Madras High Court
T.Thirvengada Narayana vs State Rep By on 15 May, 2025
Crl.A(MD)No.522 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 11.12.2024
Pronounced on : 15.05.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A.(MD)No.522 of 2018
T.Thirvengada Narayana ... Appellant
vs.
State Rep by
The Inspector of Police,
Vigilance and Anti Corruption Wing,
Tuticorin District.
Crime No.10 of 2015 ...Respondent
PRAYER: Criminal Appeal has been filed under Section 374 (2) of
Criminal Procedure Code to admit this appeal to call for the records
from the Lower Court and to set aside the judgment passed by the
Special Court for Prevention of Corruption Act cum Chief Judicial
Magistrate, Tuticorin District, in Special C.C.No.7 of 2017 dated
25.10.2018.
For Appellant :Mr.K.Balasundaram Senior Counsel
for M/s.A.Devaki
For Respondent :Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
*****
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Crl.A(MD)No.522 of 2018
JUDGMENT
The sole accused in Spl.C.C.No.7 of 2007, on the file of the
learned Chief Judicial Magistrate, Thoothukudi has filed this appeal
challenging the judgment dated 25.10.2018 passed by the Special Court
for Prevention of Corruption Act cum Chief Judicial Magistrate,
Tuticorin District whereby, the learned trial Judge has convicted the
appellant for the offence under Sections 7, 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act and sentenced him to undergo two years
rigorous imprisonment and a fine of Rs.2,000/-, in default, to undergo 3
months simple imprisonment for the offence under Section 7 of the
Prevention of Corruption Act, 1988; and to undergo two years rigorous
imprisonment and a fine of Rs.2,000/-, in default, to undergo six months
rigorous imprisonment for the offence under Sections 13(2) r/w 13(1)(d)
of the Prevention of Corruption Act, 1988 for committing his
misconduct under prevention of Corruption Act. Challenging the same,
the appellant filed this appeal before this Court.
2. The case of the prosecution is that P.W.2's father Chellaiya
Nadar had a house in door No.14 of Krishnapuram Street. He applied for
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water connection for the said house. He also paid the legal charge of Rs.
4,110/-. He approached the accused on 20.12.2005 and he demanded to
pay a sum of Rs.1,200/- as bribe and also directed him to pay the
property tax of Rs.67/- and he asked to bring the said bribe amount on
23.12.2005. Therefore, he gave a complaint to the vigilance department
on 23.12.2005 and the same was registered in Crime No.10 of 2005 for
the offence punishable under Section 7 of the Prevention of Corruption
Act, 1988 and trap arrangement was made by calling the two official
witnesses P.W.3 and another witness. After the investigation, the final
report was filed before the trial Court and the same was taken on file in
Spl.S.C.No.7 of 2007.
3. After that the learned trial Judge served the copies to the
accused/appellant under Section 207 Cr.P.C and framed necessary
charges. After framing the charges, he questioned the accused/appellant
and the accused/appellant denied his involvement and pleaded not guilty
and he stood trial.
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4. To prove the case, the prosecution examined P.W1 to P.W12
and marked Ex.P1 to Ex.P22 and also marked M.O1 to M.O7. On
putting the incriminating materials by way of questioning him under
Section 313 Cr.P.C, the accused denied the same as false. On the side of
the defence a friend of the appellant was examined as D.W1 and Ex.D1
was marked.
5. The learned trial Judge considered the same and specifically
disbelieved the evidence of D.W.1 and declined to accept the defence of
the accused that he received the amount towards tax arrears for the
house tax Rs.4.110/- and held that the defence was false and held that
the amount was received as illegal gratification and convicted the
appellant and passed the impugned judgment. Aggrieved over the same,
the appellant has filed this appeal against the impugned judgment.
6. The learned Senior counsel Thiru.K.Balasundaram would
submit that the demand was not proved in accordance with law. When
there was arrears of property tax for the family members of P.W.2, the
amount was received by the appellant towards the tax arrears of his
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family members and the same was not properly considered by the
learned trial Judge. The receipt of the amount will not be offence unless
the prosecution proved that the amount was paid as illegal gratification.
The appellant's friend has been examined as defence witness/D.W.1 to
prove that there were tax arrears for the family members of P.W.2. The
same was not properly considered by the trial Court. The learned Senior
counsel further submitted that to prove the arrears, he produced the
document Ex.D1. The learned trial Judge failed to give due importance
to the evidence of defence witness and disbelieved the evidence of
defence witness without valid reason. Therefore, the case of the defence
that he received the amount towards the tax arrears is probablised and
the same was not properly considered.
7.The learned Senior Counsel further submitted that no valid
sanction was accorded by P.W.1 under Ex.P1. In Ex.P1 there is mention
of the receipt of material documents but no material was annexed.
