Madras High Court

Mani vs State Of Tamilnadu on 2 January, 2024

Author: A.D.Jagadish Chandira

Bench: A.D.Jagadish Chandira

                                                             1

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      Date : 2.1.2024.

                                                          CORAM

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

                                          Criminal Appeal Nos.131 and 144 of 2019

                     Mani                                     Appellant in Crl.A.No.131/2019

                     Sankar @ Sivashankar                     Appellant in Crl.A.No.144/2019

                                       vs.

                     State of Tamilnadu,
                     rep. by Inspector of Police,
                     Vigilance & Anti Corruption Wing,
                     Namakkal,
                     Crime No.01/AC/2011.                     Respondent in both the Appeals


                                  Criminal Appeals filed under Section 374(2) of Cr.P.C. against
                     the judgment of conviction and sentence in Spl.C.C.No.20 of 2012
                     dated 28.2.2019           by the Special Judge/Chief Judicial Magistrate,
                     Namakkal.


                                  For Appellant in
                                  Crl.A.No.131/2019     : Mr.M.Devaraj

                                  For Appellant in
                                  Crl.A.No.144/2019     : Mr.N.Manokaran

                                  For Respondent        : Mr.S.Santhosh




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                                                   COMMON JUDGMENT

Challenging the judgment of conviction and sentence passed by

the Special Judge/Chief Judicial Magistrate, Namakkal in Special

C.C.No.20 of 2012, A1-Mani has filed Criminal Appeal No.131 of 2019

and A2-Sankar @ Sivashankar has filed Criminal Appeal No.144 of

2019.

2. A1-Mani was serving as Village Administrative Officer of

Konnaiyar Village from 18.10.2010 till 24.6.2011 and A2-Sankar @

Sivashankar was the Assistant to A1 and thereby, they are Public

Servants and A1 is alleged to have instigated to demand and obtain

an illegal gratification of Rs.1000/- from one Chandran for effecting

patta name transfer in respect of his land and A2, on the instruction

and instigation of A1, had demanded and obtained the illegal

gratification and thereby A1 had committed offences punishable under

Section 7 and Section 13(2) read with Section 13(1)(d) of the

Prevention of Corruption Act, 1988 and A2 had committed offences

punishable under Section 7 read with Section 12 and Section 13(2)

read with Section 13(1)(d) read with Section 109 of the Prevention of

Corruption Act, 1988.

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3. The conviction and sentence imposed by the Trial Court in

respect of A1 is as under:-

Penal Provision Sentence Section 7 of the Prevention of 3 years simple imprisonment and Corruption Act, 1988 a fine of Rs.2500/- in default to pay the fine, to undergo simple imprisonment for a period of one month.

Section 13(2) read with Section 3 years simple imprisonment and 13(1)(d) of the Prevention of a fine of Rs.2500/- in default to Corruption Act, 1988 pay the fine, to undergo simple imprisonment for a period of one month.

The sentences shall run concurrently.

4. The conviction and sentence imposed by the Trial Court in

respect of A2 is as under:-

Penal Provision Sentence Section 7 read with Section 12 of 3 years simple imprisonment and the Prevention of Corruption Act, a fine of Rs.2500/- in default to 1988 pay the fine, to undergo simple imprisonment for a period of one month.

Section 13(2) read with Section 3 years simple imprisonment and 13(1)(d) read with Section 109 of a fine of Rs.2500/- in default to the Prevention of Corruption Act, pay the fine, to undergo simple 1988 imprisonment for a period of one month.

The sentences shall run concurrently.

5. Brief facts of the case are as under:-

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i) A typewritten complaint dated 24.6.2011, Ex.P21 was lodged

by the de facto complainant, PW2, a resident of Konnaiyar Village,

Elachipalam, a coolie in power loom with the following contentions:-

Having purchased a land in Survey No.123/4 and built a house

there about twelve years prior to the relevant date, the de facto

complainant had applied for patta name transfer in Thiruchencode

Taluk Office about six months prior to the date of complaint. Both the

accused had conducted enquiry. Thereafter, the de facto complainant

had reminded A1 on two or three occasions for which he had replied

that after the patta is ready, he would intimate him. Whileso, on

22.6.2011, at about 12.30 pm, when the de facto complainant had

met A1 at his office and enquired about the patta, he had shown him

the patta and informed him that it was ready, however, it being a joint

patta, the de facto complainant had questioned the same for which, A1

had informed him that initially, joint patta alone could be issued and

later, separate patta could be obtained based on such joint patta and

he demanded Rs.1000/- as illegal gratification and kept the patta

inside the table. When the de facto complainant had requested him to

reduce the amount, he did not accept and insisted for the same

amount as a condition precedent for giving patta and hence, the de

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facto complainant had returned. Again on 23.6.2011, the de facto

complainant had met A1 and requested for patta, he insisted for his

demand of bribe and hence, the de facto complainant, who had no

interest in offering bribe, had lodged the complaint with the Vigilance

and Anti Corruption seeking initiation of action against A1-Mani.

