K.Selvadhurai vs State Represented By
2023 Latest Caselaw 12295 Mad

                                                                                   Crl.A.No.567 of 2015

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 12.09.2023

                                                            CORAM

                                  THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

                                                   Crl.A.No. 567 of 2015


                     K.Selvadhurai                                              ... Petitioner

                                                              Vs.

                     State Represented by
                     Inspector of Police
                     Vigilance and AntiCorruption
                     Cuddalore District
                     (Crime No.7 of 2007)                                    ... Respondent

                     Prayer: Criminal Appeal is filed under Section 374 of Cr.P.C to allow the
                     appeal by setting aside the Judgment made in Special Case No.5 of 2008 on
                     the file of the Special Judge/Chief Judicial Magistrate, Cuddalore-District,
                     Cuddalore dated 26.08.2015 in pursuance of the Crime No.7 of 2007 on the
                     file of the V&AC, Cuddalore.


                                      For Petitioner       : Mr.A.Thiyagarajan
                                                             Senior Counsel
                                                              for M/s.D.Veerasekaran
                                     For Respondent        : Mr.S.Udaya Kumar
                                                             Government Advocate (Crl. Side)



                     1/13

https://www.mhc.tn.gov.in/judis
                                                                                     Crl.A.No.567 of 2015

                                                         JUDGEMENT

This appeal is directed against the Judgment of the Trial Court passed

in Special Case No.5 of 2008 on the file of the Special Judge/Chief Judicial

Magistrate, Cuddalore District, Cuddalore.

2. The case of the prosecution is that the Defacto complainant

R.Shanmugam wanted to register the association by name "Thagam Kalai

Kudumbam". Therefore, he went to the District Register Officer, Cuddalore

on 05.10.2007 to register his association.

3. The appellant K.Selvadhurai who was serving as Assistant in the

Office of the District Registrar Office, Cuddalore received this application

on 16.10.2007 and after perusing the documents, instructed the defacto

complainant to pay a fee of Rs.555/- for the registration. Besides to pay

Rs.500/- as bribe to process the registration. The defacto complainant

promised to pay the registration fees of Rs.555/- and assured to pay the

bribe money while receiving the registration certificate. Since he was not

inclined to pay bribe, made a complaint to the respondent police about the

demand of illegal gratification by the appellant herein.

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

4. Pursuant to the complaint dated 24.10.2007 trap was laid and the

appellant was caught red handed with tainted money of Rs.300/- which he

accepted to receive, when the defacto complainant met him on 22.10.2007.

The demand and receipt of money was witnessed by the shadow witness/

P.W.3. Mahazar was drawn for the recovery after obtaining sanction to

prosecute the petitioner herein. On completion of the investigation, final

report was filed before the trial Court. The trial Court, after considering the

documents, framed charges under Section 7 and 13 (2) read with 13 (1) (d)

of Prevention of Corruption Act, 1988. To prove the charges, prosecution

has examined 16 witnesses and marked 37 Exhibits and also marked 5

material objects. In defence, the accused has marked three exhibits.

5. The case of the prosecution unravelled by the exhibits and

deposition as below:-

The complaint of P.W.1 marked as Ex.P.3 is dated 24.10.2007. In

this complaint, the defacto-complainant who was examined as P.W.2 has

stated that he met the accused on 16.10.2007 for registration of his

documents. On that day, the first demand of Rs.500/- was made by the

accused. Again he went to the District Register Office on 22.10.2007 after

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

giving him the receipt for Rs.555/-, the accused made 2 nd demand. The

defacto complainant bargained with him and settled for Rs.300/-. The

accused/appellant them told the defacto complainant to come on 24.10.2007

with the bribe money. Reporting the same, the complaint dated

24.10.20107, which is marked as Ex.P.2 given to the Inspector of Police,

Vigilance and Anti-corruption, Cuddalore at 9.00 hours. This complaint

being taken up and registered in Crime No. 07 of 2007. Two official

witnesses were called to witnesses the trap. The Entrustment Mahazar

Ex.P.4 prepared between 11.15 to 12.15 hours. The trap team proceeded to

the District Register Office and reached there at 12.30 hours and met the

accused on 12.50 hours. At that time, the accused demanded Rs.300/- then

smeared with Phenolphthalein Powder was handed over to the accused.

