R. Rajendran vs DSP. Vigilance and Anticorruption, Madras

N. Arumugham, J

This appeal is directed against the judgment of conviction and sentence rendered by the Second Additional Special Judge. Madras Division, in C.C. No. 42 of 1992 dated 7.10.1993 against the accused Appellant, finding him guilty for the offences under Sections 7 and 13(2) read with Section 13(l)(d) of the Prevention of Corruption Act and whereupon, sentencing him to undergo rigorous imprisonment for a period of one year with the fine of Rs. 1,000/- in default of payment of which, to undergo rigorous imprisonment for a further period of three months.

The gravamen of the charge against the accused/appellant by the prosecution is extracted as follows:

The accused who is the Appellant was the Grade I Executive Officer of Arulmighu Venkatesa Perumal Thirukkoil, being maintained and organised by a mutt popularly known as Biragi Madam, situated in Madras town, which owns the properly and premises bearing number 18, Veerappan Street at Sow-carpet, Madras. During the year 1991. P.W.2 Thiru. Sckar along with his brother and father was the occupant of a portion of the said premises as tenant and he was doing plastic business in a portion of the same. The said building consisted of six portions out of which, it has been slated that two portions were in the occupation of his deceased father till his life time and another portion was standing in the name of his brother Arunachalam for tenancy and that since his father died in the year 1983. one portion of his father was transferred to his brother''s name and another was transferred to the name of this witness in the year 1990. Therefore, P.W.2 was deemed to be tenant of one portion and also another portion in the name of his father and after his father''s death, the portion occupied by this father was divided into two and both were sub let for one laundry and lo one sweetstall and the quantum of the rent for all the three portions was Rs. 1,860/- and the said quantum of rent was being paid by P.W.2 himself. On 25.2.1991, a notice was issued to all the tenants in the said premises demanding the payment of the rent with 100 per cent enhancement and the copy served to P.W.2 is Ex.P.2 and Ex.P.3 is another copy served in the name of his father and for which, the tenants'' association decided to pay the rent with the enhancement by 10 per cent alone and accordingly, each tenant has given the reply individually and Ex. P. 4 and Ex.P.5 are the replies sent by P.W.2 for himself and on behalf of his deceased father respectively. Subsequently, the President of the tenants'' association was slated to have talked over with the temple authorities and arrived at a consensus lo increase the rent by 33 1/3 per cent for those who were tenants for more than three years and for those who were for lesser period at 25 per cent. P.W.2 has claimed further that he was sent for by the Appellant on 6.9 1991 at about 3 p.m. on that day and when he met the Appellant, he was informed that the enhancement of the rent by 33 1/3 per cent was not adequate and that however he was insisted to pay the enhanced rent with 50 per cent increase for the portion in his occupation and for which P.W.2 has declined, that the accused enhanced the rent for the shop in the name of P.W.2 by 25 per cent and for the shop in the name of his father by 33 1/3 per cent and for which, the accused/appellant demanded a sum of Rs. 6000/- as bribe P.W.2 had responded not to pay the said amount of Rs 6000/- which was not amenable for him. Therefore, it was the case of P.W.2 that the Appellant had called for Govindan. the Clerk P.W.4 and directed him to quantify the arrears for two months for himself and his father and that accordingly, P.W.4 quantified the arrears for himself and on behalf of his father at Rs. 6680/- in all under Ex.P.6 series. The demand thus made by the Appellant/accused according to P.W.2 is the arrears of rent amounting to Rs. 6680/- plus Rs. 6000/- as bribe to be paid on or before 19.9.1991 for having fixed the enhancement of rent by 25 per cent for P.W.2 himself and the enhancement of rent for the portion in the name of his father by 33 1/3 percent and acknowledging the said consensus, the accused/appellant had obtained two consent letters from P.W.2, which have been marked as Ex.P.7 and Ex.P.8 and that P.W.4 was present at that time. Twelve days after, on 18.9.1991 at about 4 p.m. P.W.2 claims to have met the accused and expressed his inability to pay Rs. 6000/- as bribe and for which, the accused/appellant bad asked him to come with Rs. 4000/- as bribe and with the arrears of rent quantified on the previous occasion to be paid on or before the next day before 4 p.m.. failing which, threatened to impose rentals with 50 per cent increase.

