Madras High Court

C.Varadappan vs State on 6 December, 2023

Author: A.D.Jagadish Chandira

Bench: A.D.Jagadish Chandira

                                                                                   Crl.A.No.331 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 06.12.2023

                                                       CORAM :

                           THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA

                                                  Crl.A.No.331 of 2016

            C.Varadappan                                      ...              Appellant

                                                            Vs.

            State, Represented by
            The Deputy Superintendent of Police,
            Vigilance and Anti Corruption Department,
            Dharmapuri. Crime No.07/AC/2004           ...                      Respondent

            Prayer:This Criminal Appeal has been filed under Section 374 of Criminal
            Procedure Code against the judgment of the learned Chief Judicial Magistrate,
            Dharmapuri in Spl.C.C.No.13/2008 dated 02.04.2016.


                                      For Appellant     :     Mr.R.Rajarathinam
                                                              Senior Advocate
                                                              for Mr.V.Rajamohan

                                      For Respondent    :     Mr.S.Udaya Kumar
                                                              Government Advocate (Crl. Side)

                                                       JUDGMENT

Challenging the judgment of conviction and sentence dated 02.04.2016 in

Spl.C.C.No.13 of 2008 by the Chief Judicial Magistrate, Special Court, Dharmapuri, the

present criminal appeal has been filed.

https://www.mhc.tn.gov.in/judis

2. The offences for which the appellant was convicted and the sentences imposed

upon the appellant are as follows:-

            Section of Law                       Sentence Imposed
            Section 7 of Pevention            of Rigorous Imprisonment for one year and a fine of
            Corruption Act, 1988                 Rs.2,000/-, in default, to undergo three months
                                                 Simple Imprisonment.

Section 13(2) r/w 13(1)(d) of Rigorous Imprisonment for one year and a fine of Prevention of Corruption Act, 1988 Rs.2,000/-, in default, to undergo three months Simple Imprisonment.

The period of detention already undergone by the accused from 29.09.2004 to

07.10.2004 was ordered to be set off under section 428 Cr.P.C. and both the sentences

were directed to run concurrently.

3. The case of the prosecution is that the accused was working as Village

Administrative Officer of Gujjarahalli Village, Palacode Taluk, Krishnagiri District from

16.09.2004 to 28.09.2004 and hence, he is a public servant under Section 2(c) of the

Prevention of Corruption Act, 1988. The Defacto complainant PW3 Raja is a resident of

Upparahalli Village. He and his father had jointly owned 1.45 Acres of land. Since he

wanted to get an electricity connection for the Pump Set to be laid in his agricultural

well, he had approached the Tamil Nadu Electricity Board Office at Gujjarahalli Village,

where he was advised to get the revenue documents namely Chitta, Adangal, Receipts

and FMB Sketch and he was also asked to submit the application form. The defacto

complainant PW3 in order to get those documents had approached the accused, who was

the Village Administrative Officer of Gujjarahalli Village. The accused had replied that https://www.mhc.tn.gov.in/judis

he would be able to furnish those documents only after inspecting the land and the well

pursuant to which, on 25.09.2004 at 10.00 am, the accused had visited the land and the

well and noted down the features and he had advised the defacto complainant PW3 to

bring the application form for the electricity connection. At that time, the accused had

demanded Rs.1,600/- as illegal gratification for the issuance of the above said documents

by him. The defacto complainant PW3 had requested to reduce the amount and thereby,

the accused had agreed to receive a sum of R.1,500/-. On the same day at 11.00 a.m., the

defacto complainant PW3 had gone to the office of the accused with the application form

and the accused had received the application form and patta pass book from the defacto

complainant PW3 and had asked him to bring his father PW5 also and reiterated his

demand of Rs.1,500/- and asked the defacto complainant PW3 to come with the money.

The defacto complainant PW3 was not inclined to give the bribe amount as demanded

by the accused. Hence, he had gone to the office of the respondent on 28.09.2004 at 9.00

a.m. and had given a oral complaint Ex.P15, which was reduced into writing by the

Inspector of Police PW11, who registered a case in crime No.07/AC/2004 for the offence

under Section 7 of Prevention of Corruption Act, 1988 on the ground of demand of

illegal gratification on the same day at 9.30 a.m. The FIR is Ex.P26.

4. After registering the case, PW11 conducted a discreet enquiry about the conduct

of the accused as well as PW3. Thereafter, he summoned two official witnesses by

sending a requisition letter. PW2 Mr.Kathirvel, Junior Assistant of Fisheries department

and Mr.Kuppusamy (not examined) Librarian from Dharmapuri Central Library https://www.mhc.tn.gov.in/judis

appeared before PW11 in response of the requisition letter given by him. The defacto

complainant PW3 was introduced to the witnesses by PW11. The copy of the FIR was

handed over to the witnesses and they were asked to peruse the same and clarify the

details. Thereafter, PW11 had asked PW3 whether he had brought Rs.1,500/- which was

demanded by the accused. PW3 produced two notes of Rs.500/- denomination and five

notes of Rs.100/- denomination. The currency notes are MO.1 series. The serial numbers

of the currency notes were noted down. Then a mock phenolphthalein test was

conducted by PW11 and the importance of the test was explained to the witnesses.

