M. Chidambaram and M.S. Jayaprakash Narayanan vs State

A. Selvam, J.—The conviction and sentence dated 19.02.2002 passed in special Calendar Case No. 3 of 1995 by the Additional District

cum Chief Judicial Magistrate Court, Pudukkottai, are now under challenge.

The contraction of the prosecution case is that during the relevant period, the first accused viz., Jayaprakash Narayanan has served as Revenue

Inspector, Gandarvakottai Firka, Pudukkottai District. The second accused has served as Village Administrative Officer of Thachankurichi Village,

Gandarvakottai Taluk and both the accused are public servants as defined u/s 2(c) of the Prevention of Corruption Act, 1988. On 21.07.1994,

the complainant viz., Manoharan has submitted a petition to the Assistant Director of Mines, Pudukkottai for getting license so as to take gravel

from a patta land and on 23.08.1994 he approached the second accused for getting copies of Chitta, Adangal, F.M.B Extract, etc. and the

second accused has demanded a sum of Rs. 2,000/- as illegal gratification for himself and on behalf of the first accused. On 24.08.1994 the

complainant has met the first accused and he has also demanded the said amount of Rs. 2,000/- from the complainant. On 26.08.1994 the

complainant has met the first accused and stated his inability to pay Rs. 2,000/-. The first accused has reduced the quantum of amount to the tune

of Rs. 1,500/- and directed the complainant to pay the same on 29.08.1994. The second accused has also accepted the amount fixed by the first

accused and directed the complainant to pay the same either to him or to the first accused. on 29.08.1994 the complainant has given the complaint

which has been marked as Ex. P2 to the Vigilance and Anti-corruption Cell, Pudukkottai and as per the direction of the Inspector of Police,

Vigilance and Anti-corruption, the complainant and trap witness by name Subramanian have met the first accused on the same day at about 7.35

p.m. at Deputy Thasildar''s Quarters in Gandarvakkottai. The first accused has demanded and obtained the said amount of Rs. 1,500/- from the

complainant as illegal gratification. Under the said circumstances, the accused have committed offences under Sections 7 of the Prevention of

Corruption Act 1988 read with 34 of the Indian Penal Code and also under Sections 13(2) read with 13(1)(d) of the Prevention of Corruption

Act, 1988 and also u/s 201 read with 511 of the Indian Penal Code.

After occurrence, PW9, Inspector of Police, Vigilance and Anti-corruption, Pudukkottai and PW10, another Inspector of Police of the same

Cell, have conducted investigation and after completing the same, laid a final report on the file of the trial Court.

On the basis of the alleged culpability of the accused, the trial Court has framed necessary charges against them and the same have been read

over and explained to them. The accused have denied the charges and claimed to be tried. On the side of the prosecution, PWs. 1 to 10 have

been examined and Exs. P1 to P14 and Nos. 1 to 5 have been marked. When the accused have been questioned u/s 313 of the Code of Criminal

Procedure, as respects the incriminating circumstances appearing in evidence against them, they denied their complicity in the crimes. On the side

of the accused, DWs. 1 to 3 have been examined and Exs. D1 to D4 have been marked.

The trial Court, after evaluating the evidence available on record, has found the first accused guilty u/s 7 of the Prevention of Corruption Act,

1988 read with 34 of the Indian Penal Code and also under Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and

sentenced him to undergo two years rigorous imprisonment for each offence and also directed him to pay a fine of Rs. 1000/- for each offence

with default clause. The trial Court has also found the second accused guilty u/s 7 of the Prevention of Corruption Act, 1988 read with 34 of the

Indian Penal Code and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced him to undergo two years rigorous

imprisonment for each offence and also directed him to pay a fine of Rs. 1,000/- for each offence with default clause. Against the conviction and

sentence passed by the trial Court, the first accused as appellant has filed Criminal Appeal No. 372 of 2002 and the second accused as appellant

has filed Criminal Appeal No. 298 of 2002.

Since common questions of law and facts are involved in both the appeals, common judgment is pronounced.

The crux of the prosecution case is that the complainant viz., Manoharan has submitted an application to the Assistant Director of Mines,

Pudukkottai for getting license to take gravel from a patta land and he approached the second accused for getting copes of Chitta, Adangal, etc.

and the second accused has demanded Rs. 2,000/- by way of illegal gratification for himself and also for the first accused. On 24.08.1994 the

complainant met the first accused and told that the second accused has demanded Rs. 2,000/- by way of illegal gratification and the first accused

has also demanded the same amount. On 26.08.1994 the complainant has met the first accused and requested him to reduce the amount and he

reduced the amount to the extent of Rs. 1,500/- and accordingly the first accused has received the same on 29.08.1994 at about 7.30 p.m. in

Deputy Thasildar''s Headquarters at Gandarvakkottai.