After receiving the pre-arranged signal from P.W.2/defacto complainant, the

trap team headed by Inspector of Police/P.W.14 entered into the office and

had conducted Phenolphthalein Test in the hands of the accused. Thereafter

Rs.300/-, kept in the pant pocket of the accused was recovered under the

Mahazar Ex.P.9. The hand wash samples sent to the laboratory was tested

in the lab by P.W.11 and the report Ex.P.35 discloses the presence of

Phenolphthalein and Sodium carbonate in the hand wash solution. Though

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

the defacto complainant/P.W.2 turned hostile, the trial court relying upon

Section 20 of the Prevention of Corruption Act has convicted the appellant to

under go six months of RI and to pay a fine of Rs.1,000/- in default, one

month of RI for the offence under Section 7 of Prevention of Corruption Act,

1988 and one year RI and to pay a fine of Rs.1000/- in default, two months

R.I for the offence under Section 13(2) r/w 13(1)(d) of Prevention of

Corruption Act, 1988.

6. The defence taken by the accused was that the money was received

towards small savings targets and there was target to each office to collect

small savings from the public, this was disbelieved by the Trial Court for the

reason ground that if the appellant/accused had collected Rs.300/- from

P.W.2, for small savings then there is no necessity for P.W.2 to give a

complaint before Vigilant and Anti-corruption alleging the accused demands

illegal gratification for registering the association. Furthermore, if the money

was received for small savings scheme then on receipt of the money, the

accused ought to have issued receipt for the same. In the absence of any

receipt, the explanation given by the accused found not satisfactory or

possible explanation to rebut the presumption under Section 20 of

Prevention of Corruption Act, 1988.

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

7. The learned senior counsel appearing for the appellant submitted

that the trial court miserably failed to appreciate the evidence appropriately

and the defence exhibits marked as Ex.D.1 to Ex.D.3. and the testimony of

P.W.4, the District Registrar, Cuddalore who had deposed that Rs.15 lakhs

was fixed as target for the Register Office, Cuddalore towards the collection

of small savings from the public and each staff of the Register Office has

been given the task of collecting small savings from the public ignored by

the trial court.

8. As far as, the accused is concerned, he was assigned to collect

Rs.2,60,000/- as per Ex.D.3. P.W.2 the defacto complainant has also admits

that he gave Rs.300/- for the small savings. Since he did not support the

earlier statement, he was treated hostile by the prosecution. When the

possible explanation given by the accused for the possession of the tainted

money corroborated the key prosecution witness, the trial court ought to

have accepted the same. In-spite of discharging the onus of proof by

rebuttal evidence, the trial court ignored the same and on relying the

evidence of the shadow witness examined as P.W.3 has erroneously

convicted the accused.

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

9. The learned Senior Counsel for the appellant reading through the

evidence of the P.W.3 and the seizure mahazar marked as Ex.P.5 submitted

that even P.W.3, the shadow witness has not whispered that the tainted

money was received by the accused as illegal gratification. The

contemporaries document namely the recovery mahazar marked as Ex.P.9

only say that on 24.10.2007, when the defacto complainant met the accused,

enquiring whether he has brought the money. The enquiry officer does not

querry does not qualify whether he has brought the bribe money. While the

accused has explained what he demanded and receive from PW.2 was the

money for small savings and to support the explanation he had marked

Ex.D1 to D3, which are minutes of the District Officers Review Meeting

fixing target to every office by the Collector. The trial court have ignored

the same for convicting the appellant.

10. The learned Government Advocate (Crl.Side) for the state would

submit that the trial court has rightly declined to accept the explanation of

the accused, since the minutes of the District Officers, review meeting and

the target and the proceedings of the District Collector, were of the month

April, whereas the incident took place 6 months thereafter on 24.10.2007.

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

The trial court rightly disbelieved the case of the accused, since the receipt

was not given to the defacto complainant for the money received.

11. The learned Senior counsel as rebuttal to his contention, referring

the evidence of P.W.6, submitted the receipts to be issued by Joint Registrar

Grade-I, after collecting the small savings amount from the public. Receipts

never issued immediately after collecting the money. The learned Senior

Counsel also refers the testimony of P.W.2 which say that even before he

could collect the receipt, the police/trapping officer along with his team has

come and caught the accused/appellant. Hence submitted the trial court

judgment is liable to be set aside for want of proof beyond doubt.