Remaining phenolphthalein powder was packed in a cover (MO2) and the Sodium

Carbonate powder was also collected in the cover and sealed (MO3). Then PW11

handed over the currency notes tainted with Phenolphthalein powder to PW3 and asked

him to safely keep it in his shirt pocket. Both MO2 and MO3 were signed by the

witnesses after they were sealed. PW3 was instructed to go and meet the accused and

hand over the money only if the accused demanded the money. Then PW3 was

instructed to show signal by combing his hair thrice if the accused had received the

money. PW2 was also instructed to accompany PW3 as a shadow witness to watch the

happenings during the Trap. PW11 verified and assured that PW3 was not having any

other money in his pocket. The solution was poured down and destroyed. A Mahazar

was drawn to the effect of above said happenings and entrustment and that is Ex.P2.

PW2, PW3 and Kuppusamy signed in the Mahazar.

5. Thereafter PW2, PW3, PW11 and Kuppusamy and other police constables https://www.mhc.tn.gov.in/judis

proceeded to the office of the accused at 11.45 a.m. They reached the office at 12.40

p.m. PW2 and PW3 were sent inside the office and the other official witness was asked

to wait outside the office to watch the proceedings. At 12.50 p.m. PW3 came out and

informed PW11 that he got the information from the Village Assistant Munirathinam

(not examined) that the accused had gone to the Thasildar Office at Palacode. Then the

trap team proceeded to Palacode and reached the Thasildar office at 1.25 p.m. PW2 and

PW3 were sent inside the office to meet the accused. PW3 requested the accused to give

the documents. The accused had demanded the amount and also asked PW3 to bring his

father. PW3 had come out of the office and informed PW11. PW3 was instructed to

bring his father and accordingly, PW3 brought his father to the Thasildar office at 3.40

p.m. PW2, PW3 and father of PW3 (PW5) met the accused who was standing near the

gate at Thasildar office. On seeing them the accused demanded the money, PW3 handed

over the tainted currency notes of Rs.1,500/- to the accused and the accused received it

and kept it in his inner shirt pocket on the left side. The accused further told that he was

having the documents in his bag inside the office and asked PW3 to follow him. PW2 &

PW3 came out and shown the prearranged signal of combing his hair. Based on the

signal, the trap team rushed to PW3 and asked him to identify the accused, who was

standing near a table inside the office. PW11 asked PW3 to go home and come back to

the Vigilance office on the next day. Then PW11 introduced himself and the other team

members to the accused who got agitated over that. The accused was asked to sit in A2's

chair, which was vacant. Thereafter, PW11 prepared Sodium Carbonate Solution in two

glass tumblers and the accused was asked to dip his fingers of both his hands in the https://www.mhc.tn.gov.in/judis

solutions. Both the solutions turned pink and they were collected and sealed. The

solution in respect of right hand fingers is MO 4 and the solution in respect of left hand

fingers is MO5. Then the accused was asked to produce the tainted notes which he

received from PW3. The accused had produced the notes from his left side inner shirt

pocket. Kuppusamy was asked to count the notes and also verify the serial numbers of

the currency notes as entered in the Entrustment Mahazar Ex.P2. On verification, the

serial numbers of the currency notes produced by the accused with the serial numbers of

the currency notes entered in the entrustment mahazar, Ex.P12, they tallied. When the

accused was questioned as to whether he was having any other money, he handed over

Rs.450/- from the very same inner shirt pocket. The money was returned to the accused.

Thereafter, a change over shirt was given to the accused and the shirt worn by the

accused at the time of occurrence was taken for test. PW11 prepared another sodium

carbonate solution and the inner pocket of the shirt owned by the accused, was dipped in

that solution. The solution turned pink and it was collected and sealed under MO6. The

shirt was marked as M.O.7. PW11 asked for the documents required to be furnished to

P.W.3. The accused took them out from his green color rexin bag. PW11 found patta

book No.144 (Ex.P10) and application form for getting electricity connection duly filled

by the accused mentioning the date as 27.09.2004 with seal, which is marked as Ex.P3.

Apart from that, Computer Patta Ex.P11, Adangal Ex.P9 and FMB Sketch Ex.P4 all

signed by the accused were also there. In addition to that, certificate regarding the fact

that PW3's land was not situated within 200 metres from PWD Canal Ex.P5, ownership

of the well Ex.P6, land boundaries Ex.P7 and No Tax Due certificate Ex.P8 were found. https://www.mhc.tn.gov.in/judis

All the documents were seized and the accused was arrested at 5.40p.m. A Mahazar

Ex.P12 was drawn for the seizure of the above said material objects and documents and

Ex.P12 was signed by Kuppusamy and Manimegalai, the Thashildar PW4. The accused

also signed in Ex P12 . Thereafter, PW11 prepared a rough sketch of the place of

occurrence Ex.P13. Thereafter, the trap team went to search the accused house after

getting prior permission from the Chief Judicial Magistrate Ex.P27. No incriminating

material was found in the house of the accused and the said Search Mahazar is Ex.P14.

Thereafter, PW11 had handed over the investigation to one Muthusamy and he had sent

the seized articles to the Court through Form 95 Ex.P20 and he had given a requisition

letter Ex.P21 to the Court to send the seized articles to the Forensic Science Department.

