Madras High Court

G. Sengamalam vs State Rep. By on 27 January, 2022

Criminal Appeal No.365 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.01.2022

CORAM:

THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN

Criminal Appeal No.365 of 2016

G. Sengamalam .. Appellant

State rep. By
Inspector of Police,
Vigilance and Anti Corruption
Chennai City-I Detachment,
Chennai 28
Crime No.2/A.C./2006 .. Respondent

Prayer:- Criminal Appeal filed under Section 374(2) Cr.P.C., to set aside

the judgment dated 28.04.2016 made in Special Case No.2/2008 on the file

of Special Judge cum Chief Judicial Magistrate, Chengalpattu.

For Appellant : Mr. V. Ramamurthy,
for Mr.Radha Pandian

For Respondent : Mr. C.E. Pratap,
Government Advocate (crl.side)

JUDGEMENT

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Criminal Appeal No.365 of 2016

The appellant is the sole accused in S.C.No.2 of 2008 on the file

of Special Judge cum Chief Judicial Magistrate, Chengalpattu. He stood

charged for the offences under Sections 7 & 13(1)(d) r/w. 13(2) of

Prevention of Corruption Act, 1988.

2. By a judgment dated 28.04.2016, the trial Court, convicted

and sentenced the appellant as detailed below:-

Section of law Sentence 7 of Prevention of Corruption Simple imprisonment for Act 1988 three years and to pay a fine of Rs.5000/-, in default, to undergo simple imprisonment for six months .

13(1)(d) r/w. 13(2) of Simple imprisonment for four Prevention of Corruption Act years and to pay a fine of 1988 Rs.5000/-, in default, to undergo simple imprisonment for six months .

The trial Court has ordered the above sentences to run concurrently.

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Criminal Appeal No.365 of 2016

3. Challenging the said conviction and sentence, the appellant is

before this Court with this Criminal Appeal.

4. The case of the prosecution is that, P.W.2 is the owner of a

TATA Indica Car. P.W.4 is his driver. On 30.05.2006, P.W.2's car has

met with an accident dashing against another car, and heavily damaged.

Hence, P.W.2 and the other offending car owner have given two separate

complaints. Thereafter, both the car owners compromised between

themselves that they will claim compensation from the Insurance

Company. For that purpose, they required a Insurance Claim Certificate

from the police. On 02.06.2006, P.W.4, went to the Police Station, where,

the accused, Head Constable, Grade-I, demanded a sum of Rs.2,000/- as

bribe for issuing the Insurance Claim Certificate. Immediately, P.W.4

called P.W.2, and informed the same and also handed over the phone to

the accused. Then P.W.2, talked to the accused and the accused agreed to

reduce the amount to Rs.1000/-as bribe. Not willing to give the bribe, on

the same day, at about 2.15 p.m., both P.W.2 and P.W.4, went to the

respondent police, and, he lodged a complaint. Based on the complaint

(Ex.P.2), First Information Report (Ex.P.3) was registered and a trap was

arranged with a shadow witness, P.W.3. Then both P.W.2 and P.W.3 https://www.mhc.tn.gov.in/judis

Criminal Appeal No.365 of 2016

went to the police station with the phenolphthalein coated money. At that

time, the accused was not there and hence, they called the accused over

mobile phone and asked him to come to police station at about 7.00 p.m.

The accused came there and took P.Ws.2 and 3 to the room, which was

used by them to take rest, and he handed over the certificate. Thereafter,

the accused asked about the bribe money, P.W.2, handed over the money

to the accused and he kept the amount in his pant pocket. Immediately, the

trap laying team, went inside and the petitioner was caught red handed and

the money was recovered from the accused. Thereafter, phenolphthalein

test was conducted, which turn positive. After completing all the legal

formalities, the accused was arrested. After completion of investigation,

final report has been filed. Hence, the charge.

5. Based on the above materials, the trial Court framed charges,

as detailed in the first paragraph of this judgment, against the accused.

The accused denied the same.

6. In order to prove the case, on the side of the prosecution, as

many as 11 witnesses were examined and 10 documents were exhibited

and produced 5 material objects.