The above threat probably made P.W.2 to decide not to pay the bribe and consequently, on the next day, at about 1.10 p.m. he gave a written complaint Ex. P. 9 to P.W.9, which is the original First Information Report in this case. On his lodging the complaint. P.W.9 brought P.W.3 by name Radhakrishnan and another Rajagopalan and as per his instructions, P.W.2 handed over the amounts Rs. 4,000/- and Rs. 6,680/- which he had brought each separately. The amount of Rs. 4,000/- consisted of seven leaves of 500 rupees denominations and 5 leaves of 100 rupees denominations. P.W.9 noted down the numbers in all the currencies and asked P.W.3 and Rajagopalan to count the amount of Rs. 4.000/-and then to dip their fingers in the sodium carbonate solution kept in two separate glass tumblers. There was no change in the colour of the solution. Phenolphthalein powder was smeared on the currency notes and the witnesses were again asked to count them and they dipped their fingers in the solution in the glass tumblers. The solution turned pink in colour. The Phenolphthalein test was explained to them. The bribe amount was directed to be kept in his shirt pocket and to be given to the accused on his demand. P.W.2 was asked to keep the amount relating to arrears of rent in his pant pocket. After adequate instructions to the witnesses, a mahazar detailing the whole episode Ex. P, 10 was prepared, attested by P.W.2, P.W.3 and another witness. At about 4.20 p.m. on 19.9.1991, they had been to the place of the accused in the temple. When they reached the office of the accused at about 4.45 p.m. he was not there but however P.W.4 was present. At that time P.W.4 is said to have staled that the accused was not available and P.W.2 could hand over the money to him and go away. It was at this lime, the telephone rang and P.W.4 responded and from the talk P.W.2 learned that it was the accused who had instructed P.W.4 and when he was given the receiver of the telephone and informed the accused that he had come there with money, it was claimed that the accused had some other job and therefore, he had asked P.W.2 to come to Senkahuneer Amman temple. After having intimated the other witnesses, P.W.2 along with P.W.3 had been to the Senkahuneer Amman temple followed by the other witnesses including P.W.9. When P.W.2 reached the temple at about 5.45 p.m. on that day, the accused was in his room along with one Subramaniam, thakkar of the said temple. After having introduced P.W.3. to the accused as his uncle, P.W.2 claims that he paid a sum of Rs. 6680 and the accused after having counted and verified the same asked him as to where was the other money he had demanded and that immediately he gave the sum of Rs. 4000/- kept in his shirt pocket separately. Having received the same by the right hand, the accused/ Appellant counted and verified the amount and tied with a rubber band and kept them in his rexine bag M.O.2. Then P.W.2 has staled that he made a demand lo the accused to reduce that amount and for which the accused replied that his demand it-self was very low. Then the accused had instructed P.W.2 to inform the temple of his having paid the rent and to get the receipt and that accordingly, he gave instruction to P.W.4 over telephone for issue of receipt thereon. After this when P.W.2 came out and signalled as instructed, P.W.9 followed by his staff entered into the Office room of the accused and P.W.2 and P.W.3 identified the accused to him. As instructed by P.W.9, P.W.2 went outside and waited till 8 p.m. on that day. It was at this time, P.W.2 handed over Ex.P.6 series and then on the next day, he went to the Vigilance and Anti corruption Office, where he was examined and from the Court he got the amount of arrears of rent and paid the rental as per the receipt given by them. M.O.1 series are the seven five hundred rupee denomination currencies and five hundred rupee denomination currencies.

P.W.3 Radhakrishnan, who was working as Executive Officer in the Office of the Director of Tamil Nadu Agriculture, on 19.9.1991 at about 2 p.m. was asked by the superior to go to the office of P.W.9. When he went there at 2.45 P.M., he saw one Mr. Rajagopalan an Officer in the Adi Dravida Welfare Department, who had come there on similar request from P.W.9. P.W.9 introduced P.W.2 to P.W.3 and the other witness and briefed them of the written complaint by P.W.2 and asked them to read it. P.W.3 and the other witness enquired P.W.2 about the complaint and then followed the instructions of P.W.9. In other respects, P.W.3 corroborated the evidence given by P.W.2. This witness has also corroborated P.W.2 by saying that after the accused had kept the sum of Rs. 4000/- in his rexine bag, P.W.2 demanded the accused to reduce the same, for which, the accused refused by saying that his demand was very low. He would further claim that on the arrival of P.W.9 with his staff, the accused was questioned and he answered and that two glass tumblers with sodium carbonate mixture was brought and the accused was asked to dip his fingers and the solution turned pink in colour and that the said solutions were put in two bottles and labels were pasted indicating the solution relating to the right hand and the left hand, attested by P.W.3, another witness Rajagopalan with P.W.9, followed by the recovery of M.O.1 series, verification of the number of the currency notes with the numbers noted down by P.W.9 already along with a further sum of Rs. 136/- which was returned to the accused was arrested at about 7.45 p.m. He would claim further that a mahazar Ex. P. 11 was prepared by P.W. 9 for the whole episode happened there attested by witnesses and a copy of the same was served on the accused and then all of them had been to the house of the accused where a search was conducted and from his house, he would claim that a sum of Rs. 18,560/- plus some bank records were seized under the search list Ex.P. 12, which was also attested by him. M.O.2 is the rexine bag kept by the accused. M.O.3 and M.O.4 are the Sodium Carbonate solutions in which the respective hands of the accused were dipped.

P.W. by name Kandasamy is one of the tenants in the premises belonging to the temple in question and he has spoken to the factum of the proposed enhancement of rents by the temple authorities in question for all the tenements by 100 percent and then the decision taken by all the tenants lo pay the rents with only 25 per cent increase and that he in the capacity of the President of the association negotiated with the accused and an agreement was reached to the enhancement of the rent by 33 1/3 percent and also once in five years.

