by 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 regarding the demand of bribe.” “The prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case."

13. Further the Hon'ble Supreme Court in C.Sukumaran Vs. State of

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Kerala reported in (2015) 11 SCC 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 illegal gratification by the accused is the sine qua non for constituting an offence under the provisions of the Act. Thus, the burden to prove the accusation against the appellant for the offence punishable under Section 13(1) (d) of the Act with regard to the acceptance of illegal gratification from the complainant PW2, lies on the prosecution."

14. In the instant case, the prosecution has failed to discharge its

initial burden that there is a demand for illegal gratification by the accused.

From the evidence available on record, it could be seen that the accused was

collecting money only for renovation of a local temple. In the above

circumstances, the presumption under Section 20 of the Act will not arise.

15. Considering all those circumstances, this Court is of the

considered view that prosecution has miserably failed to prove the demand

for illegal gratification by the accused and consequently the offence under

Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act is not

made out against the accused. Hence, the accused is entitled for acquittal.

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Crl.A.No.363 of 2011