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Criminal Appeal No.365 of 2016

7. Out of the witnesses examined, P.W.1 is the Sanctioning

Authority and he has granted sanction for prosecution. P.W.2 is the defacto

complainant. According to him, the accused has demanded a sum of

Rs.1000/- as bribe for issuing the Insurance Claim Certificate and hence,

he lodged a complaint. Based on that, a trap was arranged and while he

handed over the money, the accused was caught red handed. P.W.3 is the

shadow witness. He accompanied P.W.2 and he has also spoken about the

handing over of money to the accused. P.W.4 is a driver of P.W.2, to

whom, the original demand was made. However, he turned hostile. P.W.5

is the writer in the concerned police station. He has registered the original

complaint in CSR No.286 of 2006 in respect of accident. P.W.6 is the

Head Constable. He has prepared the Insurance Claim Certificate. P.W.7

is the Inspector of Police, who signed in the Insurance Claim Certificate

(Ex.P.5). P.W.8 is the Scientific Officer working in the Forensic Lab,

Chennai, conducted phenolphthalein test and given a report Ex.P.8.

P.W.9 is the Inspector, who registered the complaint and conducted trap.

P.W.10 is the investigating officer, who has conducted investigation and

handed over the same for further investigation to P.W.11, Inspector, he has

conducted further investigation and filed a final report. https://www.mhc.tn.gov.in/judis

Criminal Appeal No.365 of 2016

8. When the above incriminating materials were put to the

accused under Section 313 Cr.P.C., he denied the same as false. However,

he did not examine any witness nor mark any documents on his side.

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

convicted the appellant/accused as stated in the first paragraph of this

judgment. Challenging the same, the appellant is before this Court with this

Appeal.

10. The learned counsel appearing for the appellant submitted

that, the prosecution has failed to prove the demand and acceptance. As

per the prosecution, the original demand was made to P.W.4, driver of

P.W.2. Thereafter, P.W.2 talked to the accused, where he demanded

bribe. and given a complaint. However, P.W.4, from whom the original

demand said to be made turned hostile and the mobile phone, through

which, P.W.2 talked with the accused was not seized, and no call details

have been recovered and marked before the Courts. That apart, P.W.2,

admitted in the cross examination that he was not able to confirm the

person to whom he had talked. Hence, the demand was not properly

proved by the prosecution. So far as the acceptance is concerned, P.W.3, https://www.mhc.tn.gov.in/judis

Criminal Appeal No.365 of 2016

the shadow witness, said to have accompanied P.W.2, in the cross

examination, he had admitted that he did not go inside the police station. It

is P.W.2, alone went there and handed over the money. Even, from the

evidence of P.W.2, the accused has handed over the certificate to P.W.2,

thereafter, he said to have demanded the bribe. It probablize the case of

the accused that the money has been forcibly inserted in the pant pocket of

the accused.

11. The learned counsel further submitted that, since the demand

was not proved by the prosecution, based on the recovery alone, the

petitioner cannot prosecuted, and the presumption under Section 20 of the

Act will not come into play. He further submitted that, there is also serious

doubt regarding the registration of the First Information Report. According

to P.W.9, the complaint has been given at 10.30. a.m., on 02.06.2006,

where as Ex.P.3, First Information Report was registered at 2.45

p.m.,which also creates a doubt about the genuineness of the complaint

given by the petitioner. The trial Court, without considering all those facts,

erroneously convicted the appellant.

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Criminal Appeal No.365 of 2016

12. Per contra, the learned Government Advocate (crl.side)

appearing for the respondent submitted that the evidence available on

record clinchingly shows that it is only the appellant prepared the

Insurance Claim Certificate and for that, he demanded bribe. Even though

P.W.4, turned hostile, from the evidence of P.W.2, it is proved that the

accused made a demand through P.W.2. Thereafter, the trap was arranged

and he was caught red handed, phenolphthalein test also proved positive.

There is no plausible explanation on the accused regarding the recovery.

As the prosecution has clearly proved the demand and recovery, the

presumption under Section 20 of the Act will come into play and

absolutely, there is no materials to rebut the presumption in this case.

Considering all those circumstances, the trial Court rightly convicted the

accused and there is no reason to interfere with the well considered

judgment of the Trial Court.

13. This Court considered the submissions made on either side

and perused the materials available on records carefully.