P.W.7 working as Grade I Assistant in the Tamil Nadu Forensic Science. Laboratory, has spoken to the factum of the receipt of M.O.3, M.O.4 bottles for chemical examination with a requisition Ex. P. 17 and that on analysis, the solution was found lo contain Sodium Carbonate and Phenolphthalein and his report is Ex. P. 18.

P.W.8. the Head Clerk of the Court has spoken to the factum of the receipt of M.O.1 to M.O.4 on 20.9.1991 and the requisition Ex. P. 19 from the Deputy Superintendent of Police to send M.O.s 3 and 4 for Chemical Analysis and his sending the same with the covering letter and the receipt of the Chemical Analysis Report Ex.P. 18.

P.W.9, the Deputy Superintendent of Police, Vigilance and Anticorruption, during the relevant time in question received the complaint Ex.P.9 from P.W.2 and registered the same in his Office Crime No. 9 of 1991 under Ex. P. 20 the copy of which has been given lo P.W.2. After preliminary enquiry, he sent intimation to the higher authorities regarding the registration of the case. He sent for two Officials, one from the Office of the Director of Agriculture and another from the Office of the Director of Adi Dravida Welfare department by means of requisition letters and accordingly both P.W.3 and another witness arrived and in their presence he had demonstrated the whole trap which he was going lo implement and has spoken to the factum of what he has done till he was incharge of the investigation in this case. In fact, this Office has stated everything substantiating and corroborating everything stated by P.W.2 and P.W.3. P.W. 10 who look up further investigation, having verified the investigation done by P.W.9, upon the orders passed by his superior Officers, he examined P. Ws. 2,3,6 and 9 as well as the accused on 20.9.1991, and after examining P.W.5 and P.W.4 and or the receipt of Chemical Examiner''s Report, obtained the sanction to prosecute the accused from the competent authorities under Ex. P. I on completion of investigation laid the final report against the accused before the Court on 27.4.1992 for the offences under Sections 7 and 13(2) read with 13(l)(d) of the Prevention of Corruption Act. Among the 10 witnesses examined by the prosecution, P. Ws. 4 and 6 were treated as hostile as they had not supported the prosecution case.

When the Appellant/ accused was examined u/s 313(l)(b) of the Code of Criminal Procedure with regard to the incriminating circumstances appearing against him in evidence, the accused has denied the allegation of having received a sum of Rs. 4000/- as bribe from P.W.2 on 19.9.1991 but however, has claimed that he had received the said amount of Rs. 4000/- from P.W.2 as rental advance from him and that out of enmity P.W.2 has falsely implicated him by giving a false complaint. However, he has not chosen to examine any witnesses on his behalf to substantiate his defence.

The trial Court after having re-corded the oral evidence of P. Ws. 1 to 10, documentary evidence marked Ex. P. 1 to Ex. P. 21 on behalf of the prosecution, 12 documents produced by the accused on his behalf with the four material objects relied on by the prosecution and having considered the pros and cons and the legal gamut of the whole case on hand has held that the prosecution has established the guilt of the accused and accordingly, found the accused the guilty for the charges framed and tried against him and consequently convicted and sentenced him as referred lo supra, by passing the impugned judgment. Aggrieved, the Appellant has come forward with this appeal canvassing the correctness and legality of the finding of the learned trial Judge.

I have heard Mr. v. Srinivasan, learned Counsel for the Appellant who dwell his attack more strenuously upon the impugned judgment by taking me through the oral evidence in its entirely adduced and relied on by the prosecution to identify the guilt of the accused While doing so, it is noticed that the learned Counsel took enormous pain in analyzing every aspect of the oral claim made by P. Ws.2 and 3 on the one hand with that of the oral claim of P. Ws. 4 and 6 on the other hand. To build up his contention, it was his Endeavour lo refer to the existing backdrop of the whole case in which the relationship or nexus existed between the accused and P.W.2. In short, to summaries briefly the learned Counsel had not rendered any of his argument or contention assailing the claim of P.W.3 as well as P.W.1 or P.W.5, P.W.9 and P.W. 10 nor the evidence of P. Ws.7 and 8. At the most, the main throng of attack made by the Bar for the Appellant is that the oral claim of P. Ws. 2 and 3 is in direct conflict with the performance done by P.W.4 and P.W.6 before the trial Court, which if considered in its legal perspective, no reliance can be safely placed to accept or hold that P.W.2 and P.W.3 are believable persons, rendered their performance truck with an unblemished character and in short to say, the evidence of P.W.2 is wholly unbelievable and cannot at all be accepted for not only want of adequate corroboration and substantiation but also his claim, particularly, betrays the whole of the prosecution and that therefore prosecution must fail, which the learned trial Judge has miserably failed to take note of. The prejudice thus caused to the accused is on account of the whole misconception of evidence of P.W.2 in the context of the non-support of the prosecution case by P.W.4 and P.W.6. The doubt, however, graver and very serious in nature in the evidence of P.W.2 on the one hand against the evidence of P.W.4 and P.W.5, goes to the very root of the prosecution case. Therefore, in the above circumstance, which is the only legal factor, if considered properly, it is obvious, learned Counsel contended, that the rest of the prosecution case seems lo be highly superfluous and upon the basis of which, rendering a conviction is totally unsustainable either on facts and law.

