Madras High Court
A. Perumal vs State By on 27 November, 2023
Author: A.D.Jagadish Chandira
Bench: A.D. Jagadish Chandira
Crl.A.666 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.11.2023
CORAM :
THE HONOURABLE MR. JUSTICE A.D. JAGADISH CHANDIRA
Criminal Appeal No.666 of 2017
---
A. Perumal .. Appellant
Versus
State by
The Inspector of Police,
Vigilance & Anti-Corruption,
Namakkal, Namakkal District,
Cr.No.1/AC/2004 .. Respondent
Criminal Appeal filed under Section 374 (2) of Criminal Procedure
Code to set aside the order passed in Spl. C.C. No. 13 of 2004 on the file of the
Special Judge/Chief Judicial Magistrate, Namakkal, Namakkal District.
For Petitioner : Mr. C. Prakasam
For Respondent : Mr. C.E. Pratap,
Government Advocate (Crl.Side)
JUDGMENT
The present Criminal Appeal has been filed by the sole accused in
Spl. C.C. No. 13 of 2004, challenging the judgment of conviction and
sentence dated 22.09.2017 rendered by the Special Judge cum Chief Judicial
Magistrate, Namakkal.
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2. The sentence imposed upon the appellant is as under :-
Under Section Sentence
7 of Prevention of Corruption Two years of simple
Act imprisonment and a fine of
Rs.1,000/-, in default, to undergo
one month simple imprisonment.
13 (2) r/w. 13 (1) (d) of Two years of simple
Prevention of Corruption Act imprisonment and a fine of
Rs.1,000/-, in default, to undergo
one month simple imprisonment.
3. Prosecution's version:-
The appellant/accused viz., Perumal was working as a temporary
fitter under NMR Scheme at Elachipalayam Panchayat Union, Tiruchengodu
Taluk, Namakkal District between 01.06.1986 and 30.01.2004 and he is a
public servant as per the Prevention of Corruption Act. The defacto
complainant, Selvakumar, was in need of No Objection Certificate for getting
electricity service connection to his bore-well. When he applied for NOC
from the Panchayat Union, the accused demanded an illegal gratification of
Rs.350/- to discharge his official duty. Since the defacto complainant was not
willing to give the bribe amount, he lodged a complaint on 30.01.2004 at 8.45
a.m to the Inspector of Police (P.W.11), Vigilance and Anti-Corruption,
Salem. On receipt of the complaint (Ex.P.1), PW11 registered a case in Crime
No.1/AC/2004 against the accused under Section 7 of Prevention of
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Corruption Act.
4. Based on the complaint, a trap was laid on the same day between
12.35 p.m and 12.45 p.m. during which the accused was caught red handed
while receiving the bribe at Elachipalayam Panchayat Union Office. After
completion of investigation, the respondent filed the final Report on
25.05.2004 against the accused under Sections 7, 13 (2) & 13 (1) (d) of the
Prevention of Corruption Act and the same was taken on file as Spl.C.C.No.13
of 2004 by the learned Special Judge cum Chief Judicial Magistrate,
Namakkal.
5. On issuance of summon, the appellant/accused appeared before
the Special Judge/Chief Judicial Magistrate, Namakkal and in due compliance
of Section 207 of Cr.P.C., copies of the documents were furnished to the
accused.
6. After hearing both sides, charges were framed against the
appellant/accused for the offences under Sections 7 and 13(1)(2) r/w. 13(1)(d)
of the Prevention of Corruption Act,1988. The appellant/accused denied the
charges and sought to be tried.
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7. The prosecution, in order to prove its case, examined P.W.1 to
P.W.12 and marked Ex.P.1 to Ex.P.26 and marked M.O.1 to M.O.9 .
8. Based on the incriminating materials, when the accused was
questioned under Section 313(1) Cr.P.C., he pleaded not guilty. However, he
has not examined any defence witness or marked any document.
9. 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 to 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.