ii) On receipt of the complaint at about 7.30 am on 24.6.2011,

PW11-K.Arangasamy, Inspector of Police, Vigilance and Anti

Corruption, Namakkal, had registered a case in Crime No.1/AC/2011,

under FIR, Ex.P22 for the offence punishable under Section 7 of the

Prevention of Corruption Act after enquiring into the veracity of the

complaint, conduct of the accused and after availing permission from

the Superintendent of Police.

iii) Thereafter, PW11 had submitted requisitions for deputing a

'B' Grade Officer from the Office of the Assistant Elementary Education

Officer, Namakkal and a 'C' Grade Officer from the office of the

Assistant Director, Horticulture Department after intimating the same

through phone. Accordingly, PW3-Pushpraj, Headmaster of Panchayat

Union Primary School, Abbinayakkanpalayam, deputed under the

proceedings, Ex.P28 and N.Ganesh, Assistant Agricultural Officer,

deputed under the proceedings, Ex.P29 had reported to PW11 at

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about 9.00 am. PW11 had introduced the de facto complainant to the

official witnesses and vice versa and apprised of the official witnesses,

the case details by furnishing the complaint and the FIR to them.

iv) When enquired about the bribe money, PW2 had produced

the same in the denomination of one 500 rupee note and five 100

rupee notes, whose serial numbers were entered in the entrustment

mahazar, Ex.P2.

v) With the assistance of one Natarajan, Head Constable and the

official witness Ganesh, a demonstration of trap and phenolphthalein

test was conducted to enable the official witnesses and the de facto

complainant to understand the significance of the test.

vi) Thereafter, PW11 had given instruction to PW2 to give the

bribe money only when A1 demands it and in such event, to come out

of the office of A1 and give a signal to the trap team by combing his

hair backwards with his hand. PW3 was instructed to be a shadow

witness and observe the happenings by accompanying PW2. After

destroying the sodium carbonate mixture used for demonstration of

trap and phenolphthalein test and the trap team having washed their

hands with soap, PW11 had prepared the entrustment mahazar, Ex.P2

from 900 to 9.30 am, signed the same and obtained signatures of the

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official witnesses and the de facto complainant. Enclosing the

entrustment mahazar and the complaint, the printed FIR was sent to

the court at about 9.45 am and thereafter, PW11 had enquired the de

facto complainant and recorded his statement.

vii) At about 10.00 am, PW11, alongwith the trap team, the de

facto complainant and the official witnesses proceeded in the official

Jeep accompanied by Constable Ambalatharasan in a bike an on

reaching the Konnaiyaru Junction at Rasipuram-Tiruchengodu Road,

PW2 and PW3 were sent to the office of A1 reminding them of the

instructions already given.

viii) Having sent PW2 and PW3 to meet A1, PW11, alongwith his

team reached Konnaiyaru village at about 11.25 am and was waiting

under a neem tree near the Integrated Child Welfare Centre for the

signal from the de facto complainant.

ix) At about 11.40 am, PW2, accompanied by PW3 came out of

the office of A1 and in front of the Ration Shop at Konnaiyaru, gave

the pre-arranged signal to the trap team indicating that bribe money

was accepted by the appellant.

x) When PW11, accompanied by the official witness Ganesh

approached the de facto complainant and enquired about the

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happenings, he had explained that when he, alongwith PW3, met the

appellant-Mani and asked for patta, he had asked as to whether PW2

had brought the bribe money and when PW2 had informed that he

brought the money, the appellant-Mani had instructed his assistant

viz., the appellant-Shankar to receive the bribe money and

accordingly, the appellant-Shankar had received the bribe money,

counted the same with both hands and confirming that it is Rs.1000/-,

kept the same in his left side pocket of his shirt and thereafter, the

appellant-Mani had handed over patta to PW2. The version of PW2

was reiterated by PW3.

xi) Thereafter, PW11 and the trap team had entered into the

office of the appellant. After PW2 had identified the appellants, PW11

asked PW2 to wait outside and introduced himself and the official

witnesses to the appellant. Thereupon, appellant-Mani became

nervous, got up from the seat and contended that he had not

demanded, but, it was only PW2, who had offered the money. When

enquired the appellant-Shankar, he also got nervous and admitted

that only on the instruction of the appellant-Mani, he had received the

money from PW2.

xii) After pacifying both the appellants and made them to sit,

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PW11 had arranged for sodium carbonate mixture in the presence of

the official witnesses, asked the appellant-Shankar to dip his each

hand into the solution separately and having found that the solution

turned pink, poured them into two separate glass bottles, sealed,

named them, signed on the labels, got signatures of the official

witnesses and the appellants and seized them as M.O.1 and M.O.2

under recovery mahazar, Ex.P3.

