S. Krishnamurthy vs State, Inspector of Police, Vigilance and Corruption, City II, Madras - 6

N. Arumugham, J.—The accused who was tried before the learned VI Additional Special Judge, Madras Division, in C.C. No. 21 of 1989

and convicted for the offences under Sections 7 and 13(1)(d)(ii) of the Prevention of Corruption act, 1988 and sentenced to undergo rigorous

imprisonment for a period of one year with a fine of Rs. 500/- in default to suffer rigorous imprisonment for a further period of two months by its

judgment dated 27.11.1990, has preferred this appeal challenging and assailing its correctness and validity.

The Appellant/accused was employed as a Special Temporary Assistant in Mylapore-Triplicane Taluk Office, Madras, during the month of

September 1988. In connection with the transfer of name in the patta register for a house bearing door number 5 situated in Ad-hikesavalu Street,

Chindadripet, Madras, to one Sushen P.W. 1, an application was stated to have been pending at the hands of the accused/Appellant in his office.

P.W. 1 with his friend P.W. 2 by name Prem Anand had been to the Taluk Office on 16.9.1988 and approached the accused and for which, it

was stated that the accused/Appellant had demanded a sum of Rs. 300/- by way of bribe from P.W. 1 and also asked P.W. 1 to come with

money on the next Monday. Because of the demand of bribe by the accused, P. Ws. 1 and 2 decided to report the matter to the Vigilance and

Anti-corruption Police. Accordingly, at about 10 a.m. on 19.9.1988 both of them had been to the vigilance and Anti Corruption Office and lodged

a complaint, which was registered by the Inspector of Police, which has been marked as Ex. P.4, and Ex. P.5 is the printed F.I.R. printed by him

and sent to the Court. Consequently, a trap was set up at the behest of P.W. 17, the Inspector. At about 3.15 p.m. on 19.9.1988, P. Ws. 1 and 2

had been to the place of accused in his office and on verification by the accused/Appellant as to whether they had brought the money, P.W. 1 gave

Rs. 300/- from his custody to the accused. On the receipt of the said money, accused had kept the same in his left side pant pocket. This was

followed by P.W. 1 coming out and signalling to the Vigilance Police Party waiting outside and the Inspector along with the Police party and trap

witnesses had been to the accused, recovered the said money and the accused/Appellant confessed to the Inspector that he had received the bribe

from P.W. 1. Therefore, the accused was arrested. P.W. 1 has claimed that he was employed in the Chief International Air Port at Muscat and his

address in India was Door No. 17, Telugu Street, Vi-rajpet, Karnataka and whenever he happened to come to Madras, he used to stay in the

house of his relative Prem Anand P.W 2 and that on 31.7.1986 he purchased a house bearing door number 5 situated in Adhikesavalu Street,

Chindadripet, Madras and that on 2.8.1988 he, along with P.W. 2 had been to the Mylapore Triplicane Taluk Office, in connection with the

transfer of the patta of the house purchased by him and gave an application for the said purpose appending a copy of the sale deed and old patta

and Ex.P.l is the said application give by him. He would claim further that as he was instructed to come after two days by the clerk, he, along with

P.W. 2 went to the Taluk Office on 5.8.1988 and on his instruction, he remitted a sum of Rs. 5/- in the State Bank through a challan given by him

Ex. P.2 and handed over the receipt and that he gave another petition Ex. P.3. Then, he had been to Coimbatore and returned on 16.9.1988 and

in the evening when he met the accused/Appellant in his office along with P.W. 2, who was the Section Clerk. It was stated that the accused had

replied that the Tahsildar had not yet signed and to get his signature some money has to be spent and by so saying the accused had demanded a

sum of Rs. 300/-. The accused is also stated to have told P.W. 1 and P.W. 2 that if the said amount was paid, transfer order would be had within

two days, if not, it would take a year. It was the case of the prosecution further that for the said demand, P.W. 1 was not inclined to, but however,

he was replied that without the money nothing can be done. Therefore, both P.W. 1 and P.W. 2 had been to the office of the Vigilance and

Anticorruption at about 10 a.m. on 19.9.1988 and lodged complaint Ex. P.4 to the Deputy Superintendent which was handed over to P.W. 17 for

registration and further action. As instructed by P.W. 17, P.W. 1 and P.W. 2 waited in his office and P.W. 3 Perumal and one Kumarasami,

employees of the T.W.A.D. Board were brought and then M.O.I series, three hundred rupees denomination currencies brought by P.W. 1, was

given to P.W. 17 and in which phenolphthalein powder was smeared the handed over to P.W. 1 followed by the preparation of the Sodium

Carbonate solution in a glass of water and when the fingers of P.W. 1 was dipped, the colour of the solution turned into pink as witnessed by P.W.