10. Mr. C. Prakasam, learned counsel appearing for the appellant/
accused would submit that the appellant is an innocent person and he has been
made a scape goat in this case. He was a temporary employee, employed as a
Helper cum Hand Pump Operator on daily wages in the Elachipalayam
Panchayat Union. One Periyasamy, who has been examined as P.W.5 in this
case, was working as a Fitter in the Elachipalayam Panchayat Union during the
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relevant period and he is the person, who is authorized to issue the No
Objection Certificate. Even as per the prosecution version, there is confusion
with regard to the person, who has demanded the bribe amount from the
defacto complainant (P.W.1). The evidence of PW1 is that, the Fitter is the
person, who has demanded the bribe amount for issuing No Objection
Certificate. Other than receiving the amount of Rs.50/- for flag day collection
and issuing receipt, the appellant/accused has not committed any offence as
alleged by the prosecution. The entire trap proceedings are stage managed and
in order to save PW5, who is the fitter and a permanent employee, the
appellant has been falsely implicated in this case. The material contradictions
in the evidence of PW1 and PW2 and the discrepancies in the trap proceedings
creates suspicion in the prosecution case. It is the admitted evidence of PW1
that No Objection Certificate was made ready on 27.01.2004 and he had also
admitted to have received the No Objection Certificate on 27.01.2004 itself
and thereby, the question of lodging the complaint on 30.01.2004 does not
arise at all. When the alleged trap proceedings creates a suspicion, the
appellant is entitled for acquittal by giving benefit of doubt. He would further
submit that the appellant being a temporary employee, immediately after the
incident, was removed from service. As there are different version given by
the prosecution witnesses, with regard to the demand, the prosecution case
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remains doubtful.
11. He would further submit that P.W.2, is who stated to have
accompanied the defacto complainant/P.W.1 has not supported the case of the
prosecution and he has been treated hostile. Further, there are also
discrepancies in the evidence of P.W.2 with regard to the trap proceedings and
recovery of money and thereby, creating the doubt in the prosecution case.
Admittedly, as per the evidence of P.W.1 and P.W2 the accused had received
the money and kept it on the right side pant pocket on the back side and that
the PW11/Trap Laying Officer along with party had immediately gone into the
room and restrained him. When such being so, there is no requirement for
PW11/Trap Laying Officer to subject the shirt/M.O.9 worn by the
appellant/accused for phenolphthalein test. This aspect also creates doubt with
regard to the trap proceedings.
12. In any event, the case of the prosecution was not proved beyond
reasonable doubt and when the prosecution has failed to prove the
foundational facts, the appellant is entitled to invoke the presumption under
Section 20 of the Prevention of Corruption Act. Thereby, the accused is
entitled for acquittal.
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13. Mr. C.E.Pratap, the learned Government Advocate(Crl.side)
appearing for the respondent would submit that the appellant/accused was
working as a temporary employee. He was paid by the Government from the
contingent fund and he falls within the category of public servant. It is true
that No Objection Certificate was made ready as early as on 27.01.2004,
however, the appellant/accused demanded money from PW1 for handing over
the No Objection Certificate to him. He would further submit that the
discrepancies with regard to the trap proceedings are minor in nature and they
will not any way vitiate the prosecution case in any manner. He further
submitted that the trial Court, after carefully analyzing the record, had rightly
found the appellant/accused guilty, thereby, he would seek to dismiss the
appeal.
14. Heard Mr. C. Prakasam, learned counsel appearing for the
appellant/ accused and Mr. C.E. Pratap, learned Government Advocate
(Criminal Side) appearing for the respondent and perused the materials
available on record.
15. The evidence of the prosecution, as culled out from the records,
is that P.W.1 Selvakumar, the de facto complainant had deposed that he had
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applied for E.B. Connection for his bore-well and he was advised to obtain a
No Objection Certificate from the Panchayat and thereby, on 21.04.2004, he
met Venkatachalam (P.W.3), Block Development Officer, Elachipalayam. On
his advise, he met the Supervisor Periyasamy (P.W.5) and handed over the
requisition form along with other documents. P.W.3 had initialed in the
application and handed over it to P.W.5 and thereafter, P.W.5 had gone to his
seat and had summoned the accused and asked him to visit the place, where
the land in which the bore-well is sought to be erected, for issuing No
Objection Certificate. The accused had asked P.W1 to come to
Manikampalayam at 8.30 am on the next day and accordingly, P.W.1/defacto
complainant had taken the accused in his two wheeler to the land and later, at
the request of the accused, he dropped him at the bus-stop. At that time, the
accused insisted P.W.1 to pay Rs.400/- on the next day for getting NOC.