Per contra, Mr. A.N. Raja, learned Government Advocate, placed most of his reliance upon the evidence of P.W.s 2 and 3 as fully corroborated by P.W.9 and the other circumstances brought out before the Court by the prosecution in full support. The various other findings given by the learned trial Judge was made reliance of by the learned Government Advocate with a view to justify the impugned judgment of conviction and sentence rendered against the Appellant. According to him, the guilt of the accused has been fully established by the prosecution by the 10 witnesses and the documents relied on by them. Therefore, he justifies the impugned judgment of conviction and sentence as fully supported by law.

In the context of the above rival position, the only question that arises for consideration in this appeal is whether the impugned judgment of conviction rendered by die trial Court in this case is vitiated with any incorrect or erroneous approach inherent with any illegality or impropriety and whether the prosecution has established the guilt of the Appellant/accused beyond the realm of doubt.

The very fact that P.W.2 by name Sear is the tenant in a portion of the premises bearing Door No. 18, which belongs to Arujmighu Venkatesa Perumal Thirukkoil situated in Sowcarpet, Madras, along with his brother by name Arunachalam and his father in portions till 1990 and that with regard to the one portion standing in the name of his father he was directly inducted in the temple records as a tenant and another was entered in the name of his brother and the third portion of the said premises was allotted lo continue in the name of his deceased father, which was sub-let to two tenants by P.W.2 and that under Ex.P.2, Ex. P. 3 the accused had given notice of demand to all the tenants including P.W.2, his father and his brother, to pay not only the arrears but also to pay the enhanced rent by 100 per cent and for which all the tenants had consulted among themselves and decided to pay the enhanced rent with 10 per cent increase as evident from Ex.P.4 and Ex.P.5 and that consequently. P.W.5 being the President of the temple tenants association took effort in conciliating the matter with the accused and Ors. and was able to arrive at a consensus for the payment of the enhanced rent with 33 1/3 per cent increase and that consequently, P.W.2 was sent for by the accused and the actual quantum of arrears to be paid by him was quantified at the enhanced rate, for which. P W? has agreed by giving consent letters to Ex.P.7 and Ex.P.8. followed by the quantification figure given by P.W.4 at the behest of the accused in two small chits under Ex.P.6 series and that accordingly, a total amount of Rs. 6,680/- was quantified to be paid by P.W.2 in all towards the arrears of rent due then are all the admitted facts remaining undisputed and there was no controversy whatsoever over the same among the parties herein.

Similarly, the payment of the arrears of rent of Rs. 6,680/- by P.W.2 lo the accused on the evening of 19.9.1991 at his Office situated in Senkazhuneer Vinayakar-Koloor Amman temple in the presence of P.W.3 the trap witness and the thackkar of the said temple P.W.6 by name Subramaniam and that a further sum of Rs. 4,000/- under M.O.1 series was also paid by P.W.2 and that the accused had received the said amounts and kept the same in his zip filled rexine bag MO.2 and that consequently P.W.9 and his staff entered into the said room and questioned the accused and recovered the said amounts, conducted the phenolphthalein test with all the implements for the whole trap set up by him with the mahazars prepared and attested by P.W.3 and other witnesses with the samples therein, are not much in dispute except the fact and the specific defence that the Appellant/accused had not received the said amount as bribe. The accused also seems to have feigned any knowledge about the recovery of the material objects and sending the same for Chemical Examination and the report of the Chemical Examiner received in the regard, which proved positive, according to the prosecution case. So also, he has feigned any knowledge about Ex.P.I, the sanction accorded lo the prosecution to launch the prosecution against the accused as per the oral evidence of P.W.I.

The trial Court after having canalised and examined every part of the legal evidence adduced and relied on by the prosecution has believed and accepted the evidence of P. Ws.2,3 and 9 eventhough the independent witnesses P.W.4 and P.W.6 have not supported the prosecution and consequently, found the accused guilty for the charges framed and tried against him. The evidence of P.W.5, the President of the tenants association seems to have been not considered by the trial Court in the proper perspective and context. It is under these circumstances, the Bar for the Appellant canvassed much about the credibility and acceptability of the evidence of P.W.2 and P.W.3 as wholly unbelievable and unacceptable, in the context of almost all the admitted facts above referred, namely, that the accused/appellant had admitted the possession of M.O.1 series on the relevant day and time and from whose custody it was recovered by the Police, before proceeding further and that as such, it was only an advance rental he had received from P.W.2 and not as a bribe money and that at the behest of P.W.2. the whole case for the relevant charges against him has been foisted and schemed out by the Police. In support of his theory, he has produced 12 documents on his behalf, which were marked as Ex.D.1 to Ex.D.12, amongst which, Ex.D.6 to Ex.D.12 are the receipts for having received the advance from various tenants in the occupation of the premises belonging to the said temple in question during the year 1990-91. There was no contra evidence made available by the prosecution nor any acceptable observation or finding made by the learned trial Judge to suspect the genuineness and veracity of these defence documents. In fuel, it is noted that these documents Ex.D 6 to Ex.D.12 were marked through P.W.4, the staff and Clerk of the Aruhnighu Venkatesa Perumal Thirukkoil, who is the proper person to speak about the relevancy, genuineness and correctness of the same. In a more similar way, Ex.D.1 to Ex.D.5 would reveal clinchingly that the tenants in the actual occupation of the premises in the building of the temple were in the habit of paying the rentals belatedly and that it was only then the temple authorities enhanced the rent by issuing notices and letters and thus they used to receive the rental arrears from the tenants also.