2 and the two witnesses. For all the exercise done in the office of the Vigilance and Anti Corruption Ex. P.6 mahazar was prepared. The said

mahazar was attested by P.W. 1 as well as the said witnesses. As was instructed, at about 3 p.m. both the witnesses P. Ws. 1 and 2 went to the

accused while the witness P.W. 3 Perumal was standing two feet away from the accused. He was asked as to what happened to his transfer

application, for which, the accused was stated to have replied as to whether they had brought the money and immediately P.W. 1 took M.O. 1

series, three hundred rupees denomination notes and gave it to the accused and the accused had received the same and kept it in his left side pant

pocket M.O. 5 and this was witnessed by P.W. 3 and P.W. 2. Thereafter the accused had been to P.W. 5 Draftsman. This was followed by P.W.

1 coming outside and lit a cigarette as a signal to the waiting Police and consequently, P.W. 17 came to the accused, introduced himself and as

pointed out by P.W. 1, he recovered the money in the presence of witnesses. To this extent, P.W. 1 and P.W. 2 were consistent in their testimony

before the trial Court.

Then in the presence of witnesses present thee and the Tahsildar and the Deputy Tahsildar, the phenolphthalein test was conducted and the

fingers of the accused were dipped and change of colour of the sodium carbonate solution was noticed and the bottles were M.O. 2 and M.O. 3.

The test was also conducted on the pant pocket M.O. 5 and the solution turned pink and the bottle is M.O. 4. On the information given by the

accused, P.W. 17 had seized from P.W. 5 the file containing Ex. P.2, Ex. P.3 and Ex. P.13 under the cover of mahazar Ex. P.7 attested by the

witnesses present. At about 5 p.m. the accused was arrested. P.W. 3 Perumal a staff of the T.W.A.D. Board has corroborated the evidence of P.

Ws. 1 and 2. To the same extent P.W. 17, Inspector of Police has substantiated the prosecution case. He would claim further that after the trap

was over and the accused was arrested, he searched the house of the accused at Mambalam and prepared a search list Ex. P.8 attested by the

witnesses. He recorded the statement from the accused given voluntarily. Then he sent the case properties to the Court with a request to send the

same for Chemical Analysis under Ex. P. 18 and examined other witnesses subsequently.

Tmt. Banumathi examined as P.W. 5 would claim that on the date of occurrence, the accused was working as patta clerk and that on

16.9.1988 the file relating to P.W. 1 came to her with the note Ex. P. 12 for drafting a sketch on the reverse of the same and on 19.9.1988 she

got the map for the purpose of drawing the sketch and at about 3.30 p.m. on that day the accused came to her along with three others and asked

whether the draft was ready for which she replied that the job was not yet over and she would give in a short-while after finishing the same and

upon saying so, they had left and thereafter came and seized Ex. P. 12. P.W. 4 the Revenue Inspector the Vigilance Inspector/claims that the

transfer application of P.W. 1 was received on 29.8.1988 and entered in Ex. P.9, her personal register and relevant entry is Ex. P.10 and

submitted report Ex. P.11, that transfer could be effected. He would add further that there was an order received to implement the Teacher''s day

Donation Collection in her office and that for her part a target of Rs. 2,500/- was fixed and for which collection they would give the necessary

receipt and that said collection was over on 5.9.1988.

P.W. 6 has stated that he was the Assistant working in the Mylapore Triplicane Taluk Office and that on 16.9.1988 itself, he prepared Ex. P.12

and placed for the perusal of the Tahsildar and that thereafter forwarded the same to the Survey Section on that day itself. One Govindaraj

examined as P.W. 7 has spoken to the factum of the perusal of Ex. P.1 on 5.8.1988 and forwarding of the same to P.W. 4 to submit a report

thereon. P.W. 8, Padmanabhan has claimed that he had completed Ex. P.3 and submitted to the Tahsildar. P.W. 10 Velayudha Perumal working

as an Assistant in the Madras Collectorate, has claimed that on the report of the Vigilance Department, he placed everything before the District

Collector and accordingly, it was verified and Ex. P.13 sanction to prosecute the accused for the offences above referred, was accorded.

P.W. 11 the Personal Assistant to the Madras District Education Officer has stated in his evidence that during the month of September every

year on the 4th, 5th and 6th day Teachers'' day was being observed and with the permission of the District Collector donations were being

collected, and for which, tickets were printed and that on 2.9.1988 a sum of Rs. 16,500/- and a sum of Rs. 3,500/- on 5.9.1988 were remitted by

the Mylapore Triplicane Taluk Office under Ex. P.14 and Ex. P.15, P.W. 12 Thirunavukkarasu the Junior Assistant looking after the collection of

donations for Teacher''s Day and Flag Day would claim that the Tahsildar gave tickets of Rs. 5/- Rs. 25 Rs. 50/- denominations to the extent of

Rs. three lakhs for the purpose of collection towards Teachers'' Day which he distributed among four Revenue Inspector and four Surveyors of his

Office and that accordingly, amounts were collected and handed over to the Tahsildar under Ex. P. 16 and that amount has been sent to the

District Educational Officer under Ex. P.14 and Ex. P.15 and Ex. P.17 is the file relating to the same.