Therefore, there was non-application of mind in granting sanction.
Therefore, the learned Senior counsel seeks to set aside the conviction
and sentence passed by the learned trial Judge.
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8. The learned Additional Public Prosecutor on the other hand
would submit that the learned trial Judge has correctly considered that
the defence of the appellant was false one and it was stage managed
defence and the same was not disclosed at the time of trap proceedings.
In the said circumstances, the defence that there was tax arrears was
false and to substantiate the same, the learned trial Judge has considered
all the documents and hence, the defence of the accused that amount was
received towards the tax arrrear is not correct and also he received the
amount as bribe and the same was clearly proved through the evidence
of P.W.2 and P.W.3. The learned trial Judge correctly held that the
demand and acceptance was clearly proved beyond reasonable doubt.
The learned trial Judge also considered that P.W.1 granted sanction in
accordance with law after applying his mind. In the said circumstances,
the submission of the learned Senior Counsel is not correct. The
prosecution clearly proved the demand, acceptance and the presumption
under Section 20 of the Prevention of Corruption Act, 1988 would apply
and the rebuttal evidence produced by the defence was correctly rejected
by the learned trial Judge. Hence, he seeks to confirm the conviction and
sentence imposed against him.
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9. This Court considered rival submissions made by the learned
Senior counsel appearing for the appellant and the learned Additional
Public Prosecutor appearing for the respondent and perused the
materials available on record and the precedents relied upon by them.
10. Now the question is whether the conviction and sentence
passed against the appellant is in accordance with law?
11. The case of P.W.2 is that, his father Chellaiya Nadar had a
house in No.14 Krishnan Kovil Sathankulam. He submitted an
application to get water connection under Ex.P6 on 16.04.2005. He also
paid an amount of Rs.4,110/- as legal charge including for the
installation of the pipe. There was also a demand of payment of another
sum of Rs.760/- and the same was also paid under Ex.P5 on 01.12.2005.
The property tax arrears of Rs.67/- also was paid on 08.06.2005 under
Ex.P7. In spite of that, the appellant demanded a sum of Rs.1,200/- and
further property tax of Rs.67/-. On 20.12.2005, the appellant made the
demand of Rs.1,200/- as bribe for giving water connection and also
directed P.W.2 to bring the amount on 23.12.2005. On 23.12.2005, he
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gave the complaint to P.W.5/ TLO and he perused the complaint and the
document annexed with it and registered the case and called P.W.3 and
another official witness, namely, Sannasi. Therafter, P.W.5/TLO
demonstrated the phenolphthalein test in the presence of P.W.3 and
another official witness. After demonstration with the amount brought
by P.W.2, he prepared the entrustment mahazar and also instructed P.W.2
to approach the accused officer and on his demand, he directed him to
give the bribe amount P.W.3 was directed to accompany him and watch
the transaction taking place between them. P.W.2 approached the
appellant at his office along with P.W.3 and the appellant re-iterated the
demand of Rs.1,200/- apart from the receipt of Rs.100/- towards the
arrears of the property tax. Further he demanded a sum of Rs.2,450/- for
the tax for his brother's shop. He also handed over the said amount.
Thereafter, the appellant asked to come and receive the tax receipt on the
following day, stating that he had already closed the account. Thereafter,
he gave the signal and the same was received by P.W.5/Trap Laying
Officer and he went to the accused's office and conducted the test in the
hands of the appellant and the wash turned pink in color and he handed
over the money of Rs.1,200/- apart from the receipt of Rs.100/- towards
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the arrears amount. The same was recovered under the mahazar in the
presence of the official witness and also the other officers of the
appellant's office. Then the appellant was arrested. In this background,
this Court is going into the merits of this appeal.
12. Discussion on proof of demand and acceptance:
As stated above, P.W.2 clearly stated that the appellant demanded
bribe amount and also reiterated the demand on the date of the trap ie, on
23.12.2005. P.W.3, who is the official witness has no motive towards the
appellant and he also deposed about the reiteration of demand on
23.12.2005. Apart from that, the other circumstance that he ws keeping
the file in his custody also proved that he had been waiting for payment
of bribe amount. Further the evidence of PW2 and PW3 also are clear,
cogent and trustworthy. PW2 and PW3 were subjected to incisive cross
examination but nothing was elicited to disbelieve their version relating
to the demand and acceptance of the amount. Therefore, this Court holds
that the prosecution has proved the demand and acceptance.
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13.Discussion on defence:
The only defence raised by the appellant is that he received the
amount but the said amount was received towards the property tax
arrears.