If the evidence of the prosecution, particularly through P.W.2 that there was a demand for paying the enhanced rent with 100 per cent increase made by the temple authorities through the accused, for which the tenants had consented to pay the rent with 10 per cent increase and that if the prosecution case through P.W.5 had peaceful solution of paying the increased rent with 33 1/3 per cent increase and that if P.W.2 had agreed to pay the rental inclusive of all arrears of rent by giving the letter in writing under Ex.P.7 and Ex.P.8 to be paid on or before 19.9.1991, that is, after the lapse of 12 days, then the doubt arises with regard to the lodging of the complaint by P.W.2 on 19.9.1991 about the illegal demand made by the accused. This doubt about the probability of the claim of P.W.2 arises for the reason that the accused, according lo him, had demanded a bribe of Rs. 6,000/-that apart from the arrears of rental of Rs. 6,680/- even on 6.9.1991 itself and that the response for such a demand by P.W.2 was one of refusal. Be that as it may, for a period of 12 days, he evinced no interest in taking action against the accused. On the other hand, he has claimed that he met the accused on 18.9.1999 and expressed his inability to pay Rs. 6.000/- by way of bribe. Therefore, it is noticed that for the second time only where he met the accused he has expressed his inability to pay the same and that where upon the quantum of bribe was reduced into Rs. 4,000/-by the accused himself, for which, P.W 2 seems to have agreed lo comply with the said demand on or before the next day as demanded There is absolutely no explanation put forth or placed by the prosecution before the Court as to what has transpired for a period of 12 days between the accused and P.W.2. If P.W.2 had been insisted to pay Rs. 6000/- by way of bribe on 6.9.1991 itself by the accused and P.W.2 had expressed his inability to pay the said amount on that day itself then. I find no reason for P.W.2 lo wait for more than 12 days without taking any action or informing anybody until he met the accused again on 18.9.1991 to repeat his same intention. This lacuna and vacuum found in the prosecution case remains totally unexplained and the prosecution has failed to adduce acceptable legal evidence to explain the lacuna and serious gap made available in this case.

It was the specific and categoric claim of P.W.s 2 and 3 that two sets of amounts, one by way of rental arrears to the extent of Rs. 6680/- kept in a separate bundle and another, the bribe amount of Rs. 4000/-., M.O.1 series kept in the shirt pocket, were paid to the accused in the presence of P.W.3 and P.W.6, who is none other than the fit person for the temple of Senkahuncer Vinayakar-Koloor Amman, a third party to the alleged entire transaction. It was also the specific case of the prosecution that the arrears of rental ail amounting to Rs. 6680/- kept in a separate bundle and paid by P.W.2 to the accused was received by him, counted, verified and kept in his rexine bag M.O.2, and that at the same stretch, on demand, the bribe money, M.O.1 series had been paid by P.W.2, which was also counted by the accused, verified and kept in his rexine bag by trying separately with rubber band. If that being so, to offer the fool-proof before the Court of Law, it must have been the endeavour of P.W.9, the investigating Officer, in implementing the trap while nabbing the culprit who received the bribe, to set up the phenapthalein test for the two sets of money said lo haw-been received by the accused and the conduct of phenalpthalein test over M.O.1 series alone is highly doubtful and cannot at all be accepted. It may be dial the receipt of the rental arrears to the extent of Rs. 6680/- had been admitted by the accused, so also, he admits that the alleged bribe money was in his custody and from whom it was recovered by P.W.9. The non-performing of phenolphthalein test over the other part of the money creates every grave doubt, which the Investigating Officer ought to have performed. There is absolutely no evidence or material to show that he has taken any effort to conduct phenolphthalein test over the other part of the money received by the accused. This nonperformance on that part of the investigating agency, in my considered view, creates a serious doubt in the backdrop of the admitted case among the parties herein.