xiii) Thereafter, PW11 had arrested the appellant-Shankar at

about 1.00 pm assigning reason that he had, knowing fully well that

the appellant-Mani had made a demand of bribe for issuing patta, he

had been an accomplice to him and received the bribe money on his

behalf.

xiv) When enquired, the appellant-Shankar had produced the

bribe money from his left side pocket of the shirt. Having verified the

serial numbers of the said currency notes with the serial numbers

entered in the entrustment mahazar and found them tallied, seized the

same as M.O.5. Subsequently, PW11 had arranged for another

sodium carbonate mixture and dipped the shirt pocket of the

appellant-Shankar after providing an alternate dress to him and having

found that the solution turned pink, poured the solution into a

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separate glass bottle, named, sealed, signed on the label and got the

signatures of the official witnesses and the appellants and recovered

the same as M.O.3. PW11 had also recovered the shirt of A2 as

M.O.4.

xv) At this juncture, PW4-Jayaprakasam, Revenue Inspector (in

charge) of Elachipalayam had reached the spot having heard about the

incident. When PW11 had enquired the appellant-Shankar as to

whether he had any other amount, he had produced six 10 rupee

notes contending that it is his personal money he possesses for his

expenses and on such explanation, the same was returned to him.

When enquired for any further amount, he had produced another sum

of Rs.145/- from his table drawer and the same was also returned to

him.

xvi) On enquiry, the appellant-Mani had informed PW11 that the

de facto complainant had no dues of any tax to be paid to the

Government and A1 is not entitled to collect any amount towards

Small Savings, Flag Day collection, tax. Having vouched the revenue

records regarding collection of any money and found that the records

do not justify the possession of bribe money, PW11 had arrested the

appellant-Mani at about 11.40 pm. A recovery mahazar, Ex.P3 was

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prepared by PW11 from 11.50 am to 1.45 pm, signed the same and

obtained signatures of the official witnesses, PW4-Revenue Inspector,

the scribe of such report viz., Sub Inspector Rayar and issued a copy

of the same to the appellants after obtaining acknowledgment from

them. Recording the events an observation mahazar, Ex.P5 was

prepared, and rough sketch, Ex.P4 was drawn.

xvii) Thereafter, the patta issued by A1 to the de facto

complainant was recovered under a mahazar, Ex.P6, signed by PW11,

official witnesses and the de facto complainant. The patta so

recovered was marked as Ex.P7.

xviii) Subsequently, PW11, after intimating the court under

Ex.P24, made a search in the house of the accused in the presence of

witnesses from 3.00 to 3.30 pm and having found no incriminating

materials, made a report, Ex.P8, signed the same and obtained

signatures of the appellant-Mani and the official witnesses and issued a

copy of the same to the appellant-Mani.

xix) Thereafter, on reaching the Police Station at about 4.15 pm

alongwith the appellants, PW11 had prepared arrest memos and after

getting signatures of PW5 in the arrest memo of appellant-Shankar

and that of PW4 in the arrest memo of appellant-Mani, issued copy of

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the same to the appellants.

xx) Subsequently, PW11 had altered the penal provision of the

case from one under Section 7 to one under Sections 7, 13(2) read

with Section 13(1)(d) and 12 of the prevention of Corruption Act and

sent the alteration report, Ex.P25 to the court. Then, PW11 had sent

the material objects under Form 91 marked as Ex.P26 and the

documents seized with a requisition letter to the court. On completing

his investigation, PW11 had sent the case file to PW12-K.Murugesan,

Inspector of Police, Vigilance and Anti Corruption for further

investigation.

xxi) PW12, who took up the case for further investigation on

27.6.2011, enquired P.Ws.2, 3 and one Ganesh and recorded their

statements. He also enquired PW5 and recorded his statement. He

issued requisition letter to the Tahsildar, Thiruchencode seeking for the

documents relating to the case and sent requisition, Ex.P27 to the

court for sending the material objects to Forensic Sciences

Department. On 5.7.2011, he enquired PW6-Gunasekaran, PW7-

Periyasamy PW8-Vijayaramesh and witness Vel Prakash and recorded

their statements. On 1.8.2011, he enquired PW9-Chellamuthu, who

furnished the documents relating to the case and recorded his

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statement. On 5.8.2011, he collected a certified copy of chemical

analysis report, Ex.P20, enquired PW10-S.Kala, Deputy Director,

Forensic Sciences Department and recorded her statement. On

10.8.2011, he enquired the witness Saraswathi and the appellants

individually and recorded their statements. On 11.8.2011, he

enquired PW11, Inspector of Police and recorded his statement.