Muthusamy had also given an application Ex.P23 to get back the remaining material

objects and thereafter, on completing the investigation and after obtaining sanction for

prosecution from PW1, Muthusamy had filed the final report on 12.10.2005 against the

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

Corruption Act, 1988 before the Chief Judicial Magistrate, Dharmapuri and the same

was taken on file in C.C.No.02 of 2006 on 13.03.2008. However, since Muthusamy

passed away before the commencement of trial, he was not examined and his signature

in the final report was marked through PW11.

6. On issuance of summons, the accused appeared before the Chief Judicial

Magistrate, Dharmapuri and the copies were furnished to the accused in due compliance

of Section 207 Cr.P.C. Thereafter, the case was made over to Special Court/Chief https://www.mhc.tn.gov.in/judis

Judicial Magistrate, Dharmapuri, which was taken on file in Spl.C.C.No.13 of 2008.

7. After hearing both sides, charges were framed against the accused on

12.07.2006 for the offences under Sections 7, 13(2) r/w 13(1) (d) of Prevention of

Corruption Act, 1988. The accused denied the charges.

8. On the side of the prosecution, P.Ws.1 to P.W.11 were examined and Exs.P1 to

P27 and M.Os.1 to M.O.7 were marked.

9. Based on the incriminating materials, when the accused was questioned under

Section 313 Cr.P.C, the accused pleaded not guilty and on the side of the accused, DW1

Munisamy was examined and no documentary or material objects were marked.

10. The trial Court, after hearing the arguments of the prosecution as well as the

defence, found the accused guilty and sentenced him to undergo imprisonment and pay

the fine as stated above. Challenging the judgment of conviction and sentence imposed

by the trial Court, the present criminal appeal has been filed.

11. Mr.Rajarathinam, the learned senior counsel appearing for the appellant, after

taking this court through the evidence on record, assailed the impugned judgment of

conviction on the following grounds:

(a) The trial Court, without proper appreciation of the evidence and without the https://www.mhc.tn.gov.in/judis

prosecution proving the case beyond the reasonable doubt, had found the accused guilty.

(b) It is a settled position in law that for the offence under Sec 7 of the PC Act is

concerned the demand of illegal gratification is a sine qua non to constitute the offence

and mere recovery of currency cannot constitute the offence unless it is proved beyond

all doubts that the accused voluntarily accepted the money knowing it to be bribe and

thereby the presumption under Section 20 of the PC Act can be drawn against the

accused only after the demand for and acceptance of illegal gratification is proved

beyond all reasonable doubts.

(c) PW3/the defacto complainant cannot be believed to be a trustworthy and

reliable person and his evidence does not inspire confidence. The trial court erred in not

taking note of the false statements, factual suppressions and the exaggerations made by

PW3 with regard to the alleged demand stated to be made by the Appellant on

25.09.2004 during inspection which is denied by DW1 who is none other than the cousin

of PW3.

(d) Admittedly, the land, for which, the revenue documents were sought for, is not

an independent property and it is a property jointly owned by the defacto complainant

/PW3 and his father PW5 and thereby, the appellant had insisted for the presence of the

joint patta holder and they have to necessarily sign in the application Ex.P3 in the

presence of VAO. PW3 had insisted for issuance of certificate without producing his

father and since the accused refused for the same PW3 was antagonized resulting in him

giving a false complaint.

(e) As per the claim of PW3/defacto complainant, an inspection was stated to have https://www.mhc.tn.gov.in/judis

been done by the appellant and one Munusamy, relation of the de facto complainant on

25.09.2004 at 10.00 AM and during that time and accused is said to have demanded

Rs.1600/- as illegal gratification and that later it was reduced to Rs.1500/-. The said

Munusamy was examined as DW1 and has not supported the claim of PW3 with regard

to the demand said to have been made on 24.09.2004. The reason for the appellant not

issuing the NOC is that he had insisted the presence of the PW3’s father for issuing

certificates. PW3 had suppressed the fact that he met the accused on 27.09.2004 and on

the same day, the accused had obtained his signature in the application Ex.P3 and since

his father was not present, the accused was unable to issue the certificate on the same

day. The appellant had filled up all other particulars and the signature of the joint patta

holder of the lands was only pending. PW3 had willfully suppressed to mention the same

in his complaint. Further, PW3 had failed to bring his father on 27.09.2004 as well as on

28.09.2004 and the accused had in fact sent back PW3 to bring his father to sign in the

application and thereby the predetermined trap fixed at 1.25 p.m got aborted.

(f) The entire trap proceedings were stage managed and the presence of

PW2/official shadow witness in the vigilance office even before registering the FIR

Ex.P26 also creates a doubt. Admittedly, PW3 is stated to have met the accused on

28.09.2004 at Tahshildar's Office at Palacode at 1.25 p.m. and the accused had sent back

PW3 to bring his father and if it had been the intention of the appellant to take illegal

gratification, he would have received the money during the first meeting itself at 1.25

p.m itself.