One more significant and vital aspect which has been omitted lo be taken note of by the learned trial Judge is the normal conduct of an ordinary prudent man. P.W.2 is supposed to be a tenant under the temple authority always at the loggerhead of paying lite rent lo not only the portion in his occupation hut also to the portions in the occupation of his brother and the deceased father and that too. at the enhanced rate of 33 1/3 per cent increase as spoken not only by himself alone but also claimed by P.W.5, though the alleged demand of bribe was made to him before 12 days, it is noticed, that he not only kept quiet for such a long period but also brought the amount to P.W.9 along with the prepared compliant Ex.P.9 with him to be lodged, but finding that the accused was not available in the place where he was expected to be. went to a different place at his request, seems to have cleared not only the arrears of rent lo the extent of Rs. 6680/- but also the bribe amount of Rs. 4000/- as demanded by the accused, significantly in the presence of a third person by name Subramaniam, examined as P.W.6, who is none other than the fit person of the temple and totally unconnected with the bribe transactions. The concept of demanding the bribe to reduce the quantum of enhanced rent from 33 1/3 per cent to 25 per cent by the accused to P.W.2 and the illegal consideration for doing so, fixed originally at Rs 6000/- and subsequently after 12 days reduced to Rs. 4000/- and P.W.2 accepted to pay the same was exclusively a transaction expected to have taken place between P.W.2 the decoy witness and the accused and while such being so no other person is expected to have the knowledge of the same. If this is so, while prosecution has not claimed anything more about the said transaction for P.W.4 or P.W.6, it is highly strange and astonishing for P.W.2 to claim that he has paid the bribe amount of M.O.1 series to the accused in front of a third person, who is totally a stranger namely, P.W.6,the fit person of the temple, who was all along sitting along with the accused. The alleged payment of Rs. 4,000/- as bribe as claimed by P.W.2 in the presence of P.W.6, a third person totally unconnected with the transaction goes to show that it was not at all a bribe money paid secretly to the accused. This aspect of the case on hand has been totally overlooked and missed for any consideration by the learned trial Judge while delivering the impugned judgment.

Another important but most disturbing feature that has emerged out from the adduced evidence of the instant case is that immediately when P.W.2 has paid the bribe money M.O.1 series to the accused and he received the same, counted, verified and kept in his rexine bag M.O.2, it was the claim of P.W.2 that he asked the accused to reduce the quantum of bribe money and for which, the accused had replied that the demand already made was very low. This demand and refusal seems to have been projected in the presence of P.W.6. If the demand of the bribe at Rs. 6,000/- was made on 6.9.1991 itself by the accused and P.W.2 had expressed his inability to pay the same on that day itself and that subsequently, the said amount has been reduced into Rs. 4,000/- and paid on 19.9.1991 to the accused in the presence of a third person as a bribe money fixed and quantified already, I am at every difficulty to accept the prosecution case. Where was the need or occasion for P.W.2 to enter into a barter to reduce the quantum or bribe money in the presence of a third person? This is totally against the normal conduct of a prudent man who is genuinely transacting with another. The reasoning given by the learned trial Judge that because M.O.1 series was treated as the bribe money, P.W.2 has made a repeated demand to reduce the said quantum after it was paid. If the giver of a bribe and receiver had entered into an understanding to pay the bribe money secretly, deemed to be exclusively within their knowledge, by applying the same logic as propagated by the learned trial Judge, it is also possible to presume that after having quantified the bribe money even on 6.9.1991 and followed on 19.9.1991. there exists no need or occasion to enter into a barter for reducing the bribe money, namely, M.O.1 series in this case fins aspect of the admitted prosecution case again demonstrates a serious doubt about the attitude and conduct of P.W.2. P.W.2 is a decoy witness set up by the investigating agency to nab the accused after having completed the trap for the offences under the Prevention of Corruption Act. As I have already observed, the reasonings given above and the circumstances referred to therein are inherent in the oral claim of P.W.2, which has been totally and clearly overlooked by the learned trial Judge and by doing so, it seems the learned trial Judge has proceeded on the basis of superfluous outlook of his oral claim. For all the said reasonings, I am of the considered view that the claim of P.W.2 that he paid M.O.1 series to the accused as bribe cannot at all be believed and thus the prosecution has miserably failed to prove that what was paid by P.W.2 under M.O.1 series is the bribe money. I lien, the question remains, what does it represent? The theory propounded by the accused with regard to the same is that it is only a rental advance received by him from P.W 2 in the presence of P.W.6. In support of this contention, he has relied upon the entire substratum of the prosecution case till the payment of the arrears of rent quantified and relied on. The 12 documents produced by the accused through P.W.4 render all support and substantiation to his theory. It was the prosecution case that the moment the amount was paid, the temple was informed over telephone by the accused to give the receipt for the said amount. Immediately pursuant lo the trap, P.W.9 along with his staff went and seized the same by conduct of phenopthatlein lest and arrested the accused It is under these circumstances, if the amount M.O.1 series had been received by the accused as advance rentals, then, he is expected to give the receipts for the same only subsequently after arriving to the Office and it is highly impossible to predict that it was a bribe money for all the reasonings given above. It is not as if the temple authorities or the accused had not received any amount by way of advance rentals as observed by the learned trial Judge. Ex.D.6 to Ex.D.I2 go to show that the habit of receiving the advance rentals from the tenants was in vogue and that therefore, under the established circumstances, above referred, I am inclined to hold that there was overwhelming evidence made-available by and on behalf of the accused to show that what was received by him under M.O.1 series was not the bribe money at all but only rental advance for which proper receipts have to be issued by the temple authorities.

