Madras High Court
The State Rep. By vs Tr.S.Kumaraguru on 30 November, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 30.11.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.A(MD)No.108 of 2017
The State rep. by
The Public Prosecutor,
High Court, Madras.
(V & A.C Tirunelveli)
(Crime No.01/2002) : Appellant/Complainant
Vs.
Tr.S.Kumaraguru
Formerly Revenue Inspector,
Tirunelveli Firka,
Tirunelveli District. : Respondent/Accused
Prayer: Criminal Appeal filed under Section 378(1)(b) of the
Criminal Procedure Code, to set aside the judgment of acquittal of
the respondent/accused passed in Special Case No.03 of 2014,
dated 20.09.2016 by the Special Court for trial of the cases under
Prevention of Corruption Act, Tirunelveli and convict the
respondent/accused for the offence under sections 7 and 13(2) r/w
13(1)(d) of the Prevention of Corruption Act, 1988.
For Appellant : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
For Respondent : Mr.Aayiram K.Selvakumar
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2
JUDGMENT
This criminal appeal has been preferred by the State seeking
to set aside the judgment of acquittal of the respondent/accused
passed in Special Case No.03 of 2014, dated 20.09.2016 by the
Special Court for trial of the cases under the Prevention of
Corruption Act, Tirunelveli and convict the respondent/accused for
the offence under Sections 7 and 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act, 1988.
2.The case in brief:-
PW2-S.Palanisamy is the resident of Kandiaperi, Village,
Tirunelveli District and doing house site brokerage business. The
accused was working as Revenue Inspector during the relevant
period of time. PW2 was owning the house site at Poolankudiruppu
in Kunathoor Village and for the purpose of put up a construction,
he intended to obtain loan from the Central Co-operative Bank. As
per the instructions of the Manager of the said Bank, he has to
obtain income certificate from the concerned Revenue Department.
So on 21.01.2002, he went to the Taluk Office, Tirunelveli and
submitted a petition before the Deputy Tashildhar. That petition
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was forwarded to the concerned Revenue Inspector. The concerned
Revenue Inspector was not available in the seat at that time. So on
the next day, I.e., on 22.01.2002, he again visited the office of the
Revenue Inspector at about 10.00 am. At that time, he informed
that he would make recommendation, if he pays Rs.1,000/-. Then
he informed the Revenue Inspector that he will come on the next
day with money. After that, he directly went to the Tirunelveli
Vigilance & Anti Corruption Department and at about 8.00 pm, he
informed the Inspector of Police, attached to Vigilance & Anti
Corruption Department and it was reduced into writing. ExP5 is the
complaint. He was directed to come on the next day. On the next
day, at about 9.00 am, he again went to the Vigilance & Anti
Corruption Department. At that time, two Government Officials
were also present. The complaint given by him was read over to
him and he was also admitted to be correct. He also handed over
Rs.1,000/- to the Inspector and it was dipped into the glass and
some powder was mixed in it. The sodium carbonate powder was
smeared in the currency note, that was brought to PW2. One
Kandasamy was also present in that place. He was also directed to
put the currency note in his right pocket and he was also informed
to hand over the same to the Revenue Inspector, when the same is
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demanded by him. A mahazar was prepared and he was also put
his signature. The Inspector and two other witnesses have also
signed in it. The mahazar was marked as Ex.P6. Then, he went to
the Taluk office. At that time, they were informed that the Revenue
Inspector was not available and he would come at 5.00 pm. Again
they visited the Taluk office on the next day at 5.00 pm. At about
5.45 pm, the Revenue Inspector returned to the office and he made
enquiry with regard to the income certificate. At that time, the
witness Venkatachalam was also present. The Revenue Inspector
asked whether he has brought Rs.1,000/-. It was handed over to the
Revenue Inspector. After receiving the money, he put the same on
the left pant pocket. At that time, PW2 made a signal as instructed
by the Inspector of Police attached to V & AC Department and the
police team came to the place and after identifying the Revenue
Inspector, PW2 left the place. The money that was given as bribe is
MO1. The petition given by PW2 seeking income certificate is
Ex.P7.