13.1. The learned trial Judge considered the evidence of D.W.1 in
all angles and held that the evidence was false one. The learned trial
Judge considered that there was no arrears on the date of the Trap.In this
case, the evidence of D.W.1 suffers from inherent infirmities and the
defence was false one on the basis of the documents. The learned trial
Judge in paragraph Nos.33 to 37 has clearly discussed about the same.
13.2.The Hon'ble Constitution Bench of the Supreme Court in the
case of Dhanvantrai Balwantrai Desai v. State of Maharashtra [1963
Supp (1) SCR 485 has held as follows:
“Therefore, the Court has no choice in the
matter, once it is established that the accused
person has received a sum of money which was
not due to him as a legal remuneration. Of
course, it is open to that person to show that
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though that money was not due to him as legal
remuneration, it was legally due to him in some
other manner or that he had received it under a
transaction or an arrangement which was lawful.
The burden resting on the accused person in such
a case would not be as light as it is where a
presumption is raised under Section 114 of the
Evidence Act and cannot be held to be
discharged merely by reason of the fact that the
explanation offered by the accused is reasonable
and probable. It must further be shown that the
explanation is a true one. The words ‘unless the
contrary is proved’ which occur in this provision
make it clear that the presumption has to be
rebutted by ‘proof ’ and not by a bare explanation
which is merely plausible. A fact is said to be
proved when its existence is directly established
or when upon the material before it the Court
finds its existence to be so probable that a
reasonable man would act on the supposition
that it exists. Unless, therefore, the explanation is
supported by proof, the presumption created by
the provision cannot be said to be rebutted.
***
Something more than raising a reasonable
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probability, is required for rebutting a
presumption of law. The bare word of the
appellant is not enough and it was necessary for
him to show that upon the established practice
his explanation was so probable that a prudent
man ought, in the circumstances, to have
accepted it.”
13.3.The Hon'ble Supreme Court in the following judgments has
held that if the defence was projected at the time of proceedings under
Section 313 of Cr.P.C., without disclosing the same at the time of the
trap, Courts should be slow in accepting the same unless the defence is
established through evidence.
13.3.1. In the case of State of Maharashtra v. Rashid B.Mulani,
reported in (2006) 1 SCC 407 has held as follows:
10. ... courts are wary of accepting belated
explanations given for the first time in the statement
under Section 313 and not at the first available
opportunity.
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13.3.2.In the case of A. Abdul Kaffar v. State of Kerala, reported
in (2004) 9 SCC 333 has held as follows:
6... The very fact that he failed to mention this to
the IO at the first available opportunity, shows that
this defence is not genuine....
13.3.According to the defence witness/D.W.1, the amount was
paid towards the arrears of the tax. To consider the said plea, this Court
went through the evidence of all the witnesses and also the documents.
The defence was belated defence and there was no explanation given at
the time of recovery.
13.4.D.W.1 is a chance witness and he has not produced any
document to mark his presence in the office of the appellant on that day.
According to him, he came from Chennai on 22.03.2005 by train and
reached the appellant's house and went to his office. No document like
train ticket was produced. It is well settled principle that the presence of
the chance witness should be proved through the evidence. Even after
his evidence, the appellant told him to pay the arrears of tax, otherwise,
his higher official would question him. There is no evidence that amount
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was received towards tax arrears. Hence, presence of D.W.1 is doubtful
and also his evidence is not corroborated by the defence of the appellant.
13.5.It is the specific case of the appellant that he had received the
amount towards arrears of tax. As per the evidence of P.W.2 and
documents, P.W.2 sought water connection to his house in door No.14
of Krishnapuram Street. All taxes had already been paid. The amount
relating to the arrears of his brother, namely, Sivalingam, his house is
situated at some other place and not connected to the present house and
he is no way concerned with the same. P.W.7, then Executive Officer of
the panchayat in cross examination deposed that there was no arrears of
tax for the house of P.W.2 and P.W.2's brother, Sivalingam, namely,
P.W.5 has got a separate house situated at some other place and its tax
due was Rs.2,445/-. P.W.7 in cross examination stated that arrear amount
for Sivalingam's house was Rs.3,166/-. P.W.2 made the application to
give water connection on 16.04.2005 and paid Rs.4,110/- on that day.
Thereafter, he paid Rs.760/- on 01.12.2005. On the date of the trap, P.W.
2 paid Rs.100/- towards the arrears of tax as per demand made by the
appellant. Further sum of Rs.2,450/- also was demanded by the appellant
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towards the arrears for P.W.2' brother's house and also the same was
paid. Apart from that, he demanded the bribe amount of Rs.1,200/- and
the same was also paid. The appellant placed Rs.2450/- and Rs.100/- a
part and the bribe amount of Rs.1,200/- a part. All the above amounts
were recovered by the Trap Laying Officer. In the said factual
circumstances, the appellant's case of receipt of the amount towards the
arrears of P.W.2's brothers house is not only false and also not matched
with any of the circumstances, ie., arrears amount according to P.W.7's
cross examination is Rs.3,166/- and the appellant received the arrears
amount as Rs.2,550/-. P.W.10 stated that arrears is only Rs.1,702/-.