Thereafter, PW12 had sent his investigation report to the Directorate

seeking permission to proceed further. On the basis of his final report,

he received permission from the Directorate on 8.12.2011 and

thereupon, he submitted the case documents to PW1-Kavitha,

Revenue Divisional Officer on 19.3.2012 and on receipt of sanction

granted by PW1 to proceed against the appellant-Mani, he enquired

her on 28.6.2012 and recorded her statement. On completion of his

investigation, PW12 had filed the final report in the court on 4.7.2012.

xxii) The case was taken on file in Special C.C.No.20 of 2012 by

the Special Judge/Chief Judicial Magistrate, Namakkal. On

summoning, the Appellants/accused appeared. Copies of relevant

papers were furnished to the Appellant/accused under Section 207 of

Cr.P.C. and charges were framed. The accused had denied the

charges and sought for trial.

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xxiii) In support of their case, the prosecution had examined

P.Ws.1 to 12 and marked Exs.P1 to P30 and produced Mos.1 to 5.

xxiv) On completion of the evidence, the appellant/accused was

questioned under Section 313 Cr.P.C. as to the incriminating

circumstances found in the evidence of prosecution witnesses and the

accused had stated that they had been falsely implicated in the case,

however, no witness was examined nor any document was marked on

their side.

xxv) The Trial Court, on considering the entire materials, found

the appellant/accused guilty and imposed the punishments, as referred

to above, which is under challenge in the present Criminal Appeal.

6. The submissions of Mr.M.Devarj the learned counsel

appearing for the appellant in Criminal Appeal No.131 of 2019 are as

under:-

i) The judgment of conviction rendered by the Trial Court is

against law, weightage of evidence and probabilities of the facts and

circumstances of the case.

ii) In this case, PW2, the author of the complaint himself had

turned hostile and not supported by the case of the prosecution.

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Though he admitted to have signed in blank paper at the instance of

his wife, he had specifically denied the signature in the complaint,

Ex.P21, the signature in Column 14 of Ex.P22 FIR and the signature in

Ex.P2 entrustment mahazar, however, nothing worthwhile has been

elicited by the prosecution by way of cross examination.

iii) Though PW2 has turned hostile, the prosecution can prove its

case by letting in evidence by any other witnesses, who can either let

in evidence either orally or by documentary evidence or the

prosecution can prove its case by circumstantial evidence. However,

in this case, the prosecution has miserably failed to prove its case

either orally or by documentary evidence or by circumstantial

evidence.

iv) The solitary evidence of PW3, shadow witness is bristled with

embellishments, exaggerations and material contradictions, thereby

making the case of the prosecution doubtful and thereby, his evidence

has to be scrutinized with due care and caution to rely the same for

rendering the judgment of conviction, However, the Trial Court has

erred in convicting the appellants/accused based on his evidence, with

regard to demand and the evidence of PW11, Trap Laying Officer with

regard to recovery.

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v) The complaint is said to have been lodged at 7.30 am and the

case was registered at 7.30 am itself, whereas, it is the evidence of

PW3 that he received the intimation at 7.00 am itself to assist the

respondent in the trap proceedings. There is nothing on record to

show how PW3 was intimated even prior to receipt of the complaint

and such a discrepancy creates doubt as to whether he was really

intimated about the trap proceedings, more particularly, when there

are contradictions in the evidence of PW3 when compared with the

evidence of PW11 Trap Laying Officer, which would go to show that

everything has been stage managed.

vi) The presence of PW3, shadow witness is doubtful and the

discrepancies found in the documents relied on by the prosecution

would go to show that the entire registration of the case, preparation

of entrustment mahazar, Ex.P2, preparation of recovery mahazar,

Ex.P3 are done at the office of the respondent to create a stage

managed trap.

vii) As per the charge sheet, the demand was said to be made

1-1/2 months prior to 22.6.2011 and the long delay in preferring the

complaint has not been properly explained by the prosecution.

viii) The entire prosecution case with regard to registration of

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FIR, pre-trap proceedings, trap proceedings is suspicious and the Trial

Court has failed to see that the prosecution had not proved the case

beyond all reasonable doubts.

ix) In this case, even as per the prosecution, recovery is said to

have been made from A2, who is a private individual, without any

connection whatsoever with A1 and no legal evidence has been let in

by the prosecution to prove that A2 was engaged by A1 in this case

and that he was connected with the official matters of A1 and thereby,

the prosecution has failed to prove its case beyond all reasonable

doubts and the Trial Court has erred in convicting A1 based on the

evidence of PW3 which lacks credence and thereby, he would seek for

acquittal of the appellant.

7. The submissions of Mr.N.Manokaran, learned counsel for the

appellant in Criminal Appeal No.144 of 2019 are as under:-

i) The appellant in this case is not at all connected with A1.

Other than the alleged recovery of tainted money from A2, there is

absolutely no evidence to show that A2 had demanded any money

from the de facto complainant.

ii) The prosecution has not let in any evidence to show that A2

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was either personally employed by A1 or he was attached to the office

of A1.

iii) PW5, Village Assistant, who was working under A1 and PW4,

Revenue Inspector have stated that they had not received any

application nor any complaint in respect of A2 working under A1.

iv) Proof of demand of illegal gratification is gravamen to the

offence under Section 7 and Section 13(2) read with Section 13(1)(d)

of the Prevention of Corruption Act and in the absence of evidence

regarding a demand, the case of the prosecution would fail. Mere

acceptance of any amount allegedly by way of illegal gratification or

recovery thereof, de hors the proof of demand, ipso facto, would not

attract the offence alleged by the prosecution and thereby he would

seek to allow the appeal.