When he expressed his inability to pay such sum, he reduced his demand to
Rs.350/-. Further, on 23.01.2004, when P.W.1/defacto complainant had again
met the appellant/accused, he had reiterated his earlier demand of Rs.350/-
and asked him to give the same on 30.01.2004 since there are holidays in
between. Since P.W.1 was not willing to pay the bribe amount, he had lodged
a written complaint (Ex.P.1) on 30.01.2004 at 8.45 a.m. to
P.W.11.Somasundaram, Inspector of Police, Vigilance and Anti Corruption ,
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Salem.
16. On receipt of the complaint (Ex.P.1), The Inspector of Police
(P.W.11), who is the Trap Laying Officer, had registered a case in Crime
No.1/AC/2004 against the accused under Section 7 of the Prevention of
Corruption Act, 1988. The printed First Information Report is Ex.P.23.
Thereafter, P.W.11-Trap Laying Officer had arranged for two official
witnesses, namely, Tr. Murugesan (P.W.2), Statistical Sub-Inspector and one
Tr. Sakthivel. When the official witnesses had attended the office, P.W.11 had
introduced P.W.1-defacto complainant to them and handed over the complaint
and First Information Report to the official witnesses to make them get
acquainted with the facts of the case. Thereafter, P.W1 handed over the bribe
money of Rs.350/- (M.O.1 series) [(Rs.100 x 1) = Rs.100 + ( Rs.50 x 5) =
Rs.250] and asked the official witnesses to count the same. P.W.11 noted
down the serial numbers of the said currency notes. Subsequently, Sodium
Carbonate solution was prepared in a glass tumbler and the official Witness
Sakthivel was directed to dip his fingers in the Sodium Carbonate solution.
The solution did not change the colour. Thereafter, the currency notes were
smeared with phenolphthalein power and the official witness Tr. Sakthivel was
again asked to count the currency notes and the official witness Tr.Sakthivel
was thereafter directed to dip the fingers in the glass tumbler and the Sodium
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Carbonate solution, after the wash, has turned pink. Thereafter, PW11 took the
samples of phenolphthalein power and Sodium Carbonate Power in two
covers (M.O.2 and M.O.3 respectively) and sealed it and stick label
mentioning as A and B and obtained signature from the witnesses in the label.
The chemical test was demonstrated to the official witness and the defacto
complainant, the importance of the above test and the scheme of the trap
proceedings was explained to P.W.1, P.W.2 and other official witness. The
tainted money was handed over to P.W.1-defacto complainant with an
instruction to hand over the same to the accused only on demand. He was also
instructed to come out and give a pre-arranged signal once the tainted money
was accepted by the accused. The official witness, viz, Murugesan, was asked
to accompany the defacto complainant (P.W.1) and observe the conversations
between the defacto Complainant (P.W.1) and the appellant/accused.
Entrustment Mahazar (Ex.P2) was prepared by P.W.11 in the presence of
P.W.1, P.W.2 and yet another official witness, viz., Murugesan.