7.M. Os. 1 to 5 sent by P.W. 27 under Ex. P. 18 has been sent to Chemical Examination according to the evidence of P.W. 13 Mr. Malaiappan

Head Clerk, attached to the Judicial Magistrate''s Court. P.W. 14, the Tahsildar, Triplicane has stated that he had recommended the transfer of the

patta under Ex. P.1 and the order was passed by him on 16.9.1988 itself. P.W. 15, another Tahsildar would have it that at about 4 p.m. on

19.9.1988, the accused/Appellant was brought before him by the vigilance Police and has substantiated the case of P.Ws. 1 and 2 about the trap,

phenolphthalein test conducted, the change of colour and so on and he has attested Ex. P.7 mahazar prepared thereon. He would further claim that

the collections made with regard to Teachers'' Day at Rs. 16,500/- on 2.9.1988 and Rs. 3,500/- on 5.9.1988 were sent to the District Educational

Officer.

When the accused was examined u/s 313(1)(b) of the Code of Criminal Procedure on the basis of the incriminating circumstances appearing

against him in evidence, he had denied his complicity in the crime, but however, has admitted that M.O. 1 series was given to him by P.W. 1 but

not as a bribe, but towards the Collection of the donation for Flag Day Celebration and by so saying he has stated that the case been foisted

against him.

After recording the oral testimony from P. Ws. 1 to 17 and the documentary evidence Ex. P.1 to Ex. P.20, marking material objects M. Os. 1

to 5 and considering the contentions raised on behalf of the respective parties herein, the learned Special Judge has held that the prosecution has

succeeded in establishing the guilt of the accused beyond the realm of doubt for the offences charged and tried and accordingly, convicted and

sentenced him as above referred. Aggrieved at this accused/Appellant has come forward with this appeal.

I have heard the Bar against and for the impugned judgment. Mr. Rajkumar Roberts, learned Counsel appearing for the Appellant submitted

the following contentions while assailing the impugned judgment.

i) The evidence of P. Ws. 1 and 2 coupled with P.W. 3 and 4 is highly suspicious and unbelievable and as such, accepting the same by the learned

trial Judge is erroneous and not correct in law;

ii) The accounting of the trap witnesses were only tutored one and they were not present when the trap was set up and completed actually and a

close scrutiny of their part of evidence would reveal the said fact and that therefore, the whole episode of setting the trap, roping in of the accused

is false and the learned trial Judge has erred in believing and accepting the same;

iii) The motive and circumstances attributed by the prosecution to the accused in demanding the money is not at all probable for the reason that the

accused alone has not been vested with the power of effecting the transfer of patta to the house of P.W. 1 and that therefore, the version of P.Ws.

1 and 2 in the context of the other Official witnesses of the Taluk Office would be itself betray the prosecution case;

iv) The explanation given by the accused while he was examined u/s 313(1)(b) of the Code of Criminal Procedure has been thoroughly

misconstrued by the learned Sessions Judge; and lastly,

v) There was no valid sanction and Ex. P.13 does not comply with the legal principle enunciated by this Court as well as by the Apex Court and

more so, the evidence of P.W. 10 while referring to Ex. P.13 did not

Controverting every one of the said contentions, Mr. I. Subramaniam, learned Additional Public Prosecutor took every one of his nerves in

persuading me to accept the verdict of the trial Judge based on the acceptable and convincing evidence adduced by the prosecution. He would

contend that P.Ws. 1 and 2 are absolute and total strangers to the accused and they have no axe to grind against him and that under the

circumstances, their claim against the accused with regard to the demand of the bribe made by him and the bribe money given by them to him

during the trap set up by P.W. 17 has to be accepted and that was exactly done by the trial Judge and that there was no reason made available to

discredit or eschew their version. So also, for P.W. 3, the attestor of the recovery mahazar as well as the eye-witness for the trap set up and

implementation of the same and the consequent phenolphthalein test and so on. P.W. 4 to P.W. 15 are the Official witnesses, according to the

learned Additional Public Prosecutor, they had clearly spoken to the circumstances and state of affairs under which the accused was expected to

work and the role played by him. He would further contend that the setting up the law in motion through the complaint Ex. P.4 to P.W. 16 and the

registering of the same by P.W. 17 and the consequent trap has been clearly spoken to by P.W. 17 supported by P.Ws. 1, 2 and 3 has been

rightly accepted by the Court below and that there was no reason made available to disbelieve or discredit or suspect their version. Lastly, learned

Additional Public Prosecutor had contended that upon the due verification of all the records placed before him, the District Collector had, on

arriving at a full satisfaction, accorded sanction to prosecute the accused for the offences charged under Ex. P.13 and that therefore, what has

been contended on behalf of the Appellant upon Ex. P.13 is not correct. He would further contend that in the light of the admission made by the

accused, M.O. 1 series was since recovered by P.W. 17 on the day of occurrence and time, from his pant pocket and custody, particularly, that

money is the bribe money as claimed by P.Ws. 1 and 2 and that under the circumstances, it was for the accused/Appellant to rebut the said

presumption by means of acceptable legal evidence as provided u/s 19 on the amended Act. Thus, the learned Additional Public Prosecutor

justified the impugned judgment of conviction and sentence recorded by the learned Special Judge.

In the light of the above contra position, I have carefully and meticulously gone through the entire case records and the recorded legal

evidence. The only question that arises for consideration at this juncture, is whether the impugned judgment is vitiated with any erroneous or

incorrect approach adopted by the learned trial Judge in holding that the prosecution had established the guilt of the accused/Appellant beyond all

reasonable doubts.