8. Per contra, Mr.S.Santhosh, learned Government Advocate

(Criminal Side) appearing for the respondent would submit his

arguments as under:-

In the case on hand, though the de facto complainant has not

supported the case of the prosecution and he was treated hostile, his

evidence cannot be written off altogether, but, it must be considered

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with due care and circumspection and that part of the testimony which

is creditworthy must be considered and acted upon and merely a

witness has been declared “hostile” it does not result in an automatic

rejection of his evidence and the court can find corroboration from the

other witnesses, if it is found to be reliable and when the case of the

prosecution is corroborated by other witnesses, the Trial Court can

convict the accused. In the event of the complainant turning hostile

during trial, the prosecution can prove the demand of illegal

gratification by letting in evidence of any other witnesses, who can let

in evidence, either orally or by documentary evidence and the

prosecution can also prove the case by circumstantial evidence. The

prosecution has proved the demand on the date of trap by the

evidence of PW3, shadow witness, who has categorically spoken about

the demand made by A1 and the instructions given by him to the de

facto complainant to hand over the money to A2, receipt of the bribe

money by A2 and keeping of the same in his pocket. He has also

spoken about the phenolphthalein test conducted and the test having

become positive, the explanation given by A2 when enquired about the

money in his possession, recovery of the tainted money from the

possession of A2, tallying of serial numbers of the currency notes with

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the serial numbers entered in the entrustment mahazar, Ex.P2. A2

was not able to explain the possession and recovery of the tainted

money from him and though the de facto complainant has not

supported the case of the prosecution, the prosecution has proved its

case with the evidence of PW3, the shadow witness and other

materials and raised the presumption against the appellant/accused

and based on such evidence, the Trial Court has found the accused

guilty and there is no infirmity or illegality in the judgment rendered

by the Trial Court and thereby, he would seek for dismissal of the

appeals.

9. In reply by Mr.Manokaran, learned counsel for the appellant in

Criminal Appeal No.131 of 2019 would submit that though the

presumption under Section 20 is available for the prosecution, before

raising the statutory presumption, a bounden duty is cast upon the

prosecution to prove the foundational facts and in this case, the

presumption has failed to prove the case beyond all reasonable

doubts.

10. Heard the learned counsel appearing for the parties and

perused the materials available on record.

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11. The allegation against the appellants is demand of illegal

gratification for patta name transfer. The case of the prosecution is

that A1, who was working as Village Administrative Officer at

Konnaiyar Village had unofficially engaged A2, a private individual for

his assistance and A2 had received bribe money on behalf of A1 from

the de facto complainant on 24.6.2011 and based on the complaint,

Ex.P21, a trap was laid by PW11 and A2 was caught red handedly and

when enquired, he had pointed out A1 contending that only on the

instruction of A1 and on his behalf, he had received the bribe money.

12. While it is case of A1 that the entire trap is a stage managed

one and he has been falsely implicated in the case based on a

statement alleged to have been given by A2, who is not at all

connected with A1, it is the case of A2 that other than the alleged

recovery of tainted money, absolutely, there is no evidence to show

that A2 had demanded any money from the de facto complainant.

13. Needless to say that proof of demand and acceptance by

public servant is sine qua non for establishing the offence under

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Section 7 of the Prevention of Corruption Act and by merely proving

recovery of money without proving demand and acceptance, the

prosecution cannot succeed. To arrive at a conclusion with regard to

demand and acceptance, we need to analyse the complaint lodged by

the de fact complainant and the evidence adduced by the de facto

complainant, official/shadow witness and the Trap Laying Officer.

14. Strangely, in this case, the de facto complainant had turned

hostile and he had not supported the case of the prosecution. During

his examination in chief, the de facto complaint, PW2 had denied to

have given a complaint to PW11. Other than signing in bank papers at

the instance of his wife with a view to obtain patta, he has abruptly

denied his signatures in Ex.P21-complaint, column 14 of P22-FIR and

Ex.P2-entrustment mahazar. Though he was subjected to a detailed

cross examination by the prosecution, nothing worthwhile has been

elicited by the prosecution. No steps have also been taken by the

prosecution to prove that PW2 has signed in Ex.P21, P22 and P2

entrustment mahazar. This court also compared the signatures

obtained from PW2 in the deposition before the court and found that it

did not tally with the signatures found in Exs.P21, P22 and Ex.P22.

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15. Before proceeding further, it is also relevant to note that the

defence had taken a stand that the charge framed by the Trial Court

discloses that a demand was made by A1 1-1/2 months prior to

22.6.2011, however, the complaint, Ex.P21 was lodged on 24.6.2011

and there is no explanation by the prosecution for such a long delay.