14. The primordial contention of the learned counsel appearing

for the appellant is that the prosecution has failed to prove the demand, https://www.mhc.tn.gov.in/judis

Criminal Appeal No.365 of 2016

and in the absence of any proof for demand, the appellant cannot be

convicted based on recovery alone. According to the prosecution to issue an

Insurance Claim Certificate, the accused demanded bribe from P.W.4, the

driver of P.W.2. However, P.W.4 turned hostile. From the evidence of

P.W.2, it is admitted that originally, the demand was made to P.W.4 at the

police station, in turn, P.W.4 called P.W.2 and informed the same through

mobile phone and in turn, P.W.2 talked to the accused from the mobile

phone of P.W.4, where the accused reduced the bribe amount to Rs.1000/-

and demanded him to pay the same. Admittedly, the demand was not

made in person to P.W.2 and the demand was made only through the

mobile phone of P.W.4. As rightly contended by the learned counsel for the

appellant, the alleged mobile phone was not seized by the police and call

details record was not collected and produced order before the Court to

show that P.W.2, has talked with the accused. That apart, in the cross

examination, P.W.2 has clearly admitted that, while he met the accused in

person at the police station, earlier, he did not made any demand. Only

through the mobile phone of P.W.4, he made a demand and he further

stated that he is not able to confirm that only this accused has talked to him

over mobile phone. P.W.2 further admitted in the cross examination that

while handing over the Insurance Claim Certificate, he has not made any https://www.mhc.tn.gov.in/judis

Criminal Appeal No.365 of 2016

demand, further he confirmed that he was very sure that it is only this

accused has demanded the bribe through phone. In the chief examination,

P.W.4 also did not say anything about the accused. He simply says that

some police men has demanded money from him. He did not specifically

mentioned about the demand.

15. Considering those circumstances, this Court is of the

considered view that the prosecution has not proved the demand of bribe

amount. Even assuming that the bribe amount has been accepted by the

accused during the recovery, in the absence of any proof for demand of

illegal gratification mere recovery is not sufficient to convict the accused.

16. That apart, in respect of presumption under Section 20 of the

Act, the presumption could be drawn on the proof of the acceptance of

illegal gratification for doing or forbearing to do any official act and proof

of acceptance of illegal gratification would follow only if there is a proof of

demand. In the said circumstances, in the absence of any proof for

demand, the presumption under Section 20 of the Act will not come into

play. The Hon'ble Supreme Court in the case of I B. Jayaraj /vs/ State of

Andhra Pradesh in CDJ 2014 SC 255 has held as follows : https://www.mhc.tn.gov.in/judis

Criminal Appeal No.365 of 2016

"8. In the present case, the complainant did not

support the prosecution case in so far as demand by

the accused is concerned. The prosecution has not

examined any other 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 (Ex.P.11) before L.W.9,

an there is no other evidence to prove that the accused

had made any demand, the evidence ofo P.W.1 and the

contents of Ex.P.11 cannot be relied upon to come to

the conclusion that the above material furnishes proof

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

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Criminal Appeal No.365 of 2016

recovery of the tainted currency notes from the

possession of the accused. In fact such possession is

admitted by the accused himself. Mere 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 in so far as the offence under Section

13(1)(d)(i)(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 thing or

pecuniary advantage cannot be held to be established.

9. In so far 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 offences under Section

13(1)(d)(i)(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

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Criminal Appeal No.365 of 2016

that such gratification was received for doing or

forbearing to do any offficial 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. "

17. Similar view was taken by the Hon'ble Supreme Court in

2016 (3) SCC 108 has held as follows:

" It is well settled position of law that the

demand for the bribe money is sine qua non to convict

the accused for the offences punishable under

Sections 7 and 13(i)(d) read with Section 13(2) of the

PC Act. The same legal principle has been held by

this Court in the case of B.Jayaran (supra). A. Subair

(supra) and P.Satyanarayana Murthy (supra) upon

which reliance is rightly placed by the learned senior

counsel on behalf of the appellant. the relevant

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Criminal Appeal No.365 of 2016

paragraph 7 from B. Jayaraj case(supra) reads thus:

"7. In so far as the offence under Section 7 is concerned, it is a settled position in 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. and C.M.Girish Babu v. CBI."

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

considered view that the prosecution has miserably failed to prove the guilt

of the accused beyond reasonable doubt. Without considering all those

materials, the trial Court erroneously convicted the appellant/accused.

Hence, the appellant is entitled for acquittal and the judgment of the court

below is liable to be set aside.

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Criminal Appeal No.365 of 2016

19. In the result, the Criminal Appeal is allowed and the

conviction and sentence imposed on the appellant by the learned Special

Judge cum Chief Judicial Magistrate, Chengalpattu in S.C.No.2 of 2008,

by the judgment dated 28.04.2016, is hereby set aside, and the appellant is

acquitted from all the charges levelled against him.

27.01.20

mrp

Index:yes/no Speaking order/non speaking order