With regard to the employment of the accused as Junior Assistant in Mylapore-Tripli-cane Office at Madras, working along with P.W. 4 to

P.W. 15, who were also the staff of the said Taluk Office in various capacities during the month of September 1988 and the submission of the

application for the transfer of the patta for his newly purchased house by P.W. 1 under Ex. P.1 on 2.8.1988 and the subsequent change on

5.8.1988 with the payment of challan for the fee for the consideration of the said application as evident from Ex. P.1, P-2 and P.3 as spoken to by

the prosecution witnesses, particularly, P. Ws. 1 and 2, 5, 12, 13, 8 and 9 there is not controversy or dispute among the parties herein. It was the

specific claim of P.W. 1 that as he was instructed, he had gone to the Taluk Office where the accused/Appellant was working along with P.W. 2

and enquired about the position of his transfer application and for which, it was his case that the accused/Appellant demanded a sum of Rs. 300/-

as illegal gratification and told him without which nothing could be done for a period of about a year but, if paid, it could be done within two days.

This demand according to P.W. 1 said to have been made by the accused was also spoken to by P.W. 2 who had accompanied P.W. 1 although.

It is seen further that pursuant thereto, they had decided not to give the money demanded as bribe but to lodge the complaint to the vigilance and

anti-corruption police. It was the finding of the learned trial Judge, upon considering the above said portion of the evidence that the evidence of P.

Ws. 1 and 2 seems to be natural, cogent, convincing and acceptable. If the isolated portion of the evidence of P. Ws. 1 and 2 irrespective of their

conduct and other circumstances is taken into account, one could agree with the learned Trial Judge. It is noticed at this stage that the accused was

one of the staff of the Taluk Office working as Junior Assistant in patta transfer section among 30 others and he himself was not the only person

solely responsible for effecting the transfer of the patta to the house property. P.W. 4, 5, 7, 8 and the Tahsildar P.W.15 and so many other

persons working in the said Office are also responsible for effecting the transfer of patta and the ultimate authority to effect the transfer is the

Tahsildar examined as P.W. 14. It is thus seen, P.W. 6 to P.W. 13 are also expected to contribute their work in effecting the transfer in part or

otherwise. It is also noted at this stage that P.W. 1 and P.W. 2 to take a decision not to pay the demanded bribe to the accused but however to

report the concerned Police have taken nearly 3 days from the evening of 16.9.1988 to 19.9.1988. From the perusal of their evidence in the

cross-examination, it is noticed that P. Ws. 1 and 2 are not the total strangers or first time visitors of the Taluk Office concerned on 2.9.1988.

Though P.W. 1 claims to have been an employee in one of the foreign countries, he is an India National, however, employed in Muscat, used to

come, and purchased the house property sometime long back and after getting the full documents with the help of his friend P.W. 2 had indulged in

the effort in taking application for transfer of his name in the patta, of the revenue records, during the month of August 1988. His admission that he

had paid a sum of Rs. 100/- towards the donation for the Teachers'' Day to P.W. 4 for no receipt was given assumes the one fact that he was

closely acquainted with every staff of the Taluk Office and had been a frequent visitor to and donated freely without any receipt. It was the

admitted case of the Revenue Officials that every year for celebrating the Teachers'' Day and Flag Day, at the instructions of the District Collector,

donation tickets in various denominations were supplied to them with particular target for collections and that collections. The month of August,

September three months were used to be made during prior to December every year. It is also admitted in evidence that for the year 1983, for the

Teachers'' Day donation collections were made and sums were collected and paid to the District Educational Officer through the Surveyors,

Revenue Inspectors and other staff of the Taluk Office concerned. It was not in dispute that the concerned Taluk Office was also entrusted with

the task of collecting the Teachers'' Day donations and Flag Day donations for the year 1988 with the permission of the authorities and accordingly

it has been collected. The testimony of P.W. 4, Revenue Inspector Tmt. Hasmath Sulthana is the direct illustration and her evidence clinches the

whole matter in question. It was the specific defence of the accused during examination u/s 313(1)(b), Code of Criminal Procedure that a sum of

Rs. 300/- M.O. 1 series was received by him from P.W. 1 only towards the Flag Day collection and kept it in his pocket and within a short-while

he was caught by P.W. 16 and P.W. 17 and follow up action was taken as if it was a bribe money. Thus, the admitted aspect of the defence taken

by the accused provides ample support to the prosecution case that at about 3.30 p.m. on 19.9.1988 he has received M.O. 1 series, the three

hundred rupee denomination currency notes from P.W. 1 and that was recovered from his custody by P.W. 17 in the presence of P. Ws. 1 to 3.

But in the context of his specific plea that it was not the bribe money but however, the Flag Day collection and the case was foisted against him, it

requires to be seen whether the prosecution has succeeded in its mission of establishing the guilt of the accused for the offences charged beyond

the realm of doubt.