The entire case of the prosecution hinges upon Ex. P2, complaint dated 29.08.1994. In Ex. P2 the complainant has clearly and vividly described

the amount of illegal gratification initially demanded by the second accused and subsequently reduced by the first accused.

The complainant by name Manoharan has been examined as PW2. He has stated in his evidence that he is a resident of Melavasthirachavadi,

Thanjavur and he is doing the business of taking gravel and sent the same through lorries. He has been permitted to take gravel from the land of

one Sambanthamoorthy which situates in Thachchangurichi Village, Gandarvakkottai Taluk. He approached the Mines Department and they

directed him to pay Rs. 1,500/- in the name of the District Collector and on 21.07.1994 he submitted an application for getting necessary license

along with a demand draft for a sum of Rs. 1,500/- and after lapse of one month from 21.07.1994, he met the concerned officials of Mines

Department and they told that his application has been sent to Taluk Office, Gandarvakkottai. He asked the Deputy Thasildar about his application

and he told that the same has been sent to the Village Administrative Officer (Second accused) and he met the second accused and the second

accused has demanded Rs. 2,000/- by way of illegal gratification for granting copies of documents which he required and the second accused has

also told that said money is not only for him but also for the first accused viz., Jayaprakash Narayanan and the complainant has subsequently met

the first accused and he told about the demand made by the second accused and the first accused has told him that the amount fixed by the second

accused is correct. On 25.08.1994 he once again met the first accused and expressed his inability to pay the amount quoted by both the accused.

The first accused has directed him to come and meet him on 26.08.1994 and accordingly he met him in his residence and he fixed the amount at

Rs. 1,500/- and he has also directed him to bring the amount on 29.08.1994. Further he has stated in his evidence that on 29.08.1994 he met the

Inspector of Police, Vigilance and Anti-corruption and given the complaint which has been marked as Ex. P2 and on the same day, at about 5.15

p.m. the witnesses namely Subramanian and Visveswaran have come to the office of the Vigilance and Anti- corruption Cell, Pudukkottai and both

of them have read Ex. P2 and ascertained its genuineness and subsequently he has given Rs. 1,500/- (fifteen hundred rupees notes), to PW9,

Inspector and PW9 has observed necessary formalities and also prepared mahazar and he subsequently directed him and the witness Subramanian

to go to the residence of the first accused and accordingly both of them have gone to the residence of the first accused and the first accused has

asked him as to whether he has brought the amount demanded by him. He replied that he is having the amount demanded by him and subsequently

he has given Rs. 1,500/- to the first accused. The first accused has counted the same and subsequently placed the same in the right side pocket of

his pant and thereafter he has given the signal as stated by the Inspector and the Inspector and others have entered into the residence of the first

accused and enquired the first accused and prepared mahazar.

The trap witness by name Subramanian has been examined as PW3. He has stated in his evidence that during the relevant period he served as

Superintending Engineer in Tamil Nadu Electricity Board, Pudukkottai. On 29.08.1994 at about 4.15 p.m. his Higher Official has directed him to

go to the office of Vigilance and Anti-corruption Cell and accordingly he has gone there and after some time, the other witness by name

Visveswaran, who is serving in Forest Department, has also come there and both of them have been introduced to PW2 and both of them have

read Ex. P2 and ascertained its genuineness from PW2. The Inspector of Police has received Rs. 1,500/- from PW2 and subsequently he

observed all required formalities and thereafter he directed him and PW2 to go and meet the first accused and accordingly he and PW2 have met

the first accused in his residence and the first accused has demanded money from PW2 and PW2 has given Rs. 1,500/- to the first accused and

the first accused has counted the same and subsequently placed the same in his right side pant pocket and thereafter, both of them have come out

from the residence of the first accused and PW2 has given necessary signal and thereafter, he, Inspector of Police, and others have entered into the

residence of the first accused. On seeing them, the first accused has thrown the amount in question through a Window. The Inspector of Police has

enquired the first accused and the first accused has stated that he has thrown out money and the Inspector of Police has directed the other witness

by name Visveswaran to collect the same and accordingly he has done the same. The Inspector of Police has seized Rs. 1,500/- and subsequently

he has conducted Phenolphthalein test.