17. After finalization of the scheme for trap, P.W.11-Trap Laying
Officer along with P.W.1-defacto complainant, P.W.2-Murugesan and other
official witness (not examined) along with police party proceeded to Block
Development Office, Elachipalayam around 11.40 a.m. and reached the said
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office around 12.30 p.m. When P.W.1-defacto complainant and Murugesan,
official witness (not examined) met the accused at 12.35 p.m., at his office, he
enquired whether he had brought the money demanded by him and then, P.W.1
handed over the tainted amount of Rs.350/- (M.O.1 series) to the
appellant/accused. The appellant/accused had accepted the same and kept the
amount in his pant pocket. Thereafter, he had handed over the No Objection
Certificate (Ex.P.3) and a Flag Day Receipt (Ex.P.4) to P.W.1-defacto
complainant. Murugesan-(not examined) shadow witness also witnessed the
happenings. Thereafter, P.W.1 along with the shadow witness had come out
of the office and gave the pre-arranged signal. Immediately, P.W.11-Trap
Laying Officer along with police party and official witnesses went to the spot
and enquired the defacto complainant about the happenings. P.W.1 defacto
complainant identified the accused. Thereafter, P.W.11-Trap Laying Officer
introduced himself to the accused and since the accused was shivering, he was
made to sit in the chair. P.W.11 seized the No Objection Certificate (Ex.P.3)
and Flag Day Receipt (Ex.P.4) under the Mahazar. (Ex.P.5). P.W.11 asked
one Chinnasamy, Noon Meal Organizer to be present at the time of enquiry
and after preparing the Sodium Carbonate Solution in M.O.4 and M.O.5,
conducted phenolphthalein test on both the hands of the accused and the same
proved positive. Thereafter, the appellant/accused produced the tainted money
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of Rs.250 from the back side pant pocket and Rs.100/- from the left side shirt
pocket and the same were recovered. P.W.11-Trap Laying Officer verified the
serial numbers of the currency notes recovered from the accused with serial
numbers in Ex.P2 -Entrustment Mahazar and they were found to be tallied.
P.W.11 had recovered the Flag Day receipt and No Objection Certificate under
the Mahazar Ex.P.5. When P.W.11 enquired the accused, he told that Fitter
Periyasamy had asked him to receive Rs.350/- from P.W1-defacto complainant
and had also asked him to receive additional amount of Rs.50/- for Flag Day
fund, and to issue receipt thereof separately. When P.W.11 enquired the
accused, he handed over Rs.110/- and told that it was his private money and
the same was returned back to him.
18. Thereafter, Sodium Carbonate Solution was prepared in two
other glass tumblers in which the left side front pocket of the accused was
dipped in one glass tumbler as also the backside pant pocket, which were worn
by the accused in another glass tumbler and they turned pink and the same
were marked as MO.6 and M.O.7. The cement colour pant worn by the
accused was marked as MO8 and the sandal colour shirt wore by the accused
was marked as MO9. The file relating to No Objection Certificate containing
14 pages was marked as Ex.P.6. The Flag Day Receipt book containing the
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acknowledgment bearing Nos.279188 to 279900 was marked as Ex.P.7.
Mr. Chinnasamy, Extension Officer, had furnished the details regarding the
employment details of the accused, which were marked as Ex.P.8 and the daily
wages register was marked as Ex.P.9. The mahazar with regard to the Trap
Proceedings was marked as Ex.P.10. Thereafter, PW11 had prepared Rough
Sketch under Ex.P.11 and proceeded to the house of the accused after advance
intimation to the court and search was made in the presence of official
witnesses and wife of the accused and prepared Ex.P.12 Search Report. They
have also intimated the wife of the accused about his arrest. As per Ex.P.12,
nothing was recovered in the house search. After completion of investigation,
he had sent the seized material objections to Court through Form-95 (Ex.P.25)
and thereafter, handed over the case records to P.W.12 for further
investigation. On receipt of the same, P.W.12-Nachiyappan, examined the
witnesses and recorded their statements and sent the material objects for
chemical analysis. After obtaining permission from the Director of Vigilance
and Anti-Corruption, Chennai, he filed the charge sheet against the accused
under Sections 7, 13(2) r/w.13(1)(d) of the Prevention of Corruption Act 1988.
19. P.W.3 is the Manager in the BDO office, during the period
2003-2004 and he has spoken about the employment details of the accused.
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P.W.4 is the cashier working in the BDO's office. PW4 has spoken about the
allotment of work to the accused and also deposed about the defacto
complainant applying for NOC. PW4 also stated that soon after the defacto
complainant applied for NOC on 20.01.2004 the fitter Periyasamy visited the
land of the defacto complainant and placed a report before the BDO on
23.01.2004 and it was placed before the BDO on 27.01.2004. The Block
Development Officer has thereafter granted NOC on 27.01.2004 itself. He had
further deposed that it was the duty of the fitter or his assistant to hand over
NOC to the applicant. Further, he deposed that he instructed to hand over the
NOC to the defacto complainant and he along with the BDO had gone to
Trichengode Treasury.