(g) Strangely, in this case, the official shadow witness (LW3) was examined as https://www.mhc.tn.gov.in/judis

PW2 prior to the examination of the defacto complainant (LW2) who was examined as

PW3. Admittedly, as per the evidence of PW3/defacto complainant, the FIR Ex.26 was

registered between 10.30 a.m. and 11.30 a.m., whereas PW2 had deposed that he was

called at 10.00 am to assist the trap team. PW11 the Inspector/Trap Laying Officer has

stated that the oral complaint given by the defacto complainant was reduced into writing

by him and thereafter, he himself had registered the FIR. The material contradictions

with regard to the oral complaint being given and the case being registered thereafter

would show that it is more probable that the FIR could have been registered only at

11.30 a.m. and thereby, the summoning of the official shadow witness even before the

registration of the FIR creates a doubt. The material contradictions in the evidence of the

witnesses would show that the entire trap proceeding is shrouded with mysteries and

suspicion. The non examination of the Village Assistant Munirathinam creates a doubt

with regard to the manner in which the trap proceedings were conducted. There are

material contradictions in the evidence of PW2, PW3 and PW11 with regard to the

presence of the accused in the Tahsildar office at 1.30 p.m. Further, the material

contradictions in the evidence of PW2, PW3, PW5 and PW11 with regard to the

presence of the accused in the Tahsildar's office at 3.40 p.m. is also doubtful and PW9,

the official witness, has stated that the accused was present at the office at 3.00 p.m. and

he was forced to sit in A2's chair by PW11.

(h) The prosecution is not clear as to the place, where the appellant is alleged to

have received the bribe money. Though the appellant is stated to have received the

money outside the gate of the Tahsildar’s office, there is no reference about any gate or https://www.mhc.tn.gov.in/judis

compound wall in the rough sketch Ex.P13. Further, the evidence of PW9, the Zonal

Deputy Tahsildar also creates a doubt with regard to the recovery proceedings. When

such being so, the case as projected by the prosecution regarding the place of

occurrence, more particularly the place of alleged acceptance of money and the recovery

is doubtful. In such circumstances the non compliance of Rule 49 of the DVAC Manual

in strict sense assumes significance and creates a dent in the prosecution with regard to

demand and recovery.

(i) PW3, the defacto complainant is an interested witness in the prosecution case

and his evidence has to be scrutinized carefully and unless his evidence is corroborated

by other oral and material evidence, the case of the Prosecution should not be accepted.

(j) PW5 the father of the defacto complainant has no where deposed about the

presence of PW2/ the official shadow witness in his entire evidence thereby creating a

doubt about his presence at the time of trap and it is also unnatural that PW3 defacto

complainant has not spoken about the reason for taking PW5 to the office.

(k) The learned senior counsel would further submit that it is the case of the

appellant in defence that the money was planted in his shirt pocket, whereas it is the case

of the prosecution that the appellant received the money and had kept the tainted money

in the inside shirt pocket and on demand, he had taken the money and handed it over to

the Trap Laying Officer PW11. As per the Trap Laying Officer, none of the witnesses

have spoken about the manner in which the money, which was received from the de

facto complainant, was handled by the accused and dealt by the accused. Further, it is

the case of the Trap Laying Officer that from the very same inner pocket, Rs.450/- was https://www.mhc.tn.gov.in/judis

taken by the accused and given to him. In such circumstances, the manner, in which, the

phenolphthalein test was conducted is also doubtful. As per the prosecution the

phenolphthalein test conducted on fingers of both hands, had proved positive and turned

pink. Further, the manner, in which, the test was conducted in respect of the Shirt MO7

also creates a doubt. The case of the prosecution has not been proved beyond all

reasonable doubts and the appellant, by examining DW1 and filing a written statement

under Section 313, has explained the circumstances under which, the money was taken

from him and thereby he had rebutted the presumption under Section 20 of the

Prevention of Corruption Act.

(l) The learned counsel for the appellant would further insist that in a trap case,

though compliance of the Rules under DVAC Manual is not mandatory, so far as the

facts of the case are concerned, the discrepancies in the observation mahazar and rough

sketch assume significance, create a doubt with regard to the prosecution case and in

such circumstances, when the prosecution has failed to prove its case beyond all

reasonable doubts, the appellant, by his explanation under Section 313 CrPC and

examining DW1, has proved his defence by preponderance of probabilities.

(m) The learned counsel for the appellant ultimately contended that the impugned

judgement of conviction and sentence is against law and that the prosecution has failed

to prove its case beyond all reasonable doubts and hence, the appellant is entitled for

acquittal and the court has to allow the appeal.

12. In order to substantiate the grounds raised the learned counsel for the appellant

relied on the following decisions:-

https://www.mhc.tn.gov.in/judis

1. N. Vijayakumar Vs. State of Tamil Nadu reported in (2021) 3 SCC 687

2. Panalal Damodar Rathi Vs. State of Maharashtra, AIR-1979-SC-1191

3. Jaswant Singh Vs. State of Punjab (AIR-1973-SC-707),

4.Selvaraj Vs. State of Karnataka, 2015 10 SCC 230

5. T.S.Ramasamy Vs. State of Tamil Nadu 1994 Crl.LJ 545

6. State of Punjab Vs. Madan Mohan Lal Verma, 2013 14 SCC 153

7. P.Sathyanarayana Murthy Vs. District Inspector of Police, State AP and another, 2015 10 SCC 152

8. State of Maharashtra Vs. Dhyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200

9. V.Sejappa Vs.State by Police Inspector Lokayukta, Chitradurga (2016) 12 SCC 150

13. Learned Government Advocate (Criminal Side) for the state, in reply, would

submit that the appellant, who is a Village Administrative Officer, had demanded and

received illegal gratification for issuance of the revenue records and NOC for obtaining

electricity connection. The appellant had made the demand on four occasions and the

prosecution, by letting in cogent evidence, has proved the demand. Based upon the

demand, a trap proceeding was initiated and the appellant was arrested red handed while

receiving the bribe amount. The bribe amount was recovered from his inner shirt pocket

and that the phenolphthalein test conducted on his hands has also proved positive.