Regarding the lodging of complaint Ex. P. 9, follow up actions during the part of investigation made by P.W.9, setting the trap, conducting the phenolphthalein test, various recoveries under the cover of mahazars attested by witnesses, examination of witnesses and completing the investigation inclusive of subjecting the material objects for Chemical Examination, there is no need or occasion for mc to observe anything for the very reasoning that it has no impact in view of my specific observations and findings with regard to the credibility of the evidence of P.W.2, who is the star witness. Once the evidence of P.W.2 is suspected and rejected, then the whole case of the prosecution must go as it goes to the very root of the prosecution case. May be it is stated that P.W.3 has rendered all corroboration and substantiation to the claim of P.W.2. Be that as it may, it is noted that the evidence of P.W.3 is nothing but a corroboration to the claim of P.W.2 to the limited extent of giving the money M.O.1 series to the investigating officer P.W.9 at his office and during the lime of completing the trap in the place of occurrence. But the very fact, whether M.O.1 Series is the bribe money or the advance rental money is since exclusively within the knowledge of P.W.2 and the accused, the evidence of substantiation or corroboration rendered by P.W.3 has no significance in this case.

P.W.1 is the Official witness who speaks about Ex.P.1, the sanction accorded to prosecute the accused for the offences by the authorities concerned. Since it was not disputed or agitated on the question of sanction, I do not propose lo say anything in this regard.

P.W.2 is the decoy witness and has rendered a star performance in the whole of the prosecution case and P.W.3 is the trap witness With regard to the scope and legal purview and ingredients lo be followed by the Courts of Law with regard to the performance of a decoy or a trap witness, the Supreme Court had the occasion lo set up the ratio in M.O. Shansudhin v. State of Kerala (AIR 1995 SCW 2717). in the following words:

"The word "accomplice" is not defined in the Evidence Act. However, it is accepted that the word is used in its ordinary sense which means and signifies a guilty partner or associate in a crime. Illustration (b) lo Section 114, in a way caulions the Court to bear in mind the presumption that an accomplice is not or thy of credit unless he is corroborated in material particulars. Section 133, of the Act. however, declares that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice. The relation between Section 113, which is a rule of law and Illustration (b) to Section 114, which is a rule of prudence has been the subject of comment in a large number of decisions. However, it has emerged that a conviction based on the uncorroborated testimony of an accomplice is not illegal though an accomplice is not illegal to through an accomplice may be unworthy of credit for several reasons. Reading Section 133, and Illustration (b) to Section 114 of the Evidence Act together the Courts have held that while it is not illegal to act upon the uncorroborated testimony of the accomplice the rule of prudence so universal followed leas to amount to rule of law it is unsafe to act on the evidence of an accomplice unless it is corroborated in material aspects so as to implicate the accused. The reasons for requiring corroboration of the testimony of an accomplice are that an accomplice is likely to swear falsely in order lo shift the guilt from himself and dial he is an immoral person being a participator in the crime who may not have any regard to any sanction of the oath and in the case of an approver, on his own admission, he is a criminal who gives evidence under a promise of pardon and supports the prosecution with the hope of gelling his own freedom.

Now confining to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case-should not lie subjected to the same rigorous tests which are generally applied to a case of an approver Though bribe givers "are generally treated to be in the nature of accomplices but among them there are various types and gradation. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be a person who has to give money lo the accused which in fact is the brilie money which is demanded and without such a giving the trap cannot succeed. When there is such a demand by the public servant from a person who is unwilling and if to do public good approaches the authorities and lodges complaint then in order that the trap succeeds he has to give the money. There could be another type of bribe given who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Mere he is a particles criminals in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person oilers a brilie to " achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of "accomplices" by reason of their being bribe givers, in the first instance the Court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may having regard to the facts anil circumstances. It is well settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The Court should weigh the evidence and then see whether corroboration is necessary. Therefore as a rule of law It cannot lie laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. However, it is cautioned that the evidence of a bribe giver has to be scrutinised very carefully and it is for the Court to consider and appreciate the evidence in a proper manner and decide the whether a conviction can be based upon or not in those given circumstances".