As I have already adverted to P.Ws. 1 and 2 took three days to arrive at a decision to lodge the complaint against the accused for having

demanded the illegal gratification. There is no explanation of any kind or reasonings given by P.W. 2 for the delay to take a decision to lodge a

complaint for about three days. It is not as if the accused was the sole authority to effect the transfer. His part of the duty is expected to be a

meagre one in effecting the transfer of patta as the process of the same has to be completed by more than one staff of the Revenue Department as

clinchingly revealed from the evidence of P.W. 5 to P.W.15. Secondly, if really P.Ws. 1 and 2 were instructed by P.W. 17 as a part of the trap

formulated and consequently when it was implemented, one would normally expect P.Ws. 1 and 2 should have given the money on completion of

the object for which, they have to pay the money but that was not so in this case. P.Ws. 1 to 3 consistently claim that at about 3.30 p.m. on

19.9.1988 when the bribe money, M.O. 1 series was paid to the accused by P.W. 1 in the presence of P.Ws. 2 and 3, the accused took the

prosecution witnesses to P.W. 4, the draftsman, who was in a separate room nearly and asked something and something was replied and when

returned. It is noted that it is not the specific case of P.W. 2 and P.W. 3 that they had not accompanied the accused to the room of P.W. 4 but

they were specific in claiming that they had not noted what transpired between them. P.W. 3 was silent as to whether he accompanied P.W. 1 and

the accused to the room of the draftsman. There is a totally different version given by P.W. 1 in this regard that when he was taken to the room of

the draftsman P.W. 4 by the accused, P.W. 4 replied the accused that the draft sketch was not ready and that therefore, the accused asked her to

finish the same shortly and he returned and that however, the accused had told him that he would bring the transfer order as he knew the house of

P.W. 1 already. This answer elicited in the chief examination assumes every significance and importance in this case for assuming that P.W. 1 is not

a total stranger but however had already acquaintance with the accused and that in this context, the accused and P.W. 1 were already known to

each other and had some dealings and that was the reason why the accused was said to have given the answer that he would bring the transfer

order to his house as the same was not ready on the day and time when the bribe money was paid. Significant at this stage to note is that P.W. 2

and P.W. 3 claiming to be present although continuously were silent about these facts and did not speak a single word about this. Therefore, the

omissions on the part of P.W. 1 assumes a major important factor in this case touching their very attitude and conduct, certainly not in favour of the

prosecution but giving some room for serious doubt about their testimony. The still worst part of the evidentiary value of their testimony is P.W. 1

and P.W. 2 admitted that they had not told the investigating Officer the said fact at the earliest point of time but only have stated before the trial

Court. Having considered the above aspect, I am able to identify the basic and serious doubt in the so-called consistent claim of P.Ws/1, 2 and 3.

It is also noticed that the accused seems to have been working amidst 30 staff of the Taluk Office, sitting one behind the other in the tables and

that was in two rows. If that was so, three days'' time consumed by P.Ws. 1 and 2 to lodge the complaint would have also made them to complain

to the Tahsildar or the Deputy Tahsildar or other staff about the illegal demand made by the accused but nothing was admittedly done by them.

of the two witnesses summoned for the trap in two instalments, one at the Office of the Vigilance and the latter at the scene of crime, in the

Taluk Office, P.W. 3 Perumal alone was examined and Kumaraswamy was not examined, both were the staff of the T.W.A.D Board and whose

services were requisitioned by P.W. 17 on 19.9.1988. Significant to note is that there is a direct conflict between the claim of P.W. 17 and P.Ws.

1 and 2 as to the person who was present along with P.Ws. 1 and 2 during the implementation of the trap that was either P.W. 3 or Kumarasamy.

In the context of the other attestor of Ex. P.6 and Ex. P.7 has not been examined P.W. 17 claims only the reference of the attestation by

Kumarasamy. Even P.W. 3 Perumal has not stated at which place he was standing at the time when accused took P.W. 1 and P.W. 2 to the

rooms of the draftsman. All the more the evidence given by P.W. 4 during the re-examination voluntarily that she had sold out a ticket to P.W. 1

and gave the collected amount to her husband to remit in his Office account would throw every light that P.W. 1 is not a stranger to every one of

the staff of the Taluk Office and also used to donate by purchasing tickets either for Teachers'' Day or Flag Day. The evidence of P.W. 5 is that at

about 3.30 p.m. on 19.9.1988 she stated to the accused that the draft for effecting the transfer was not ready and she promised to complete it

shortly and hand over the same within a short time and within that time, the Vigilance Officers came and examined her. Under the above

circumstances, it is also discernible to comprehend whether it was prudent for a man to go and comply with the request of a Government Servant

to pay the bribe when his obligation had not been fulfilled or completed. To fill up this gap, it seems that P.W. 1 was instructed to give in evidence

that the accused had promised that he would bring the transfer order to his house. This embellishment however goes to the root of the prosecution

case in creating a serious doubt about the conduct and attitude of P.W. 1. Admittedly, he has not stated so when he was examined by the Police.