12. Heard, the counsels and records perused.

13. The case where the trap though ended successfully, the defacto

complainant who has set the law in to motion has turned hostile. The case

of the prosecution is that the documents presented for registration on

16.10.2007 along with the requisite fee of Rs.555/- dated 16.10.2007 was

registered on the same day and certificate of registration of society duly

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

signed by the Registrar of Societies on 16.10.2007 was with the accused till

24.10.2007 and recovered from him during the trap proceedings. The

accused does the receipt of Rs.300/- from PW.2 and keeping it in his Pant

pocket. His explanation been put as suggestion in the cross examination of

P.W.4, P.W.5 and P.W.6 along with the Ex.D.1 to D3. These are to the effect

that this money was received by him for the small saving collection. P.W.4

Kaliaperumal, who is the District Registrar of the Societies, Cuddulore had

spoken about the Ex.D1 to D3.

14. A perusal of the defence documents indicates that a meeting was

held at the District Collecotrate, Cuddalore to review the small saving target.

The proceedings dated 13.04.2007 indicates that it has been resolved to fix

previous year target as target for the year 2007-08. Subsequently, P.W.4 the

District Registrar has issued proceedings dated 24.04.2007 fixing Rs.2.60

lakhs as target for the Joint Registrar Grade-II. The total target for the

District Registrar Office, Cuddalore, been fixed as Rs.15 lakhs vide

proceedings dated 27.04.2007 issued by the District Collector.

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

15. On perusal of these three documents, this court find no closure

date fixed for achieving the target. Though as pointed out by the trial court

that on receipt of the money, accused has not given receipt, his explanation

through P.W.6 cross examination not been controverted by the prosecution.

Mere recovery of tainted money may not be sufficient to draw the

presumption under Section 20 of Prevention of Corruption Act. The

demand of illegal gratification is a foundational fact which the prosecution

has to prove beyond doubt. The defacto-complainant alone has spoken

about the demand of illegal gratification in his complaint Ex.B2 and he has

turned hostile. The shadow witness though deposed that he saw the accused

demanding money and also the receipt of it, what for he demanded the

money is not explained. In the absence of specific allegation and proof that

the said money was demanded as illegal gratification for registration of a

document, the explanation provided by the accused with the documentary

evidence as well as ocular evidence of the prosecution witnesses has to be

considered as possible explanation.

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

16. Therefore, this court is of the view that the appellant who had

given a possible explanation for receiving the money and that being

supported by oral evidence of P.W.4, P.W.5 & P.W.6, the benefit of doubt

has to be extended to the accused.

17. The Trial Court reasoning for not accepting the explanation offered

by the accused but giving predominance to the presumption clause under

Section 20 of Prevention of Corruption Act is improper. The statute only

expects possible and reasonable explanation to discharge the reverse

burden. Proof beyond doubt is not excepted to discharge the presumption

under Section 20 of Prevention of Corruption Act. The prosecution having

failed to prove beyond doubt that the money recovered from the accused is

illegal gratification and he demanded and accepted the conviction cannot

sustain purely on presumption. Further, the defacto complainant who set the

law in motion has failed to substantiate his complaint. This makes the

prosecution case week. Hence, the Criminal Appeal is allowed.

18. For the above said reasons, the Judgment of conviction, dated

26.08.2015 made in S.C.No.05 of 2008 on the file of the Special

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

Judge/Chief Judicial Magistrate, Cuddalore-District is hereby set aside. The

fine amount paid by the appellant, if any, shall be returned to the appellant.

Bail bond executed by the appellant, if any, shall stand discharged.

12.09.2023 Index : Yes/No Neutral Citation : Yes/No

Vv/mac

To

1. The Special Judge/Chief Judicial Magistrate, Cuddalore-District, Cuddalore

2. The Inspector of Police Vigilance and AntiCorruption Cuddalore District

3. The The Public Prosecutor, High Court, Madras.

https://www.mhc.tn.gov.in/judis Crl.A.No.567 of 2015

Dr.G.JAYACHANDRAN,J.

Vv/mac

Crl.A.No.567 of 2015

12.09.2023

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