Therefore, he received the amount as arrears for P.W.2's house is not
only belated and also false. Even assuming that, the said due was
Rs.1,702/-, in the circumstances stated above, demand and acceptance of
Rs.1,200/- as bribe amount is no way connected with said arrears. He
paid Rs.4,110 as legal charges towards drinking water connection
Therefore, this belated defence without corroboration of D.W.1's
evidence deserves to be rejected.
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14. The trial Court also discussed about the material contradiction
between Ex.P1 and the evidence of D.W.1. Apart from that, the amount
was demanded for the drinking water connection. In the said
circumstances, this Court finds no merit in this criminal appeal and the
same is liable to be dismissed. P.W.1 in his evidence, clearly stated that
he applied his mind and granted sanction, which reads as follows:
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mDkjp cj;juT gp.1.
15.The operative portion of Ex.P1 is as follows:
Where as I Collector, Thoothukudi being the
authority competent to remove the said Tr. T.
Thiruvengada Narayanan from office after carefully
examining the materials such as the FIR in Cr.No.
10/2005 of Thoothukudi Detachment of Vigilance and
Anti-Corruption, statements of witnesses and Accused,
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Mahazars Report of the Director Vigilance and Anti-
Corruption, Chennai read above and other connected
records placed before me in regard to the said
allegations and circumstances of the case, am satisfied
that it is necessary in the interest of justice to prosecute
Tr. T.Thiruvengada Narayanan in court of law for the
aforesaid offences.
Now therefore u/s 19(1) of the Prevention of
Corruption Act 1988 (Central Act of 49/1988) I do
hereby accord sanction for the prosecution of
Tr.T.Thiruvengada Narayanan, Bill Collector (under
suspension) of Sathankulam Town Panchayat office and
for taking cognizance of the said offences by a court of
competent jurisdictions.
16. In Ex.P1 also there is a clear mention about the application of
the mind. In the said circumstances, this Court finds no merit in the
contention of the learned Senior counsel, that the sanction officer has
not applied his mind to the facts of the case.
17. Hence, this Court finds no merit in the contention that the
prosecution failed to prove the offence under Sections 7, 13(2) r/w 13(1)
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(d) of the Prevention of Corruption Act, 1988. But, considering the age
and also the medical records submitted before this Court, this Court
reduces the sentence passed against him from 2 years to 1 year.
18.Accordingly, this Criminal Appeal stands partly allowed on
the following terms:
(i)the conviction and sentence of imprisonment imposed against
the appellant for the offences punishable under Sections 7, 13(2) r/w
13(1)(d) of the Prevention of Corruption Act, 1988 by the learned Chief
Judicial Magistrate, Tuticorin, Tuticorin District, vide judgment dated
25.10.2018 in S.C.No.07 of 2017, is hereby confirmed.
(ii) the sentence of imprisonment to undergo two years rigorous
imprisonment and a fine of Rs.2,000/-, in default, to undergo 3 months
simple imprisonment for the offence under Section 7 of the Prevention
of Corruption Act, 1988; and to undergo two years rigorous
imprisonment and a fine of Rs.2,000/-, in default, to undergo 3 months
simple imprisonment for the offence under Section 13(2) r/w 13(1)(d)
of the Prevention of Corruption Act, 1988
is modified into
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“to undergo one year rigorous imprisonment for the offence
under Section 7 of the Prevention of Corruption Act; and to undergo one
year rigorous imprisonment for the offence under Section 13(2) r/w
13(1)(d) of the Prevention of Corruption Act, 1988 and the said
sentences are to run concurrently and the judgment relating to the
fine amount is hereby confirmed”.
(iii)The period if already undergone by the appellant is ordered to
be set off under Section 428 of Cr.P.C.
(iv)The Bail bond executed by the appellant herein is hereby
cancelled and the Court below is hereby directed to take steps to secure
the appellant to undergo the remaining period of sentence of
imprisonment.
19. List this case on 27.06.2025 under the caption for “reporting
compliance”.
15.05.2025
Index :Yes / No
Internet :Yes / No
NCC :Yes / No
sbn
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K.K.RAMAKRISHNAN, J.
sbn
To
1.The Chief Judicial Magistrate,
Tuticorin District.
2.The Inspector of Police,
Vigilance and Anti Corruption Wing,
Tuticorin District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Record Section (Criminal)
Madurai Bench of Madras High Court, Madurai.
15.05.2025
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