3.PW3-Venkatachalam is the shadow witness. He also
corroborated the evidence of PW2. On the material particulars,
PW15, who was working as Inspector of Police in the Vigilance &
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Anti Corruption Department, registered the case, on the basis of
the complaint given by the complainant, in Crime No.1 of 2015
under Section 7 of the Prevention of Corruption Act, 1988. Ex.P24
is the FIR. He requested the two witnesses from the Government
Department and the original FIR was submitted to the jurisdictional
Magistrate Court. He recorded the statement of PW2 and on
23.01.2002 at about 9.30 am, the Government officials from the
Cooperative Bank and the Public Works Department namely
Kandasamy and Venkatachalam came to the office. They informed
PW2 and as stated by PW2 in the complaint given by him was read
over to the above said witnesses. That was admitted by PW2 as
correct. He also requested the above said witnesses to read the
FIR. PW2 confirmed the correctness of the same. As detailed by
PW2 in his evidence, routine procedural formalities have been
complied. He instructed to visit the office of the Revenue Inspector,
on 23.01.2002 before noon and gave the instruction that when the
money is demanded by the Revenue Inspector, he may hand over
the same and after handing over the same, he must make a signal.
So, as he instructed by him, subsequent happening took place. For
the above said proceedings, he prepared a mahazar at about 10.30
am, along with the police party, PW2 and the official witnesses one
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of the Tirunelveli Municipal Office. He asked PW2 and the witness
Venkatachalam to follow the instructions given by him and that was
happening themselves near the house and office. The witness
Kandasamy was also present along with them. PW2 and
Venkachalam went to the office and later, informed that the
Revenue Inspector was not available in the office at about 5.00 pm.
At about 5.55 pm, as instructed, PW2 came out of the office and
made a signal and immediately, he along with the above said
Kandasamy, police party entered the office and at that time, the
witnesses Venkatachalam also accompanied them. The Revenue
Inspector was identified by Venkatachalam. He introduced them to
be the Revenue Inspector. He prepared a sodium carbonate
mixture and directed the accused Kumaraguru, the Revenue
Inspector to dip his finger in the mixture and it turned red and then
it was put in a container and made a mark and signed in the label.
Again, he prepared another sodium carbonate mixture to dip his
left finger and on dipping, it turned red. They put a mixture in a
sealed container and a label was also pasted and all the witnesses
have been signed. On demand, the accused handed over the
currency note by taking from the left side pant packet. After
receiving the above said currency note, it was compared with the
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mahazar. The pant in which in the currency note kept was also
handed over. The left side of the pant was dipped into sodium
carbonate mixture and it turned red. So that mixture was collected
in a separate container and it was labelled and the witnesses also
signed. The consent petition was handed over by the accused and
that was also recorded. Then, he continued the official formalities.
Then, he inspected the occurrence place and for that purpose, he
prepared a mahazar, on 24.01.2002 at about 9.30 am and he visited
the house of the accused and made a search. Nothing was
recovered or seized. The seizure mahazar is Ex.P10. The accused
was arrested and remanded to judicial custody.
4.The investigation was undertaken by PW17-Ponnudurai
and on 24.01.2002, he took up the investigation and recorded the
statement of witnesses and gave a request to the Tashildar,
Tirunelveli for supplying the documents. On 29.01.2002, he
recorded the statement of witnesses Chokkalingam and Chellappa.
On 01.02.2002, he recorded the statement of the above said
Venkatachalam and on 05.07.2002, he recorded the statement of
Subu, Arul Thambi, Subramanian and on 05.02.2002, he made a
request to send the chemical analysis and after completing the
formalities of investigation, he filed a final report, on 29.07.2002.
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5.PW4 was working as Deputy Tashidhar in Tirunelveli Taluk
Office. He received a petition from PW2 on 21.01.2002 and sent the
same for further action to the Revenue Inspector. PW5 was working
as Manager in the Tamil Nadu Central Cooperative Bank. He
issued the loan Form to PW2 on deposit of challan. PW6 was
working as Junior Assistant during the relevant point of time. He
made enquiry with regard to the petition given by PW2. PW7 was
working as Village Administrative Office during the relevant point
of time and he made a recommendation to the Deputy Tasildhar to
issue the income certificate to PW2. PW8 made an entry for
despatching the petition given by PW2.
6.PW1 was working as District Collector, during the relevant
point of time. He passed the sanction order for prosecuting the
accused. After going through the records, satisfied himself with
regard to the allegations. After completing the witnesses on the
side of the prosecution, the accused was put on question under 313
Cr.P.C. He denied the averments of the prosecution stated 'as
false' and chose to examine four witnesses on his side and one
witness was examined on the side of the Court.
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7.DW3 is the wife of PW2. She has stated in her evidence that
six years prior to her examination, PW2 was married to her and no
other marriage was performed by her husband. In
Poolankudiruppu in Kunathoor Village, PW2 was not owning house
site. A ration card was issued to her family in the address of
Kunathoor. The copy of the ration card was marked as Ex.B2. CW1
was working as Village Administrative Officer in Tirunelveli Pettai
No.1 area and on the basis of the request made by the Vigilance
Department, he made an enquiry with regard to the resident of one
Venkatalakshmi, W/o.Srinivasan in Door No.7, Sakkari Vinayakar
Kovil Street, Pettai and on enquiry, he came to know that the above
said Venkatalakshmi is residing aboard for about five years and in
the above mentioning address, now she is not residing. The
neighbours also informed her that they are not aware of the
address of the above said person.