Further, the documents were also recovered from the custody of the appellant. The

minor discrepancies in the evidence of witnesses cannot be given much importance. The

prosecution has proved its case beyond all reasonable doubt and the trial Court finding https://www.mhc.tn.gov.in/judis

that the tainted money was recovered from the possession of the accused person and

holding that the explanation offered by the accused is not satisfactory, had drawn the

presumption against the accused had convicted him since the prevention of Corruption

Act being social welfare legislation, a liberal view in favour of the accused cannot be

drawn and in such circumstances would seek for the dismissal of the appeal.

14. Heard the learned counsel appearing for the parties and perused the materials

available on record.

15. This court has given its careful and anxious consideration to the rival

contentions put forward by either side and had perused the entire documents available on

record and also perused the impugned judgment of conviction. In this case, the

prosecution has examined 11 witnesses, marked 27 documents and 7 material objects

and the defence has examined one witness on its side.

16. The case came to be registered based on the complaint given by the defacto

complainant PW3 on 28.09.2004. It is the case of the defacto complainant PW3 that the

accused had first made a demand on 25.09.2004 at 10.00 a.m. and the second demand on

the same day at 11.00 a.m. and the third demand was made on the day of trap on

28.09.2004 at 1.30 p.m. and the fourth demand at 3.40 p.m on the same day. It is the

further case of the prosecution that the accused received the bribe amount at 3.40 p.m.

on 28.09.2004 and kept in his shirt pocket and thereafter, he was caught red handed and https://www.mhc.tn.gov.in/judis

the amount was recovered from the accused. It is for the prosecution to prove the initial

demand, demand and acceptance at the time of trap and thereafter to prove the recovery

of bribe money beyond all reasonable doubts. The defence of the accused is that the

father of PW3 (PW5) is the joint patta holder of the land, for which NOC for electricity

connection was required by PW3 and thereby he had insisted the father of PW3 also to

insistence and thereby he has given a false complaint, based on which, a stage managed

trap was organised and during such time, he was threatened by the police and the money

was planted into his pocket and was compelled to take it out and that the

Phenolphthalein test was also flawed.

17. The case of the prosecution mainly rests on the evidence of PW3 the defacto

complainant, PW2 the official / shadow witness, who is stated to have witnessed the trap

proceedings, PW5 the father of the defacto complainant, who is stated to have

accompanied PW3 at the time of trap proceedings, PW9 the Zonal Deputy Tahsildar,

who was present in the office on the relevant day and DW1, a close relative of PW3,

who has been examined on the defence side to falsify the evidence of PW3 with regard

to the alleged demand on 24 -09-2009. Admittedly, the land is jointly owned by PW3

and his father and as per the rules, it requires the consent of the joint patta holder i.e. the

father of PW3 who has to necessarily attest in the application Ex.P3 in the presence of

the Village Administrative Officer/the accused.

https://www.mhc.tn.gov.in/judis

18. It is pertinent to note that it is the case of the accused that he had prepared all

the documents on 27.09.2004 itself and he had obtained the signature of PW3 on the

same day and he had insisted PW3 to bring his father to attest in the application. It is

also the case of the accused that he had prepared all the revenue documents i.e, Exs.P4 to

P9 and that he had signed and made all the documents ready on 27.09.2004 itself and it

is also the case of the accused that PW3 had met him on 27.09.2004 itself and signed in

the application however, he had suppressed the same at the time of giving the complaint

on 28.09.2004. A perusal of Ex.P3 shows that the defacto complaint had affixed his

signature on 27.09.2004 itself and perusal of Exs.P4 to P9 also shows that they were

made ready as early as on 27.09.2004. Further perusal of Ex.P3 shows that without the

signature of the joint patta holder, the application for electricity connection will not be

accepted. It is also the further evidence of PW3 that when he had met the accused for the

first time on 24.09.2004, the accused had told him the presence of his father and his

signature were necessary in Ex.P3. Further, in Ex.P15 in the complaint itself, PW3 had

stated that when he met the accused on 25.09.2004, the accused had asked him to bring

his father, whereas PW3 had not taken his father. It is also seen that in Ex.P15, it is

mentioned that after 25.09.2004 when the accused had demanded Rs.1,600/- and reduced

it to Rs.1500/- on his request, he went to his residence and came to the Vigilance Office

on 28.09.2004 at about 9.00 a.m and gave the oral complaint, whereas the document

mentioned above shows that the defacto complaint had signed all the documents on

27.09.2004 itself. In such circumstances, the defence of the accused that since he had

insisted the presence of his father for issuing the certificate, the defacto complainant got https://www.mhc.tn.gov.in/judis

antagonised has got some force.