20. P.W.5 is the fitter working in Elachipalayam panchayat union
and that the accused was working as an Assistant under him. PW5 stated that
the accused was working in a temporary post under Non Muster Roll (NMR)
category in the Panchayat Union office. He further deposed that the accused
was paid from the contingent fund and monthly expenses sheet for the month
of December 2003 was marked as Ex.P.18. He further deposed that the Salem
District Collector had passed an order to inspect and grant NOC for installing
borewell if only there were no borewells within 100 meters vicinity of the
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proposed borewell. The order of Collector was marked as Ex.P.13. He had
further stated that PW1 had applied for NOC and that he had handed over the
application for registering to Muthusamy, who was incharge of A3 seat and
had directed the accused, who was his assistance to inspect the case. At that
time, the defacto complainant/PW2 and the accused were present and the
accused told the defacto complainant/PW2 that he will inspect his place on the
next day and on the next day, he had gone for some other work. The accused
after conducting inspection on 23.01.2004, after complying his work at
Namakkal had come back to his office and prepared report regarding the
inspection and the same was handed over to BDO. Since it was a holiday
between 24.01.2004 and 26.01.2004, he had made an endorsement regarding
the inspection in the PW2's application. The inspection report is Ex.P.14.
Further, he had instructed the Cashier Muthusamy to receive the flag day fund.
He has also stated that a target of Rs.1000/- was fixed for him in respect of
flag day collection and the order is Ex.P.15. The receipt book containing
receipts bearing serial Nos.279881 to 279900 was handed over to him, which
was also marked as Ex.P.7. He had also handed over the amounts to
Preetha/PW6, who was incharge of A3 seat. He had also instructed Preetha to
issue receipt no.279895 to Selvakumar after receiving Rs.50/- from him . He
further deposed that he had not instructed the accused to receive any amount
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from the defacto complainant/PW1. P.W.6, S. Preetha, Junior Assistant,
corroborates the evidence of PW5 with regard to the issuance of the flag day
receipts.
21. P.W.7 is the Extension Officer of Small Savings Scheme in
Elachipalayam Panchayam Union. P.W.7 corroborates the evidence of P.W.5
and P.W.6 with regard to the issuance of the Flag day receipts. The
proceedings of the District Collector with regard to the Flag Day collections
was marked as Ex.P.17
22. P.W.8 is a resident of Moliapalli who has deposed about his
application for NOC along with the documents containing 16 pages, which
were marked as Ex.P.18 series. He had further deposed that he had applied on
21.01.2004 and that within two days, NOC was issued and that no one had
demanded any bribe from him.
23. P.W.9 is the VAO of Lathuvadi and he has also spoken about the
issuance of chitta (Ex.P.19) and Adangal (Ex.P.20) to the defacto complainant.
P.W.10 is the Scientific officer, who has also spoken about the chemical
analysis test on the material objects.
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24. P.W.11 is the Trap Laying Officer and he had spoken about the
complaint given by PW1 on 30.01.2004 and having registered the case in
Crimd No.1 of 2004. He has stated that upon registration of the case, he has
called the official witnesses/shadow witnesses and introduced them to P.W2
complainant. He also explained that he demonstrated about trap laying
procedure and the principle regarding the phenolphthalein test to the defacto
complainant as well as official witnesses. He further deposed about having
gone to the office of the Elampalayam along with the PW1 and 2 and reached
the office at 11.30. He also deposed that PW1 and PW.2 have entered into the
office of the accused at 12.50 p.m., and he along with police party were
waiting outside the office. When the pre-arrange signal was received, he along
with his team had entered into the office at 12.50 p.m. PW1 identified the
accused by stating that he received Rs.350 as illegal gratification for issuing
the NOC. He had instructed PW1 to wait outside the office and he introduced
himself to the other officials. Thereafter, he proceeded to conduct
Phenolphthalein test on the accused in the presence of one Chinnasamy He had
also recovered the bottles containing sodium carbonate and marked them as
S1, S2, S3 and S.4 (MOS 4 to 7). The file containing NOC was recovered and
it was marked as Ex.P.3. The flag day receipt Ex.P.4 was also recovered under
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Mahazar Ex.A5. The pant and shirt M.O.8 and M.O.9 were recovered under
mahazar. He further collected all the documents relating to the NOC and also
collected the employment particulars of the accused. He prepared a sketch
(Ex.P.11) and a letter seeking the prior intimation to conduct a search at the
house of the accused. He also deposed about the remand of the accused to
judicial custody. Subsequently, PW11 had handed over the investigation to
P.W.12.