PWs. 5 to 7 have spoken about the petition given by PW2 for getting necessary license. PW1, District Revenue Officer, speaks about the

passing of necessary sanction order so as to launch the prosecution against the accused. Ex. P14 is a Chemical Analysis report, wherein it has

been clearly stated that in all the materials sent for chemical examination, phenolphthalein and Sodium Carbonate have been detected. Therefore,

from the evidence of the witnesses referred to supra as well as exhibits mentioned above, it is very clear that the prosecution has clearly established

that on 29.08.1994 the first accused has received a sum of Rs. 1,500/- from PW2 viz., complainant for himself and also on behalf of the second

accused as illegal gratification.

Before considering the argument advanced by the learned Counsel appearing for the first accused, the Court has to consider the argument

advanced by the learned Counsel appearing for the second accused.

The learned Counsel appearing for the second accused has sparingly contended the during the relevant period the second accused has served

as Village Administrative Officer and he has no connection whatsoever with the application alleged to have been given by PW2 and absolutely no

demand has been made by him from PW2 and the prosecution has also failed to establish that the amount in question has been received by the

second accused and further the prosecution has failed to explain the delay which occurred in lodging Ex. P2, complaint, but the trial Court has not

at all considered the above vital aspects and erroneously found the second accused guilty under the Sections mentioned in the charges and

therefore, the conviction and sentence passed by the trial Court against the second accused are liable to be set aside.

In support of the above contention, the learned Counsel appearing for the second accused has drawn the attention of the Court to the following

decisions;

a) The first and foremost decision is reported in State of Tamil Nadu Vs. S. Krishnamurthy, wherein the alleged demand of bribe has been made

during the month of September 1988 and the alleged payment of the same has been made on 19.09.1988 and under the said circumstances, the

Honourable Apex Court has held that the delay occurred on the part of the prosecution in lodging complaint, cannot be admitted and the accused

is entitled to get acquittal.

b) The second decision is reported in 2005 C L J 5114 (Pandharinath Shelke v. The State of Maharashtra) (Bombay High Court), wherein it has

been specifically held that mere recovery of money from accused not sufficient to raise presumption against him.

With these legal backdrops, the Court has to analyse the present case on the basis of the available facts and circumstances. The specific

evidence of PW2 is that he submitted an application to the Mines Department, Pattukkottai for getting necessary license on 21.07.1994 and after a

lapse of one month, he met the Assistant Director of the said Department and he told that he sent his application to Taluk Office, Gandarvakkottai

and subsequently known that his application has been sent to the second accused and he meet the second accused and requested him to give

copies of Chitta, Adangal, etc. and the second accused has demanded Rs. 2,000/- by way of bribe for himself and also for the first accused.

Therefore, it is quite clear that the prosecution has clearly established the demand made by the second accused. Further PW2 has stated that on

24.08.1994 he met the first accused and told him that the second accused has demanded Rs. 2,000/- by way of bribe and the first accused has

told that he will give possible reply only after asking the second accused. On 25.08.1994 he once again met the first accused in his residence and

he asked him to come next day and further the first accused has directed him to come on 26.08.1994 and accordingly he has gone to the residence

of the first accused on 26.08.1994 and seen both the accused and the first accused has fixed the quantum of bribe amount at Rs. 1,500/- and

further they directed him to bring the said amount on 29.08.1994 and on 29.08.1994 he has given the complaint viz., Ex. P2. Therefore, it is quite

clear that there is no delay in Ex. P2. PW2 has further stated in his evidence that on 29.08.1994 he has given the amount in question to the first

accused in his residence along with PW3 viz., Subramanian. From the evidence of PW2, the Court can easily discern that the first accused has

received the amount for himself and also for the second accused. Further it is not an exaggeration to say that the clear evidence of PW2 is a

befitting answer to all the contentions raised on the side of the second accused. Under the said circumstances, the above limb argument advanced

by the learned Counsel appearing for the second accused is totally contra to the evidence available on record and the same can be eschewed.

At this juncture, the learned Government Advocate (criminal side) has befittingly drawn the attention of the Court to the decision reported in

2004 Madras Law Journal (Criminal) 869 (M. Ramachandran v. The State represented by Deputy Superintendent of Police, Vigilance and Anti-

corruption Department, Salem) wherein this Court has held that the evidence showed that the second accused going out of the office demanded

money even though initially it originated from the first accused which amounts to negotiation for demand as well as acceptance of bribe attracting

the provisions of the Act. Both the accused are guilty.

In the instant case, the prosecution has adduced replete evidence through PW2 so as to prove that the initial demand made by the second

accused and the specific evidence of PW2 is that the second accused has demanded Rs. 2,000/- by way of bribe for himself and also for the first

accused. The prosecution has also adduced evidence to the effect that the first accused has fixed the quantum of amount and at the time of fixing

quantum of amount the second accused has also been present and ultimately the first accused has received the quantum of amount fixed by him on

29.08.1994 from PW2. Therefore, there is no dubitation in coming to a conclusion that the first accused has received Rs. 1,500/- by way of bribe

from PW2 for himself and also for the second accused. Since the original demand of bribe has been made by the second accused for himself and

also for the first accused and ultimately the first accused has received the said sum of Rs. 1,500/- by way of illegal gratification from PW2, it is very

clear that both the accused should be mulcted with punishment as per the Sections mentioned in the charges.