19. The next submission put forth by the learned senior counsel for the appellant

is that the presence of PW2 in the Vigilance Office even before registration of the FIR

creates a doubt in the genesis of the case. As per the prosecution, the FIR was stated to

be registered on 28.09.2004 at 9.30 a.m. and sent to the Court at 10.00 a.m. and it had

reached the Court on the same day at 3.45 p.m. As per the evidence of PW2/the official

shadow witness, it is seen that he had stated that his superior officer had received a

requisition from the police at 10.00 a.m. and as per his oral instructions, he had gone to

the vigilance office between 10 and 11 a.m. in the morning. PW2 in his cross

examination has also stated that he had gone to the Vigilance Office at 10.15 a.m.

whereas it is the evidence of PW3 that he had come to the vigilance office at 9.00 a.m.

and an oral complaint was given to the Inspector of Police PW11 and he had recorded

the complaint after which FIR was registered and he further stated that when he was

waiting there, two persons namely PW2 and another person Munirathinam (not

examined) had come there, whereas in his cross examination, PW3 has deposed that the

Inspector had completed writing the complaint at 10.14 a.m. and the FIR was registered

between 10.30 a.m. and 11.30 a.m. and if that be so, the FIR had been registered only

after the arrival of the shadow witness PW2 and it shows that the requisition had been

given to the Government witness even before the registration of the FIR. It is also seen

that the prosecution has not got any clarification from PW3 with regard to this aspect. A

perusal of the complaint Ex.P15 and the FIR Ex.P16 would show that handwriting in https://www.mhc.tn.gov.in/judis

both the documents are different suggesting that they were prepared by two different

persons whereas it is the case of PW11 that oral complaint given by PW3 was reduced

into writing by him and thereafter, he got the FIR ready thereby, the evidence of PW3 in

his cross examination that the complaint was completed at 10.14 a.m. and the FIR was

registered from 10.30 a.m. to 11.30 a.m. is more probable and acceptable.

20. Yet another contention raised by the learned senior counsel is that the entire

trap proceeding is shrouded with mysteries. In this regard, as per the evidence of the

witnesses, the trap team is alleged to have gone to VAO's office at 12.45p.m and at that

time, the accused was not available and one Munirathinam Village Assistant had

informed PW3 and PW2 that the accused had gone to the Tahsildar’s office at Palacode.

The said Munirathinam had not been examined. Further, it is the evidence of PW2 and

PW3 that they went to the Tahsildhar office at Palacode at 1.25 p.m. and met the accused

and the accused had asked PW3 to bring his father and at that time, the accused is said to

have asked for money but PW3 had not attempted to hand over the money to the accused

at that time. PW3 at that time had not told the accused that he would go and bring his

father on the same day itself, whereas, it is the evidence of PW3 that his father was sick

and he was unable to come. Further, there are material contradictions in the evidence of

PW2, PW3 and PW11 with regard to the presence of the accused at the Tahsildar office

around 1.30 p.m. PW2 in his chief examination had deposed that when he along with the

complainant had gone to the Tahsildar office at 1.30 p.m., the accused was available

inside the office, whereas in his cross examination, he had deposed that when he went https://www.mhc.tn.gov.in/judis

along with PW3,the accused was standing in between the main gate and the entrance of

the Tahsildar’s office, whereas PW3 in his chief examination has stated that at 1.30 p.m.

they had seen the accused inside the Tahsildar's office, whereas, in his cross

examination, he had stated that they had seen the accused between the outer gate of the

Tahsildar's office and the entrance of the Tahsildar’s office and that the accused was

standing 20 feet away from the building, whereas, PW11's evidence in this regard is that

at 1.30 p.m. he had sent PW3 & PW5 along with PW2, inside the Tahsildar's office as

they were informed that the accused was present inside the Tahsildar's office. In this

regard it could be also inferred that if the accused had the intention to receive the bribe,

it would have been the natural conduct to demand and receive the bribe money at the

first meeting itself and not have asked PW3 to bring his father.

21. Next, coming to the trap proceedings at 3.40 p.m. this Court is able to see that

there are material contradictions in the evidence of PW2, PW3, PW5 and PW11 with

regard to the presence of the accused in the Tahsildhar's office at 3.40 p.m. also. PW2 in

his examination in chief had stated that he along with PW3 and his father PW5 went to

the Thashildar's office at 3.40 p.m. and at that time, the accused was standing near the

main gate of the Tahsildar's office. It is the further evidence of PW2 that when all the

three went to the accused again, he was standing outside the main gate of Tahsildhar's

office 15 feet away from the edge of the road on the northern side of the main gate.

PW11 Trap Laying Officer has stated that he had seen all the incidents from the place,

where he was standing, whereas PW3 in his examination in chief has deposed that they https://www.mhc.tn.gov.in/judis

met the accused at 3.40 p.m. outside the Tahshildar's office gate and that in his cross

examination, he has deposed that the accused was standing near the outer gate of the

Taluk office 5 feet away from the gate and he was standing on the eastern side of the

road on the right hand side of the gate, whereas PW5, who had accompanied PW2 and

PW3, had deposed that he met the accused near his office gate and that in his cross

examination, he had stated that when he and his son PW3 were standing near

Tahsildhar's Office gate, the accused had met them, whereas it is the evidence of PW11

that he had sent PW3 & PW5 along with PW2, at 3.40 p.m. to meet the accused and

again at 3.50 p.m. PW2 and PW3 came outside the Tahsildhar's office at Palacode,

Dharmapuri Main road and PW3 has shown the signal and that, he was able to see

everything from where he was standing at the entrance of the Thasildhar's office,

whereas, the entire evidence of PW2, PW3, PW5 & PW11 is belied by the evidence of