8.Now after recording process is over and after complying
the other formalities and after hearing the prosecution as well as
the defence, the trial court came to the conclusion that the charge
under Section 7(1) of the Act, which was framed against this
petitioner was not proved beyond all reasonable doubt and
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accordingly, acquitted the accused, by judgment, dated 20.09.2016
made in Special Case No.3 of 2014. Challenging the judgment of
the acquittal, the prosecution has filed this appeal.
9.From the narration and the sequence of events and facts
above, according to the prosecution, the demand of Rs.1,000/-,
acceptance of bribe has been proved by the prosecution beyond
reasonable doubt and the trial court, by relying upon materials
neglected the case and by doubting the genuineness of the PW2,
erroneously acquitted the accused. According to the learned
Additional Public Prosecutor, PW2 and PW3 have clearly narrated
the sequence of events and nothing has been discredited or has
been brought on record during the course of examination.
10.According to the learned Additional Public Prosecutor,
recovery of the tainted amount has been proved by the prosecution
beyond all reasonable doubt and only defence that has been made
by the accused is that the money was received by the accused was
for selling of flag day stamps, so when such a plea has been taken,
in the absence of any proof regarding the collection of money
towards selling of the above said flag day stamps, then
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automatically presumption under section 20 of the Act will come
into operation.
11.Section 7 of Prevention of Corruption Act, 1988 (Before
Amendment reads as follows:-
“7. Public servant taking gratification other than
legal remuneration in respect of an official act.—
Whoever, being, or expecting to be a public servant,
accepts or obtains or agrees to accept or attempts to
obtain from any person, for himself or for any other
person, any gratification whatever, other than legal
remuneration, 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 Government or
any State Government or Parliament or the Legislature of
any State or with any local authority, corporation or
Government company referred to in clause (c) of Section
2, or with any public servant, whether named or
otherwise, shall be punishable with imprisonment which
shall be not less than 2[three years] but which may extend
to 3[seven years] and shall also be liable to fine.
Explanations.—(a) “Expecting to be a public
servant.” If a person not expecting to be in office obtains
a gratification by deceiving others into a belief that he is
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about to be in office, and that he will then serve them, he
may be guilty of cheating, but he is not guilty of the
offence defined in this section.
(b) “Gratification.” The word “gratification” is
not restricted to pecuniary gratifications or to
gratifications estimable in money.
(c) “Legal remuneration.” The words “legal
remuneration” are not restricted to remuneration which a
public servant can lawfully demand, but include all
remuneration which he is permitted by the Government or
the organisation, which he serves, to accept.
(d) “A motive or reward for doing.” A person who
receives a gratification as a motive or reward for doing
what he does not intend or is not in a position to do, or
has not done, comes within this expression.
(e) 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 this service, the
public servant has committed an offence under this
section
12.Section 7 of Prevention of Corruption Act, 1988 (After
Amendment reads as follows:-
7. Offence relating to public servant being bribed.
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—Any public servant who,—(a) obtains or accepts or
attempts to obtain from any person, an undue advantage,
with the intention to perform or cause performance of
public duty improperly or dishonestly or to forbear or
cause forbearance to perform such duty either by himself
or by another public servant; or.
(b) obtains or accepts or attempts to obtain, an undue
advantage from any person as a reward for the improper
or dishonest performance of a public duty or for
forbearing to perform such duty either by himself or
another public servant; or;
(c) performs or induces another public servant to
perform improperly or dishonestly a public duty or to
forbear performance of such duty in ancitipation of or in
consequence of accepting an undue advantage from any
person, shall be punishable, with imprisonment for a term
which shall not be less than three years but which may
extend to seven years and shall also be liable to fine.
13.The prosecution relied upon the judgment of this court in
the case of SP.Chidambaram Vs. The State represented by the
Deputy Superintendent of Police, Vigilance and Anti
Corruption, Trichy, (Criminal Appeal No.18 of 2018), dated
10.07.2018), wherein a similar plea has been raised. The following
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observation has been made in para 34, which is extracted
hereunder:-
“34.The defence of the appellant in this
case is that, on the day of trap there is no demand
on his part and the money received by him was
towards Flag Day donation. Though the
submission appears to carry semblance of
probability it vanishes immediately in the light of
the overwhelming evidence of PW.2, PW.3 and
PW.12. If, there was no demand at all by the
appellant on the day of trap or on previous
occasion i.e., on 17.09.2001 there is no necessity
or need for PW.2 to go to the respondent police
and lodged the complaint. There is no need for
him to take out Rs.2,500/- and give it to the
appellant. If there was no demand either on
17.09.2001 or 20.09.2001 then when PW.2 offered
Rs.2,500/- to the appellant the appellant should
have asked what for he is offering this money.