From the above, a serious doubt arises about the character and conduct of the consistent claim of P.Ws. No. 1, 2 and 3. Significantly, P.W. 2 was

silent about the said facts but however, conveniently avoided by stating that he had not taken note of. The doubts above referred inherent in the

character and conduct in the oral testimony of P.Ws. 1 to 3, though was noted by the learned trial Judge, according to the Judge, they are only

minor in nature and do not affect the case of the prosecution, in my respectful view, it is not so, but the fact is totally on the converse for the very

reasoning that the accused had admitted the recovery of M.O. 1 series from his pocket by P.W. 17 and submitted that a case was foisted

subsequently which the learned Judge has pertinently referred to. But however, for the inherent doubt pointed out above from the evidence of P.

Ws. 1 to 3, I am of the firm view that though the testimonies of P. Ws. 1 to 3 are consistent in nature manifestly but in every breadth and depth it

has become highly improbable, suspicious in nature and character and therefore, it is highly unsafe to accept and believe their version to place a

conviction against the accused.

Having thus adverted to the prosecution case spoken to by P. Ws. 1 to 3, the defence of the accused seems to have been probabilised by the

oral testimony of P.W. 4, the Revenue Inspector. It is the common knowledge that the target amount of donations being collected by the Revenue

authorities cannot be expected to be done always personally and directly but through their subordinate staff inclusive of the Junior Assistants,

Clerks and Peons working under them in the same office as well as from the customers and visitors to the Offices. The defence taken by the

accused that M.O. 1 series was recovered from him which was given by P.W. 1 towards the Flag Day donations cannot be brushed aside into on

the ground of mere technicality provided u/s 20 of the Prevention of Corruption Act 1988, True, M.O. 1 series was admittedly recovered from the

custody of the accused but to raise such presumption, the explanation given by the accused coupled with the evidence of P. Ws. 5, 6 to 15 render

all corroboration to the inference that every staff and Officer of the Revenue Department would be engaged in the collection of donations for the

Flag Day and Teachers'' Day celebrations every year, can be taken judicial notice of, that being so, the explanation given by the accused can be

accepted safely and in such circumstances, it is for the prosecution to prove the guilt of the accused that the accused had committed the offences

for which he was charged and tried.

While the testimony, of P.Ws. 1 and 2 the author of the complaint Ex. P.4 are suspected with every serious doubt, then whatever be the kind

of investigation done, as spoken to by P.Ws. 16 and 17 in the context of new circumstances claimed by P.W. 4 to P.W. 15, there arises a serious

doubt about the possibility of the offence committed by the accused. The learned trial Judge, with great respect, has proceeded only on the basis

of the admission and that therefore, recorded the conviction without even adverting to the basic doubts inherent in the testimony of P.Ws. 1 to 3,

which is clearly erroneous and improper in the eye of law.

While considering the evidence of P.W. 5 and other Official witnesses of the Revenue Department, learned trial Judge has apparently failed to

take note of the fact that every one in the said office is to be engaged in collecting donations for the Teachers'' Day and Flag Day and that P.W. 1

has also contributed towards the Teachers'' Day donations to P.W. 4 and the infirmities in her testimony have been clearly lost sight of, which goes

to the root of the controversy in this case. Besides, as I have already adverted to, though three days'' time was taken by P.Ws. 1 and 2 to lodge

the complaint to the Vigilance Police EX. P/4, it is significant to note that they did not think of complaining the matter to the Tahsildar or the higher

authorities in the Revenue Department. To arrest a person or secure a staff of the Government Office, for having allegedly demanded the illegal

gratification, it is hardly believable for a total stranger to become amenable to a trap set up by the Police Officials on a single isolated act and this

factum cannot be ignored to be taken note of while considering the evidence of P.Ws. 1 and 2. No other witnesses had been cited on behalf of the

prosecution for the trap set up by P.Ws. 16 and 17 in this case of spite of the fact that several witnesses including P.W. 4 to P.W. 14 were

working in the same premises. Learned trial Judge is not correct in believing the evidence of P.Ws. 1 to 3 on the one factor of the occurrence and

the rest P.Ws. 4 to 15 as to the surrounding circumstances and that therefore, it is not possible for me to place any reliance upon their testimony

and believe their version as true and acceptable. Having thus considered, I am of the firm view, that the oral testimony of P.Ws. 1 to 3 on the one

hand for the occurrence proper is in direct conflict and improbabalises the claim made by P.W. 45 to 15 on the other hand in the contest of the

specific defence taken by the accused.

The last contention is with regard to the sanction accorded by the District Collector under Ex. P.13 as spoken to by P.W. 10. P.W. 10 is a

staff employed in the District Collector''s office he has spoken about Ex. P.13, the written sanction given by the District Collector on 6-6-1989

according sanction to prosecute the accused for the defences above referred. It was the contention made by the Bar on behalf of the

Appellant/accused that the sanctioning authority has not applied its mind with reference to any documents or materials placed before him to arrive

at a full satisfaction that there appeared to be every prima-facie and satisfactory case for according sanction for the prosecution of the accused,

though it was controverted by the learned Additional Public Prosecutor, to appreciate the said contention. I have extracted the contents of Ex.

P.13 as hereunder:

Proceedings of the Collector of Madras, Madras. 5

Present Thiru Jor Singh Shiam, I.A.S.