PW9 Malliga, Zonal Deputy Tahsildhar, who had deposed in her chief examination that

when she was in the office, some persons claiming to be from the Vigilance Department

had come to the office at 03.00p.m and introduced themselves and forced the accused to

sit in A2 Clerk’s seat during that time.. As per the prosecution, the occurrence viz;

demand, acceptance and recovery is stated to have taken place around 3.45 p.m. on

28.09.2004 outside the Tahshildar's office, whereas it is the categorical evidence of PW9

that the accused was detained inside her office at 03.00 p.m by some persons claiming to

be from Vigilance and that they had forced him to sit in the A2 Clerk’s seat. Apart from

that, while analysing the evidence of PW5, he has not deposed about the presence of

PW2/the official shadow witness throughout the entire proceedings and further, it is the https://www.mhc.tn.gov.in/judis

evidence of PW5 that his son had not informed anything about the accused asking him to

come and sign in the application and he had not spoken anything about having given a

complaint and the trap proceedings and this aspect also creates suspicion in the

prosecution case.

22. It is the case of the prosecution that PW3 had gone back to his village on the

direction of the accused to bring his father PW5 and they travelled back in a two wheeler

and it is quite unnatural and unbelievable that during the journey PW3 had not conversed

with his father about the complaint and the trap team waiting for them outside the office

of the accused. Further, it is also the evidence of PW11 that the entire trap team was

waiting outside the office for two hours for PW3 to bring PW5 which is also quite

unbelievable.

23. Now coming to the phenolphthalein test, it is the evidence of witnesses that

the accused received the money and he had kept it in the inside shirt pocket on the left

side, whereas, it is the case of the prosecution that when the phenolphthalein test was

conducted on the fingers of both hands of the accused, sodium carbonate solution kept in

both containers turned pink. It is the evidence of PW11 Trap Laying Officer that none of

the witnesses have spoken about the accused dealing or handling the money with both

hands and in such circumstances, the Phenolphthalein test conducted on both hands

turning positive also creates a doubt. Further, it was submitted by the learned counsel

that apart from the tainted money, Rs.450/- was also taken from the very same inner https://www.mhc.tn.gov.in/judis

pocket and the non conducting of test on Rs.450/- also creates a doubt in the prosecution

case.

24. Further to disprove the case of the prosecution, the accused at the time of

questioning under Section 313 of Cr.P.C had filed written statement submitting his

defence regarding requirement of signature of PW 5 (PW3’s father) in the application,

the entry of Vigilance Officer into the office by 3.00 p.m. and about the thrusting of

money in his pocket on 28.09.2004 at 3.00 p.m. by PW2 and thereafter conducting

phenolphthalein test. Further, the accused had also examined one Munusamy, DW1 close

relative of PW3 (cousin of the defacto complainant in defence) to falsify the alleged

demand on 24.09.2009 and about the accused insisting the defacto complainant PW3 to

get the signature of his father PW5 in the application. However, nothing worthwhile has

been elucidated by the prosecution by way of cross examining the defence witness.

25. With regard to non compliance of Rule 49 of the DVAC Manual it is to be

stated that though the compliance of rules under the DAVC Manual is not mandatory,

they assume significance in the attendant circumstances and the facts of this case. In this

case, as per the evidence of PW2 and PW3, the accused is stated to have received the

bribe amount at about 3.40 pm outside the Tahshildar's office within the compound,

where several other persons were also standing. However, the sketch does not reflect

whether there was a gate or compound wall and the position of the accused officer, bribe

giver, trap team or the place where they were stated to have seen the accused receiving the https://www.mhc.tn.gov.in/judis

bribe. This coupled with evidence of PW9, the Zonal Deputy Tahsildar that she had seen

some persons claiming to be Vigilance Officials holding the accused in A2 Clerk’s seat

inside the office at 3.00 pm also creates a doubt with regard to the alleged place of demand,

acceptance, trap and recovery.

26. Though the learned counsel for the appellant had relied on several judgments

regarding the legal aspects in a trap case, this court deems it suffice and appropriate to refer

to the following judgments:-

i) In T.S.Ramasamy Vs. State of Tamil Nadu reported in 1994 Crl.LJ 545:

"This Hon’ble court while dealing with evidence regarding the place of

occurrence, has held that in all trap cases like this, it is necessary for the

Prosecution to file a sketch also showing the office or the place where the

accused was trapped. Otherwise, it would be difficult and unsafe to accept

the mere oral evidence of the official trap witnesses when they give

evidence that they witnessed the payment of bribe. It was further held that

it is sufficient if the accused showed preponderance of probabilities of his

defence and it need not be proved beyond all reasonable doubts as in the

case of the Prosecution."

ii) In P.Sathyanarayana Murthy Vs. District Inspector of Police, State AP

and another, 2015 10 SCC 152, the Apex Court has held as under:-

"23. The proof of demand of illegal gratification, thus, is the gravamen

of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in https://www.mhc.tn.gov.in/judis

absence thereof, unmistakably the charge therefor, would fail. Mere

acceptance of any amount allegedly by way of illegal gratification or

recovery thereof, dehors the proof of demand, ipso facto, would thus not

be sufficient to bring home the charge under these two sections of the

Act. As a corollary, failure of the prosecution to prove the demand for

illegal gratification would be fatal and mere recovery of the amount from

the person accused of the offence under Section 7 or 13 of the Act would

not entail his conviction thereunder.