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Contrarily without posing any query, the
appellant had received the money and kept in his
pocket without even correcting it, or in alternate.
If the appellant has received this money on a
bonafide belief that PW.2 has offered this money
towards Flag Day donation then there must be
some material evidence to indicate altleast PW.2
had prior knowledge about the Flag day
donation. In the absence of such material facts it
is very hard to accept the explanation offered by
the appellant.
39. Rebuttal of Statutory presumption:-
The explanation by producing the circular for
fixing the target for Flag Day donation is no
explanation at all. The Principal of
preponderance of probability can be pressed into
service if the fact propounded by the appellant
probablises the explanation offered. Here the fact
propounded by the appellant is the target of Rs.
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7,000/- fixed by the District Collector for
collection of flag day. However, his action of
receiving Rs.2,500/- from PW.2 who came for
receiving application form and keeping the money
in his pant pocket improbable the fact attempted
to be propounded.”
14.According to the learned Additional Public Prosecutor, the
defence that has been taken by the accused has not been proved.
Mere fact that the flag day stamps were available in the hands of
the accused and as has been during the course of evidence will not
amount to discharge of the presumption and probabilise the
defence. So according to the learned Additional Public Prosecutor,
in the absence of any material to show that the accused intention is
to sell the fag day stamps to PW2, in the absence of any material to
show that such a request was made to PW2 for purchasing the
stamps, then the plea that has been taken by the defence that the
money was received only for the purpose of selling flag day stamps
is totally false in nature and should not be accepted.
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15.To prove the case, simultaneously, he relied upon the
judgment of the Hon'ble Supreme Court, which is a recent one in
the case of N.Vijaya Kumar Vs. State of Tamil Nadu (Criminal
Appeals No.s.100-101 of 2021, dated 03.02.2021. Now it is
more or less well settled that mere recovery of the money will not
prove the offence under Section 7(1) of the Act. So according to
the learned counsel appearing for the accused, when a probable
defence has been taken by the accused person, that must be
accepted and he would further submit that as contested before the
trial court, PW2 is not a genuine person and he himself being
creator of forged document and a creator of a fictitious personality
for the purpose of obtaining the loan from the Government Scheme,
his evidence has been rightly discarded by the trial court. So
according to him, when mere mala fide nature of PW2 and his
character and conduct under cloud, the evidence has been rightly
rejected by the trial court. Under the circumstances, the only
probable conclusion that has been reached by the trial court
without any proper reason, this court should not upset the finding
of the trial court in the case of appeal against acquittal. It has been
more or less well settled in a catena of the decisions, we need not
reproduce all those things once again.
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16.Now the simple question arises for consideration is
whether in the factual circumstances, the offence under section
7(1) of the Act has been attracted or not. After hearing, the
argument on both sides, this court put a specific question to the
learned Additional Public Prosecutor. The reason being that PW2
was not owning a house site in the above said village called as
'Poolankudiruppu' in Kunathoor Village and he was not having the
second wife in that village. When that being so, how a
recommendation has been made by the Village Administrative
Officer to issue the income certificate. This facts is also not
explained. Because on the face of it, the request that has been
made by PW2 for sanctioning loan under the Government Scheme
itself is totally a false one. So in all probabilities, not only the
Village Administrative Officer, who recommended, but the accused
himself would have been rejected. Demanding and accepting of the
money for this particular purpose will come under Section 7 of the
Act. Because the basic ingredients under Section 7 of the Act is
that the acceptance of the illegal gratification for performing the
public duty. So non-granting of income certificate to an ineligible
person will come under in-performance of public duty. But it
appears that the Investigation Officer has not concentrated on this
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point or in a particular way and whether he was eligible to claim
such benefit under a particular Government Scheme or not.