16. In this regard, a perusal of the complaint, Ex.P21, alleged to

have been lodged by the de facto complainant itself, would disclose

that the patta name transfer application was given at the Taluk Office,

Thiruchencode six months prior to the complaint and the first demand

of bribe alleged in the complaint happens to be on 22.6.2011,

peculiarly, the charge framed by the Trial Court is to the effect that

1-1/2 months prior to the complaint, a demand of bribe was made by

A1. Even during the cross examination by the prosecution, the same

theory was suggested to PW2, the de facto complainant on his turning

hostile. Such an ambiguity on the part of prosecution goes to the root

of the case.

17. Remaining piece of evidence available with regard to the

demand on the date of trap and the recovery is tainted money is the

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evidence of PW3, official/shadow witness and PW11, Trap Laying

Officer. Though the official/shadow witness is claimed to be an

independent witness, the probability that he could be witness

interested in the prosecution case cannot be brushed aside, especially,

when the de facto complainant has turned hostile and thereby the

evidence of PW3, official witness has to be scrutinized with due care

and caution and only if the court comes to the opinion that the

evidence of the official/shadow witness is credible, it can come to a

conclusion to convict the accused.

18. When such care and caution is exercised, this court could

find that the entire case of the prosecution with regard to registration

of the complaint and the trap proceedings is shrouded with suspicion.

So far as the evidence of PW3 is concerned, he had deposed that he is

working as Headmaster in a School and his specific evidence is that he

had reported before PW11 at 9.00 am on 24.6.2011. When he was

cross examined, he contended very strangely that he received the

intimation at 7.00 am itself on 24.6.2011 to assist PW11 in the trap

proceedings and directly from his residence, he went to the office of

the Vigilance and Anti Corruption and reported before PW11. PW3 is

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not specific as to whether it was a written information or an oral one.

Further, he also admitted that he has not made any entry in the

visitors book maintained in the office of the respondent with regard to

his attendance before the respondent.

19. Such being the version of PW3, the evidence of PW11 does

not corroborate with the evidence of PW3. PW11 had specifically

deposed that PW2 had came to his office and lodged a written

complaint at 7.30 am on 24.6.2011 and after conducting a preliminary

enquiry, he had registered a case in Crime No.1/AC/2011 on the same

day at 7.30 am itself. Further, the acknowledgment in Ex.P21-

complaint discloses that it was received only at 7.30 am and Ex.P22,

printed FIR also discloses the same time. When receipt of complaint by

PW11 itself was at 7.30 am, it is highly improbable that an instruction

to PW3 to assist PW11, even an oral instruction, could have been

issued by his higher official at 7.00 am itself giving room to suspect his

credibility.

20. In this regard, though the prosecution has marked Ex.P28

and P29, letters of permission issued by the superior officers of PW3

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and yet another official witness, those documents have not been sent

to the court immediately and they had been sent to the court only at

the time of filing the final report. In this case, though PW11 had

deposed that he had made a request through telephone and later, sent

a written request to the superior officials, no such written request had

been produced before the court or marked by the prosecution. All

these aspects create a strong doubt with regard to the attendance of

PW3 at the office of PW11 and the assistance alleged to have been

rendered by him to PW11 in the trap proceedings.

21. Now, coming to the entrustment mahazar, Ex.P2, PW2 has

denied having signed the same. Sofar as Ex.P3, recovery mahazar is

concerned, the signature of PW3 has been affixed in some pages with

date and in some pages, it is without any date and more particularly,

at page 6, after affixing his signature in respect of trap proceedings on

24.6.2011, PW3 has affixed his signature with the date "26.6.2011".

Further, in this case, PW11, the Trap Laying Officer, though admitted

to have sent written requests to the superior officer of PW3 and other

official witness, they have not been marked during evidence nor

produced before the court for perusal. All the above discrepancies

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found in the above documents and the delay in sending the letters of

permission issued to the official witnesses in Exs.P28 and P29 to the

court cumulatively create a doubt about the case of the prosecution

with regard to request trap proceedings.

22. On a careful analysis, this court finds that there are

several discrepancies and infirmities in the prosecution case with

regard to registration of the case and the trap proceedings. As stated

above, admittedly, the de facto complainant had not only turned

hostile, but also, he he has denied the signatures in various

documents, however, the prosecution has not taken any steps to

compare the signatures with the signatures found in the

contemporaneous documents in the manner known to law.

23. In this case, the recovery is said to have been made from

A2. However, no legal evidence has been let in by the prosecution to

prove that A2 was personally employed by A1 and there was any

connection between them and there is no specific allegation of demand

of money as against A2. The Constitution Bench of the Apex Court in

Neeraj Dutta vs. State Government, NCT of Delhi has held as

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under:-

"87. Therefore, this Court cautioned that even if a

witness is treated as “hostile” and is cross-examined,

his evidence cannot be written off altogether but

must be considered with due care and

circumspection and that part of the testimony which

is creditworthy must be considered and acted upon.