.... ..... ....

26. In reiteration of the golden principle which runs through the web of

administration of justice in criminal cases, this Court in Sujit Biswas v.

State of Assam [(2013) 12 SCC 406 : (2014) 1 SCC (Cri) 677] has held

that suspicion, however grave, cannot take the place of proof and the

prosecution cannot afford to rest its case in the realm of “may be” true

but has to upgrade it in the domain of “must be” true in order to steer

clear of any possible surmise or conjecture. It was held, that the court

must ensure that miscarriage of justice is avoided and if in the facts and

circumstances, two views are plausible, then the benefit of doubt must be

given to the accused.

27. The materials on record when judged on the touchstone of the legal

principles adumbrated herein above, leave no manner of doubt that the

https://www.mhc.tn.gov.in/judis

prosecution, in the instant case, has failed to prove unequivocally, the

demand of illegal gratification and, thus, we are constrained to hold that

it would be wholly unsafe to sustain the conviction of the appellant

under Sections 13(1)(d)(i) and (ii) read with Section 13(2) of the Act as

well.

iii) In V.Sejappa Vs .State by Police Inspector Lokayukta, Chitradurga reported in

(2016) 12 SCC 150, the Honourable Supreme Court, while referring to several earlier

judgments, has held as follows:-

“18. It is well settled that the initial burden of proving that the

accused accepted or obtained the amount other than legal

remuneration is upon the prosecution. It is only when this initial

burden regarding demand and acceptance of illegal gratification

is successfully discharged by the prosecution, then the burden of

proving the defence shifts upon the accused and presumption

would arise under Section 20 of Prevention of Corruption Act. In

the case at hand, all that is established by the prosecution was the

recovery of money from the appellant and mere recovery of money

was not enough to draw the presumption under Section 20 of Act.

iv) In N.Vijayakumar vs. State of Tamil Nadu (2021) 3 SCC 687, wherein the

Hon'ble Apex Court has held as under:-

"26. It is equally well settled that mere recovery by itself cannot prove

the charge of the prosecution against the accused. Reference can be https://www.mhc.tn.gov.in/judis

made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M.

Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and in

B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC

55 : (2014) 5 SCC (Cri) 543] In the aforesaid judgments of this Court

while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the

Prevention of Corruption Act, 1988 it is reiterated that to prove the

charge, it has to be proved beyond reasonable doubt that the accused

voluntarily accepted money knowing it to be bribe. Absence of proof of

demand for illegal gratification and mere possession or recovery of

currency notes is not sufficient to constitute such offence. In the said

judgments it is also held that even the presumption under Section 20 of

the Act can be drawn only after demand for and acceptance of illegal

gratification is proved."

27. To conclude, while analyzing the evidence on record in the instant case in

consonance with the judgments referred above, the foundation of the prosecution case, as

observed already, has been shaken to a great extent. The version of the de facto complainant

as to the demand and receipt of the bribe money is suspicious and it also does not inspire

any confidence. The summoning of PW2/the official shadow witness prior to the

registration of the F.I.R. and further, the conduct of PW3 and PW5 prior to the trap and

PW5 not mentioning about the presence of PW2/the shadow witness also casts a doubt

with regard to the trap proceedings. Further, the evidence of PW9, the official witness

namely, the Zonal Deputy Tahshildar, Palacode, who was present inside the office where https://www.mhc.tn.gov.in/judis

the tainted money is alleged to have been recovered from the accused, also assumes

significance. The evidences are contradictory creating grave doubts in the prosecution

case with regard to the place of demanding and accepting money by the accused and

place of trap proceedings and alleged time of recovery as claimed by the prosecution,

which are highly suspicious and shrouded with doubts and thereby making it difficult to

believe the case of the prosecution on the basis of such dubious evidence. The

prosecution has miserably failed to prove the foundational facts, namely, the demand,

acceptance and recovery of the amount of illegal gratification, beyond all reasonable

doubts.

28. In view of the above infirmities and inherent improbabilities, this Court has to

necessarily come to the conclusion that the entire trap proceedings are bristled with

suspicious circumstances and doubts, and the prosecution, has miserably failed to

establish the foundational facts regarding the guilt of the accused by cogent evidence

whereas the accused has rebutted such presumption by preponderance of probabilities

and thereby, the accused is entitled to benefit of doubt and entitled to be acquitted.

29. In the result, the criminal appeal is allowed. The impugned judgment of

conviction and sentence imposed by the trial Court is hereby set aside. The

Appellant/Accused is acquitted from the charges levelled against him. The bail bond, if any

executed by the Appellant/Accused, shall stand cancelled and the fine amount paid, if any

by him, shall be refunded to him.

https://www.mhc.tn.gov.in/judis





                                                                   06.12.2023
            Index     : Yes/No
            Internet : Yes/No
            sms

            To

            1. The Chief Judicial Magistrate,
               Dharmapuri.

            2. The Deputy Superintendent of Police,
               Vigilance and Anti Corruption Department,
               Dharmapuri.

            3. The Public Prosecutor,
               High Court, Madras.




https://www.mhc.tn.gov.in/judis





                                  A.D.JAGADISH CHANDIRA,J.



                                                            sms









                                                     06.12.2023



https://www.mhc.tn.gov.in/judis