Now the Court has to analyse the novel argument advanced by the learned Counsel appearing for the first accused. The learned Counsel

appearing for the first accused has contended with great vehemence that the first accused has had no connection whatsoever with the alleged

transaction between PW2 viz., complainant and the second accused and on 29.08.1994 PW2 has come to his residence and he called him and

PW2 has immediately thrusted money in question into his shirt pocket and the first accused has taken out and thrown the same through the window

which situates in the northern wall of his residence and therefore, the first accused cannot be held liable for the alleged offences and the trial Court

has not at all considered the defence taken on the side of the first accused and therefore, the conviction and sentence passed by the trial Court

against the first accused are liable to be set aside.

At this juncture, the juxta-position of the residence of the first accused has to be looked into with the aidence of Ex. P8, rough sketch. The

specific case of the prosecution is that the first accused has received the amount in question from the sit out of his residence and subsequently gone

inside and on seeing police party, he immediately thrown the same through northern window. If really PW2 has suddenly thrusted the amount in

question into the shirt pocket of the first accused while he has been in sit out, definitely, he could not have thrown the same through the northern

window which situates some distance away from sit out and further if the first accused has actually decided to throw out the money in question,

definitely, he could have thrown the same in front of sit out. Therefore, the argument advanced by the learned Counsel appearing for the first

accused is nothing but his brainwave and the same cannot be accepted.

Even at the risk of jarring repetition, the Court would like to point out that in the instant case, plethora of evidence are available so as to prove

the alleged demand made by both the accused and also acceptance of the bribe amount by the first accused. At this juncture, it would be apropos

to look into Section 20 of the Prevention of Corruption Act, 1988 and the same reads as follows;

(1) Where in any trial of an offence punishable u/s 7 or Section 11 or Clause (a) or Clause (b) of Sub-section (1) of Section 13 it is proved that an

accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification

(other than legal remuneration), or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or

obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is

mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Whether in any trial of an offence punishable u/s 12 or under Clause (b) of Section 14, it is prove that any gratification (other than legal

remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed,

unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a

motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be

inadequate.

(3) Notwithstanding anything contained in Sub-sections (1) and (2), the Court may decline to draw the presumption referred to in either of the said

Sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.

From the close reading of the provision of the said Section, the Court can easily ken that if the prosecution has proved that the concerned

accused has accepted or agreed to accept any gratification, then the Court shall draw presumption which is available under the said Section.

In the instant case, as noted down earlier in many places, the prosecution has clearly proved the original demand made by the second accused

to the tune of Rs. 2,000/- and subsequently fixed by the first accused to the tune of Rs. 1,500/- and the same has been received by him for himself

and also for the second accused.

The learned Counsel appearing for both the accused have also advanced their residual argument stating that PW4 viz., Chandran is not a

reliable witness and prior to the alleged occurrence, he has cut and removed a tree which belonged to the Government and the same has been

detected by the second accused and subsequently he has been fined and therefore, he is having animosity against the second accused and under

the said circumstances, his evidence cannot be considered.

Of-course it is true that during the course of cross examination PW4 has denied the payment of fine imposed against him. Further PW4 has

been examined only for the purpose of the alleged demand made by the second accused and even assuming without conceding that PW4 is not a

reliable witness, the prosecution has adduced replete evidence so as to prove the alleged demand and also acceptance by both the accused by

way of examining PWs. 2 & 3. It is not an exaggeration to say that the evidence of PWs. 2 & 3 remained uncontroverted. Therefore, the last limb

of argument advanced by the learned Counsel appearing for the appellants/accused is no use.

The trial Court after assessing all the evidence available on record, has rightly found the accused guilty under the Sections mentioned supra and

in view of the foregoing narration of both the factual and legal premise, this Court has not found even a flimsy ground to make interference with the

well merited judgment passed by the trial Court and altogether the present criminal appeals deserve dismissal.

In fine, these criminal appeals deserve dismissal and accordingly are dismissed. The conviction and sentence passed in Special Calendar Case

No. 3 of 1995 by the Additional District cum Chief Judicial Magistrate Court, Pudukkottai are confirmed. If the appellants/accused are not in

duress, the trial Court is directed to immure them in prison so as to serve out the remaining period sentence.