25. P.W.12 who had taken up the investigation from PW11 had
deposed that he had sent the material objects for chemical analysis. He also
stated that he had examined the witnesses and the scientific officer and after
completion of the investigation, filed the final report against the accused for
the offences under Sections 7 r/w/13(2) & 13(1)(d) of the P.C. Act.
26. Based on the above evidences, the Trial Court had found the
accused guilty. Therefore, this Court has to see as to whether the prosecution
has proved the case against the accused beyond reasonable doubt and whether
the Trial Court is right in appreciating the evidence in proper perspective.
27. Admittedly, the appellant/accused was working in the temporary
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post under the Nominal Muster Role (NMR) category in the Panchayat Union
office and he was paid from the contingent fund and thereby, he falls within
the category of public servant. However, he is not the Fitter working in the
Panchayat office and it is PW5/Periyasamy who was working as a Fitter in the
Panchayat office. As per the evidence of PW3, the Manager in the BDO
officer, PW5, K.A.Periyasamy is the person who is authorized to issue the No
Objection Certificate (NOC) after visiting and inspecting the land of the de
facto complainant/PW1.
28. It is the further case of PW4 that the de facto
complainant/PW1 had applied for a No Objection Certificate on 20.01.2004,
PW5 had visited the land and placed the report on 23.01.2004 and that BDO
had granted NOC on 27.01.2004. He had further deposed that it was the duty
of the Fitter/PW5 or his Assistant to hand over the NOC to the de facto
complainant/PW1.
29. Perusal of evidence of PW1 shows that he is not clear as to
who is the person who had demanded the money from him. He stated that on
23.01.2004, when he had gone to the BDO's office, the Fitter, PW5 had asked
him to pay the money, and at one point of time, he said that the
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appellant/accused in the person who had asked him to pay the money. Further,
he had stated that after registration of the case on 30.01.2004, he along with
PW2 had gone to the office of the appellant/accused and the accused had
asked whether he had brought the money and thereby, he handed over the
same to the accused. Further, in his cross examination, he had admitted that
Ex.P3, No Objection Certificate was made ready on 27.01.2004 itself and he
had received it on the same day.
30. When the basis for registration of the case on 30.01.2004 is
the demand of bribe for issuance of No Objection Certificate, the categoric
admission by PW1 that the NOC was made ready and handed over to him on
27.01.2004 itself, creates doubt with regard to the complaint given on
30.01.2004 alleging that NOC was not handed over to him.
31. Now coming to the evidence of PW2, he had deposed that
PW11, after the trap, had enquired the appellant/accused, and he had told him
that PW5/Periyasamy had informed him that the de facto complainant/PW1
would give Rs.350/- and as instructed by PW5, the accused had received
money from the de facto complainant/PW1 and as per the directions of PW5,
he had also collected Rs.50/- towards the Flag day contribution. PW2 had also
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spoken about the recovery of Ex.P6, the files containing 1 to 14 pages in
respect of the No Objection Certificate and he had also deposed about the
phenolphthalein test conducted on both hands of the appellant/accused and
also on the shirt and the pant worn by the appellant/accused and both of them
turned positive.