A. 2/66147/88 dated 9-6-1989

Sub: Public Servant - Madras District Revenue Unit - Thiru S. Krishmnamoorthy, formerly Special Temporary Assistant - Mylapore - Triplicane

Taluk - Demand and acceptance of bribe-Sanction of prosecution - Ordered.

Read: Report dated 31-1-1989 from the Director, Vigilance and Anti - Corruption, Madras and the connected records.

Order;- Whereas Thiru S. Krishnamoorthy, Special Temporary Assistant, Office of the Tahsildar, Mylapore - Triplicane Taluk Office, Madras is a

Public Servant.

Whereas it is alleged that Thiru S. Krishnamoorthy, pursuant to the demand made by him of a sum of Rs. 300/- form Thiru P.M. Sushen of No. 5,

Adikesavelu Street, Chindadripet, Madras on 16-9-19089 afternoon, at his Office, accepted the said sum of Rs. 300/- from the said Thiru Sushen

at his office on 19-9-88 at about 3-15 p.m. as gratification other than legal remuneration as motive or regard for expediting the application for

transfer of patta in his name in respect of the house property at No. 5, Adhike-savelu Street, Chindadripet, Madras then pending in the said Office.

Whereas it is further alleged that at the same time, place and in the course of the same transaction, Thiru S. Krishnamoorthy, being a public servant

as aforesaid, by corrupt and illegal means, and by otherwise abusing his position as public servant, obtained for himself for the said P.M. Sushen,

the said sum of Rs. 300/- as pecuniary advantage, in the circumstances stated above.

Whereas the said acts of Thiru S. Krishnamoorthy constitute offences under Sections 7 and 13(2) Read with Section 13(d)(i) and (ii) of the

Prevention of Corruption Act, 1988 (Central Act 49/1988)

And whereas, I Jor Singh Shiam, I.A.S., collector of Madras being the authority competent to remove the said Thiru S. Krishnamoorthy from his

office after fully and carefully examining the materials placed before me in regard to the said allegations and the circumstances of the case satisfied

that the said Thiru S. Krishnatnoorthy, should be prosecuted for the offences aforesaid.

Now therefore, I do hereby accord sanction required u/s 19(1)(c) of the Prevention of Corruption Act, 1988, (Central Act 49/1988) for the

prosecution of Thiru S. Krishnamoorthy, Special Temporary Assistant in the Mylapore-Triplicane Taluk Office, Madras for the said offences and

for taking cognizance of the said offences and for taking cognizance of the said offences by a court of competent jurisdiction.

sd.... 9.6.1989 Collector of Madras.

To

The Director of Vigilance and Anti Corruption, Madras

This Court had the occasion to consider the sanction question as provided under the Prevention of Corruption Act, 1954 under Sections 5(1),

5(2) read 5(1)(d) along with Section 161 I.P.C., in Charles Waker Devadass v. State (1993 (3) Crimes 926) and observe as follows, following

the Supreme Court judgment as hereunder:

In Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, the Supreme Court has laid down that It is incumbent on the prosecution to prove that a

valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the

offence. This should be done in two ways: either (1) by producing the original sanction which itself contains the facts constituting the offence and

the ground of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the sanctioning Authority. and the satisfaction

arrived at by it. Any case instituted without a proper sanction must fail because this being manifest defect in the prosecution, the entire proceedings

are rendered void ab-initio. What the court has to see is whether or not the sanctioning Authority at the time of giving sanction was aware of the

facts constituting the offence and applied its mind for the same and subsequent fact which may come into existence after the grant of sanction is

wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection

to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against

the public service concerned.

Following, the ratio of the Apex Court, this Court in Periasatny v. Inspector Vigilance and Anti - Corruption Tiruchirapalli (1992 L.W. (Crl. 582) ,

has held that the sanction order given by authority to prosecute an accused under the Prevention of Corruption Act is not an empty formality but it

should be after full satisfaction on the basis of the materials and evidence made available with regard to the allegations made against the particular

accused and that the non giving of any reasons pertaining to the grounds of satisfaction amounts to invalidating the sanction order itself and not in

accordance with law.

The Allahabad High Court in Har Bharosey Lal Vs. State of U.P., has also observed that courts cannot act on surmises or conjectures nor will

have to be guided by extraneous considerations matters which are not on record. The grant of sanctions is not an idle formality but a solemn and

sacrosanct act which provides protection to public servants against frivolous prosecutions. This requirement of law has not been complied with

before launching prosecution against the Appellant.

It is thus seen that in according sanction prosecution as contemplated u/s 6 of the prevention of Corruption Act the sanctioning Authority should

necessarily apply its mind and get itself satisfied that a case for sanction has been made out, constituting the offences. The prosecution has to prove

this in two ways, either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction

and (2) by adducing evidence aliunde to show the facts placed before the sanctioning Authority and the satisfaction arrived at by it. A case

instituted without adopting the above referred legal concept and ingredients must necessarily fall because this being a defect manifest in the

prosecution and as such the entire proceedings are rendered void ab initio. Though the report of the Director of Vigilance and Anti-Corruption

with particular reference number has been referred to in the column of ''reference'' to Ex. P.29 and in paragraph 5 careful and full examination of

the materials and records placed before the sanctioning authority was referred to, it is manifest and apparent that if is not known what are all the

documents that have been relied upon by the Sanctioning authority to arrive at the satisfaction and what are all the grounds of satisfaction are totally

absent in this case. Above all, evidence aliunde involved in this case prostrating the facts leading to the offence before the sanctioning authority and

his perusal of the same is absent totally in this case.