Probably that was not projected during trial. Whatever it may be,
the ration card has been created with a bogus personality
mentioning as the second wife. It has been totally denied by the
wife of PW2 that no second wife is available to PW2. So, the
evidence of PW2 has been rejected by the trial court, finding that it
is unbelievable and he is not a genuine person. Even though the
defence that has been taken, it has not been probablized, the
genuineness of the prosecution in the offence of such a nature, play
a vital role. The fraudulent person cannot be believed to sustain a
conviction of a public servant. The above said evidence of PW2 has
been rightly rejected by the trial. When the evidence of PW2 is
rejected, naturally the demand also fails. When the demand fails,
mere acceptance of money and recovery of the same from the
accused are not enough to sustain a conviction as held by the
Hon'ble Supreme Court in the judgment as mentioned above.
17.Let we reproduce the judgment of the Hon'ble Supreme
Court for better appreciation of this case. The Hon'ble Supreme
Court in the case of B.Jayaraj Vs. State of Andhra Pradesh
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(2014)13 SCC 55 has discussed in detail about the position:-
“7.Inso far as the offence under section
7 is concerned, it is a settled position of law
that demand of illegal gratification is sine qua
non to constitute the said offence and mere
recovery of currency notes cannot constitute
the offence under Section 7 unless it is proved
beyond all reasonable doubt that the accused
voluntarily accepted the money knowing it to
be a bribe. The above position has been
succinctly laid down in several judgments of
this Court. By way of illustration reference
may be made to the decision in C.M.Sharma V.
State of A.P [(2010)15 SCC 1 : (2013)2 SCC
(Cri) 89) and C.M.Girish Babu V. CBI [(2009)3
SCC 779 : (2009)2 SCC (Cri) 1].
8.In the present case, the complainant
did not support the prosecution case insofar
as demand by the accused is concerned. The
prosecution has not examined any other
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witness, present at the time when the money
was allegedly handed over to the accused by
the complainant, to prove that the same was
pursuant to any demand made by the
accused. When the complainant himself had
disowned what he had stated in the initial
complaint (Ext.P-11) before PW9, and there is
no other evidence to prove that the accused
had made any demand, the evidence of PW1
and the contents of Ext.P-11 cannot be relied
upon to come to the conclusion that the above
material furnished poof of the demand
allegedly made by the accused. We are,
therefore, inclined to hold that the learned
trial court as well as the High Court was not
correct in holding the demand alleged to be
made by the accused as proved. The only
other material available is the recovery of
tainted currency notes from the possession of
the accused. In fact such possession is
admitted by the accused himself. Mere
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possession and recovery of the currency notes
from the accused without proof of demand
will not bring home the offence under Section
7. The above also will be conclusive insofar as
the offence under Section 13(1)(d)(i) and (ii)
is concerned as 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
things on pecuniary advantage cannot be held
to be established.
9.Insofar as the presumption
permissible to be drawn under Section 20 of
the Act is concerned, such presumption can
only be in respect of the offence under
Section 7 and not the offence under Sections
13(1)(d)(i) and (ii) of the Act. In any event, it
is only on proof of acceptance of illegal
gratification that presumption can be drawn
under Section 20 of the Act that such
gratification was received for doing or
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forbearing to do any official act. Proof of
acceptance of illegal gratification can follow
only if there is proof of demand. As the same
is lacking in the present case the primary
facts on the basis of which the legal
presumption under Section 20 can be drawn
are wholly absent. “
18.So the another point that is brought to be noticed is that
as mentioned earlier, PW2 is not only created a forged document,
but also fixed the personality showing her as the 2nd wife. So the
Investigating Officer ought to have investigated those matters also
and ought to have booked PW2 for fabrication of false records etc.
But it appears that the Investigating Officer has not taken that
course. They did not even verified the genuineness of the petition
given by PW2 for claiming Government Scheme. So if at all, PW2
must also be considered as an accomplice. This evidence is a weak
piece of evidence, which should not be taken as a graceful truth.
That is the reason also, I am unable to accept the evidence of PW2
regarding the demand that has been allegedly made by the 2nd
respondent herein.
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19.The last point is that whether it was the probable view in
the facts and circumstances or not. The Hon'ble Supreme Court is
on the point that simply because a view is erroneous in nature,
unless it is found to be not a probable view, the High Court cannot
interfere. Here, not only the view that has been expressed by the
trial court is a probable view, but also considering the character
and conduct of PW2, the view that has been taken by the trial
court, in the considered view of this court is also a correct one. So
the judgment of the trial court requires no interference by this
court.
20.In fine, this criminal appeal fails and the same is
dismissed, confirming the impugned judgment passed by the trial
court.
30.11.2021
Index:Yes/No
Internet:Yes/No
er
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Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall be
the responsibility of the
advocate/litigant concerned.
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G.ILANGOVAN, J
er
To,
1.The Special Court for trial
of cases under Prevention
of Corruption Act,
Tirunelveli.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.A(MD)No.109 of 2017
30.11.2021
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