Pursuant to the legal ratio held by the Apex Court in the above case law, it has now become clear that the standard or the nature of a trap witness, who becomes a party to a transaction, becomes the victim of threat or correction and assumes the character of an accomplice by reason of his being the bribe giver. It is for the duty of the Court to consider the degree and complicity and then look for the corroboration if necessary as a rule of prudence. The extent and nature of corroboration may vary according to the facts of each case and that corroboration can even by proving the circumstances and that as such no general rule can be laid-down with respect lo the quantum of evidence required corroborating the testimony of trap wiliness. which again would depend upon its own facts and circumstances. All the more, it could be said that the Court should weigh the evidence and then see the standard of corroboration which is required As a mailer of rule of law. it cannot he laid down that the evidence of every complainant in a bribery case should to corroborated in all material particulars and otherwise cannot be acted upon Whether corroboration is necessary and if so. to what extent, and what should be its nature, all depends upon the facts and circumstances of each case. There is a caution declared by the Apex Court that the evidence of a bribe giver has to be scrutinised very carefully and that it is the duty of the Court to consider and appreciate the evidence in a proper manner as rendered above. In the light of the above legal ratio if the evidence of P.W.2 is weighed and scrutinised for the three reasonings and circumstances pointed out by mc earlier, the substantiation or corroboration required in this case for the evidence of P.W.2 is more and enormous for the very reasonings that the claim of P.W.2 bristles with every surmounting suspicious circumstances. The preponderance of improbabilities is all the more inherent in his claim and the probabilities and naturalness are totally lacking in his claim. His testimony before the trial Court that he has paid M.O.1 series as the bribe money appears to me very dubious in nature and character and superfluous, remains solitary and without an iota of support, corroboration or substantiation. The delay is selling the law in motion by lodging Ex.P.9 after a lapse of 12 days from 6.9.1991 would belie the prosecution case in to to and this aspect is only a death knell to the whole claim of P.W.2. Therefore, on this count also. I have no hesitation to suspect and disbelieve the claim of P.W.2 in its entirety. All the more, he does not seem to be a mere stranger. He was all along a tenant in the occupation of a portion of the rental premises paying rent to the accused and committing default, subletting the two portions of his father and thereby collecting the rent from them also without any permission. He is doing business in the portion in his occupation. It is noticed that he has sent a reply notice already. However, the gravity of disputes is seem to have been narrowed down by the intervention of P.W.5. Even so, it is also noticed, for the part of his arrears, there is no dispute and with regard to M.O.1 series alone, a complaint under Ex.P.9 was thought over to be lodged after a lapse of 12 days, which, in my well considered view, is clearly a scheme emerged out in the mind of P.W.2.

It is noticed that the learned trial Judge has the occasion to consider that part of the evidence given by P.W.2 and P.W.3 that immediately after the payment of M.O.1 series to the accused, a demand was made to reduce the same, which was not accepted by the accused and that would reveal the payment of M.O.1 series as bribe money and that because it was bribe money, P.W.2 thought fit of making the demand to reduce the same. This reasoning of the learned trial Judge can be accepted under no logic nor under the perception of any law for the very same logic if applied, why cannot it be otherwise? If it was a bribe money quantified already, where was the occasion or need for the bribe giver to make a demand for reduction of a bribe money and that too, in front of a stranger, a third party. Having considered the same, there are two views possible, as pointed out above, one is conflicting with the other, which resulted in creating a grave doubt about the veracity of the claim of P.W.2 and the benefit of such serious doubt should be ascribed to the benefit of the accused as per the settled law. With regard to the said aspect, the reliance and observation made by the learned trial Judge cannot he sustained for the mere reasoning as contended by the learned Counsel for the Appellant dial that part of the evidence alleged to have been spoken by P.W.2 and P.W.3 through remains static and important no question were put to die accused on that score as provided u/s 313(l)(b) of the Code of Criminal Procedure. For the very reasoning that that part of the evidence clearly amounts to an incriminating portion of evidence made available by the prosecution, I have perused the questioning and the explanation given by the accused, held by the learned trial Judge u/s 313 Code of Criminal Procedure It is apparent that no such questions were put lo the accused in that regard and no explanations were obtained from the accused despite the fact that the accused had specifically pleaded that he received M.O.1 series only as an advance rental and not as a bribe money. In that respect I am able to see and observe that no opportunity was afforded to the Appellant/accused to explain those circumstance, and by which, the accused is put to serious prejudice and as such, for the said reasoning also, the conviction rendered against him could not be sustained.

In so far as the defence theory projected by incused is concerned, pursuant to subclause and (4) of Section 19 of the amended Prevention of Corruption Act and Section 20 of the Act. once the accused admits the possession of the bribe money, the presumption to be drawn is that the tainted money is the bribe money, having regard to the facts of the instant case and the legal evidence made available on behalf of the respective parties, I feel totally satisfied in accepting the case of the defence that from the tenor of the evidence of the prosecution witnesses and the defence documents, it has been clearly established that what was received by the accused on the evening of 19.9.1991 under M.O.1 series was not the bribe money but only as an advance rental and that the prosecution has miserably failed to establish the guilt of the accused for the offence of bribery as charged and tried. There is a big and volume of doubt however with every seriousness and the benefit of which should be ascribed in favour of the Appellant/accused by selling aside the judgment of conviction and sentence rendered against him by the trial Judge, it is thus having considered every gamut of the case, adduced evidence and the projected contentions on behalf of both parties, I am fully constrained to hold that the various other observations and findings given by the learned trial Judge are not based on the correct perception of law and the whole observation seems to be on account of the total misconception of the adduced evidence and that therefore, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubts and that as a result, the accused is entitled to be acquitted of all the charges.

In the result, for all the foregoing reasonings and findings, the appeal succeeds and stands allowed. Consequently, the judgment of conviction and sentence rendered by the learned Second Additional Special Judge. Madras Division, in C.C. No. 42 of 1992 dated 7.10.1993 is set aside and the Appellant/accused is acquitted. Bail bond, if any, executed by him shall stand cancelled. Fine amount, if any, paid by him is ordered to be refunded immediately. M.O.1 series is directed to be paid to Arulmighu Venkatesa Perumal Thirukkoil, towards the rentals payable by P.W.2.