It is for the Judge as a matter of prudence to

consider the extent of evidence which is creditworthy

for the purpose of proof of the case. In other words,

the fact that a witness has been declared “hostile”

does not result in an automatic rejection of his

evidence. Even, the evidence of a “hostile witness” if

it finds corroboration from the facts of the case may

be taken into account while judging the guilt of the

accused. Thus, there is no legal bar to raise a

conviction upon a “hostile witness” testimony if

corroborated by other reliable evidence.

88. What emerges from the aforesaid

discussion is summarised as under:

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88.1.(a) Proof of demand and acceptance of

illegal gratification by a public servant as a fact in

issue by the prosecution is a sine qua non in order to

establish the guilt of the accused public servant

under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

88.2. (b) In order to bring home the guilt of

the accused, the prosecution has to first prove the

demand of illegal gratification and the subsequent

acceptance as a matter of fact. This fact in issue can

be proved either by direct evidence which can be in

the nature of oral evidence or documentary

evidence.

88.3. (c) Further, the fact in issue, namely,

the proof of demand and acceptance of illegal

gratification can also be proved by circumstantial

evidence in the absence of direct oral and

documentary evidence.

88.4. (d) In order to prove the fact in issue,

namely, the demand and acceptance of illegal

gratification by the public servant, the following

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aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe-giver

without there being any demand from the public

servant and the latter simply accepts the offer and

receives the illegal gratification, it is a case of

acceptance as per Section 7 of the Act. In such a

case, there need not be a prior demand by the public

servant.

(ii) On the other hand, if the public servant

makes a demand and the bribe-giver accepts the

demand and tenders the demanded gratification

which in turn is received by the public servant, it is a

case of obtainment. In the case of obtainment, the

prior demand for illegal gratification emanates from

the public servant. This is an offence under Sections

13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the

offer by the bribe-giver and the demand by the

public servant respectively have to be proved by the

prosecution as a fact in issue. In other words, mere

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acceptance or receipt of an illegal gratification

without anything more would not make it an offence

under Section 7 or Sections 13(1)(d)(i) and (ii),

respectively of the Act. Therefore, under Section 7 of

the Act, in order to bring home the offence, there

must be an offer which emanates from the bribe-

giver which is accepted by the public servant which

would make it an offence. Similarly, a prior demand

by the public servant when accepted by the bribe-

giver and in turn there is a payment made which is

received by the public servant, would be an offence

of obtainment under Sections 13(1)(d)(i) and (ii) of

the Act.

88.5. (e) The presumption of fact with regard

to the demand and acceptance or obtainment of an

illegal gratification may be made by a court of law by

way of an inference only when the foundational facts

have been proved by relevant oral and documentary

evidence and not in the absence thereof. On the

basis of the material on record, the court has the

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discretion to raise a presumption of fact while

considering whether the fact of demand has been

proved by the prosecution or not. Of course, a

presumption of fact is subject to rebuttal by the

accused and in the absence of rebuttal presumption

stands.

88.6. (f) In the event the complainant turns

“hostile”, or has died or is unavailable to let in his

evidence during trial, demand of illegal gratification

can be proved by letting in the evidence of any other

witness who can again let in evidence, either orally

or by documentary evidence or the prosecution can

prove the case by circumstantial evidence. The trial

does not abate nor does it result in an order of

acquittal of the accused public servant.

88.7. (g) Insofar as Section 7 of the Act is

concerned, on the proof of the facts in issue, Section

20 mandates the court to raise a presumption that

the illegal gratification was for the purpose of a

motive or reward as mentioned in the said Section.

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The said presumption has to be raised by the court

as a legal presumption or a presumption in law. Of

course, the said presumption is also subject to

rebuttal. Section 20 does not apply to Sections

13(1)(d)(i) and (ii) of the Act.

88.8. (h) We clarify that the presumption in

law under Section 20 of the Act is distinct from

presumption of fact referred to above in sub-para

88.5(e), above, as the former is a mandatory

presumption while the latter is discretionary in

nature.

89. In view of the aforesaid discussion and

conclusions, we find that there is no conflict in the

three-Judge Bench decisions of this Court in

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

55 : (2014) 5 SCC (Cri) 543] and P. Satyanarayana

Murthy [P. Satyanarayana Murthy v. State of A.P.,

(2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] with the

three-Judge Bench decision in M. Narsinga Rao [M.

Narsinga Rao v. State of A.P., (2001) 1 SCC 691 :

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2001 SCC (Cri) 258] , with regard to the nature and

quality of proof necessary to sustain a conviction for

the offences under Sections 7 or 13(1)(d)(i) and (ii)

of the Act, when the direct evidence of the

complainant or “primary evidence” of the

complainant is unavailable owing to his death or any

other reason. The position of law when a complainant

or prosecution witness turns “hostile” is also

discussed and the observations made above would

accordingly apply in light of Section 154 of the

Evidence Act. In view of the aforesaid discussion, we

hold that there is no conflict between the judgments

in the aforesaid three cases.