32. Now, while analyzing the evidence of PW2 with that of PW1,
it could be inferred that the demand has been made by PW5/Periyasamy, who
was a Fitter working in the Panchayat Office and PW1 had handed over the
money as directed by PW5. Further, at the time of trap, other than the recovery
of the files Ex.P6, Ex.P3/No Objection Certificate was not recovered, thereby,
proving the fact that Ex.P3/NOC had been received by the de facto
complainant/PW1 on 27.01.2004 itself and thereby, creating a doubt with
regard to the requirement of the complaint being made on 30.01.2004. PW2, in
his cross examination, had also stated that PW1 stated that he had brought the
money on the instruction of the Fitter, PW5/Periyasamy and he had handed
over the money to the appellant/accused and that the accused had not
demanded the money.
33. Now coming to the doubt regarding the phenolphthalein test,
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it is the categoric evidence of PW1 and PW2 that the appellant/accused had
received the money and kept it on the right side back pant pocket and
immediately, PW11/Trap Laying Officer along with his team entered the office
and restrained the appellant/accused and thereafter, conducted the
phenolphthalein test. When such being so, the need to recover the shirt for the
phenolphthalein test and the wash of the shirt turning positive also creates
doubt with regard to the prosecution case.
34. The material contradictions in the evidence of PW1 and PW2
and the acceptance of PW1 with regard to having received the NOC as early as
27.01.2004 create grave doubt and suspicion in the entire prosecution case.
35. Though the presumption is cast on the accused under Section
20 of the Prevention of Corruption Act, before raising the presumption under
Section 20 of the Prevention of Corruption Act, the prosecution is bound to
prove its case beyond reasonable doubts, i.e., the prosecution has to prove the
foundational facts. In this case, as stated above, there are several material
contradictions with regard to the basis for registration of the case and the
demand alleged to be made by the accused.
https://www.mhc.tn.gov.in/judis
Crl.A.666 of 2017
37. Further, the non-recovery of Ex.P3, No Objection Certificate
on the date of trap on 30.01.2004 also fortifies the claim of the accused that
Ex.P3 was received by the de facto complainant/PW1 on 27.01.2004 itself.
Further, the version of PW1 and PW2, suggest that PW5/Periyasamy, Fitter,
who is the authorized person, is the one who had demanded the money. This
aspect is also confirmed by the evidence of the shadow witness that PW1 had
handed over the money to the accused stating that as directed by PW5, the
money was handed over to him, when such being so, demand alleged to be
made by the appellant/accused is also doubtful.
38. Insofar as the offence under Section 7 of the Prevention of
Corruption Act 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 of the
Prevention of Corruption Act 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 also been laid down in several judgments of the Hon'ble
Apex Court.
https://www.mhc.tn.gov.in/judis
Crl.A.666 of 2017
39. Further, Regarding the presumption permissible under Section
20 of the Prevention of Corruption Act, such presumption can only be drawn
on proof of the acceptance of illegal gratification, which can follow only if
there is proof of demand. It is also a settled position, as stated in the case of
N. Vijayakumar Vs. State of Tamil Nadu, reported in (2021) 3 SCC 687, that
in the absence of proof of demand for illegal gratification, mere possession or
recovery of currency notes is not sufficient to constitute an offense under
Sections 7 and 13 of the Prevention of Corruption Act. The presumption under
Section 20 of the Act can be drawn only after the demand and acceptance of
illegal gratification are proved. Applying the said position to the case at hand,
the foundational facts have not been proved, thereby the legal presumption
under Section 20 of the Prevention of Corruption Act cannot be drawn.
40. In view of the above, this Court is of the opinion that the
prosecution has failed to prove its case beyond all reasonable doubts. In the
result, this Criminal Appeal stands allowed. The impugned judgment of
conviction and sentence passed by the trial Court is hereby set aside. The
Appellant is acquitted from all the charges leveled against him. The bail bond,
if any executed by the Appellant, shall stand canceled and the fine amount, if
any paid by him, shall be refunded to him.
https://www.mhc.tn.gov.in/judis
Crl.A.666 of 2017
27.11.2023
Index : Yes / No
Speaking / Non-speaking
Neutral Citation : Yes / No
mrp
To
1. The Special Judge/Chief Judicial Magistrate,
Namakkal, Namakkal District.
2. The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
Crl.A.666 of 2017
A.D.JAGADISH CHANDIRA, J.
mrp
27.11.2023
https://www.mhc.tn.gov.in/judis