90. Accordingly, the question referred for

consideration of this Constitution Bench is answered

as under:

In the absence of evidence of the complainant

(direct/primary, oral/documentary evidence) it is

permissible to draw an inferential deduction of

culpability/guilt of a public servant under Section

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7 and Section 13(1)(d) read with Section 13(2)

of the Act based on other evidence adduced by

the prosecution."

24. In the case on hand, PW2/de facto complainant has turned

hostile. Though he speaks in his chief examination about his

applying for name transfer in the patta and approaching the accused in

furtherance, he denies having given the complaint with the Vigilance

and Anti Corruption. PW2 claims to be a Weaver by profession. His

specific evidence is that an unknown person had approached him and

got his signature on a blank paper as if it was required for getting

patta and he had not at all lodged any complaint as claimed by the

prosecution. He specifically denies the signature in the complaint.

However, the prosecution has not taken any effort for comparing of

the signature in the complaint with the admitted signatures of PW2 in

the contemporaneous documents. The version of PW2, in chief

examination, being a total denial of the case of the prosecution, a

reading of the cross examination of PW2 reveals that the prosecution

has not taken any effort to cross examine him properly to bring out

the truth. The entire cross examination is nothing but a mere

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reproduction of the prosecution version running several pages tagging

all the factual aspects as claimed by the prosecution and ultimate

recording of a vague denial of all the contentions alleged to have been

made by the de facto complainant in just a single sentence including

his statements about his approaching for patta name transfer, which

discloses the mechanical manner in which the cross examination was

conducted.

25. In such circumstances, the court has to look into the

evidence of PW3, official/shadow witness and PW4, Trap Laying

Officer. This court had already pointed out the discrepancies with

regard to registration of the case, preparation of entrustment mahazar

and recovery mahazar. In this case, A2 is a private individual. The

tainted money is said to have been recovered from A2. In such

circumstances, mere acceptance of allegedly illegal gratification,

recovery thereof, de hors proof of demand, would not be sufficient to

bring home the charges under Sections 7 and Section 13(2) read with

Section 13(1)(d) of the Prevention of Corruption Act, 1988.

26. In this regard, it will be useful to refer to the decision in

P.Satyanarayana Murthy vs. District Inspector of Police, State

of Andhra Pradesh and another (2015) 10 SCC 152), wherein, a

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Full Bench of the Apex Court has held as under:-

"20. This Court in A. Subair v. State of Kerala

[(2009) 6 SCC 587 : (2009) 3 SCC (Cri) 85] ,

while dwelling on the purport of the statutory

prescription of Sections 7 and 13(1)(d) of the Act

ruled that (at SCC p. 593, para 28) the

prosecution has to prove the charge thereunder

beyond reasonable doubt like any other criminal

offence and that the accused should be considered

to be innocent till it is established otherwise by

proper proof of demand and acceptance of illegal

gratification, which are vital ingredients necessary

to be proved to record a conviction.

21. In State of Kerala v. C.P. Rao [(2011) 6

SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2

SCC (L&S) 714] , this Court, reiterating its earlier

dictum, vis-à-vis the same offences, held that

mere recovery by itself, would not prove the

charge against the accused and in absence of any

evidence to prove payment of bribe or to show

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that the accused had voluntarily accepted the

money knowing it to be bribe, conviction cannot be

sustained.

22. In a recent enunciation by this Court to

discern the imperative prerequisites of Sections 7

and 13 of the Act, it has been underlined in B.

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

55 : (2014) 5 SCC (Cri) 543] in unequivocal terms,

that mere possession and recovery of currency

notes from an accused without proof of demand

would not establish an offence under Section 7 as

well as Sections 13(1)(d)(i) and (ii) of the Act. It

has been propounded that in the absence of any

proof of demand for illegal gratification, the use of

corrupt or illegal means or abuse of position as a

public servant to obtain any valuable thing or

pecuniary advantage cannot be held to be proved.

The proof of demand, thus, has been held to be an

indispensable essentiality and of permeating

mandate for an offence under Sections 7 and 13 of

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the Act. Qua Section 20 of the Act, which permits

a presumption as envisaged therein, it has been

held that while it is extendable only to an offence

under Section 7 and not to those under Sections

13(1)(d)(i) and (ii) of the Act, it is contingent as

well on the proof of acceptance of illegal

gratification for doing or forbearing to do any

official act. Such proof of acceptance of illegal

gratification, it was emphasised, could follow only

if there was proof of demand. Axiomatically, it was

held that in absence of proof of demand, such

legal presumption under Section 20 of the Act

would also not arise.

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 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

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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."