Keeping in view the principle laid down in the above cases to the facts of the instant case, particularly, with reference to the contents of Ex. P.

17, I have to say that the decision of mine held in the above case law squarely applies in all the fours, namely, that the sanctioning authority not at

all seems to have applied his mind in according the sanction to prosecute the accused. The report of the Director of Vigilance and Anti Corruption

has not been placed before the Court nor copy of which is forth coming. It is not known what are the documents and materials placed before the

sanctioning authority and on what matters and materials and grounds, the sanctioning authority has arrived at its satisfaction to accord the sanction

for prosecution, Merely adverting to a reference of a report, without either stating the grounds or facts even, it is seen that the basic norms held by

the courts, very often and repeatedly have not been followed. It is the settled principle of law that the granting of sanction for the competent

authority to prosecute a public servant is not an empty or an idle formality but however, it is an act attached with sacrosanctity to be exercised with

every solemnity, to look into every matter and materials so carefully in order to save the public servant from falsely and fictitiously roping him in a

vexatious or frivolous prosecution and public servants are expected to be saved only when the competent authorities are complying with the

abovesaid legal norm settled down by the courts of law and unless this has been fully followed, the legislative mandate nor the law settled by the

Apex Court cannot be deemed to have been followed, which otherwise renders the while proceedings void ab initio. This case is yet another

instance in this regard. For the foregoing reasons, I am at every difficulty to countenance the very contentions made by the learned Additional

Public Prosecutor in this regard.

The legal presumption envisaged u/s 20 of the Prevention of Corruption Act, 1988, was relied on by the learned Additional Public Prosecutor

coupled with Section 19 of the Act. Section 19(1)(b) reads as follows:

Previous sanction necessary for ""Prosecutions - (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and

15 alleged to have been committed by a public servant, except with the previous sanction,

(b) in the case of a person who is employed the connection with the affairs of a State and is not removable from his office save by or with the

sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

Sub-section (3) of Section 19 reads as follows:

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the

ground of the absence of, or any error, omission or irregularity in the sanction required under Sub-section (1), unless in the opinion of that court, a

failure of justice in fact, been occasioned thereby;)

Sub-section (4) also relevant to be noted reads as follows:

(4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity, in such sanction has occasioned or resulted

in a failure of justice the court shall have regard to the fact whether the objection could not should have been raised at any earlier stage in the

proceedings.

Explanation: For the purposes of this Section,

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or

with the sanction of a specified person or any requirement of a similar nature.

It is obvious and specifically spelt out that Sub-section (3) of Section 19 introduced a new provision that a finding, sentence or order passed

by a Special Judge shall not be reversed or altered by a Court in appeal, confirmation or revision on the ground of absence of sanction or on the

ground of absence of sanction or in the sanction unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. Sub-

section (4) as above referred seems to have laid that in determining whether there is a failure of justice or not, the Court shall have regard to the

fact whether the objections could and should have been raised at an earlier stage in the proceedings. The explanation given thereto further clarifies

that what is meant by or what exactly means of the concept of error, which of course, includes the competency of the authority to grant sanction

and that sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority

or the sanction of a specified person or any requirement of a similar nature. It is thus seen that simply because there is an error or omission or

irregularity found in the sanction, the finding or sentence or order passed by the trial court or a Special Judge shall not be reversed or altered unless

the basic element that the Court identifies is a failure of justice emerging out of such an error, omission or irregularity. What exactly means the

error, omission or irregularity has also been explained that it includes the competency, of the authority and the requirement of any reference at the

instance of a specified authority or any requirement of a similar nature. The above definitions and conditions are subject to one limit by the

enactment that on finding that there is a failure of justice in the case of a judgment or order, then the court has got power to vary or alter

irrespective of the omission, irregularity or error which are only technical in nature. It was also incumbent upon the Court to see that the objection

in this regard could and should have been raised at the earlier stage in the proceedings. The Act does not definite what exactly is the stage which

pertains to the earlier stage either, whether it was before the commencement of the trial or during the trial. Be that as it may, it is also settled that

the validity of the sanction can be conclusively exercised only after the trial for the mere reasoning that the prosecution has adduced the original

sanction order or the evidence aliunde to prove its validity. If both the aspects are put in juxtaposition and read together, it is incumbent upon the

Court to see that the objection in the above regard could and should have been taken during the time of trial. This kind of legal exercise is not

supposed to be obligatory but somewhat directory in nature. However, it is noticed that the validity of a sanction order is a question which should

have been raised during the time of trial. But the wordings and phrases employed in the above Section of law after it was amended does not imply

that the non-taking of such a plea of invalidity during the trial of the proceedings at the earlier stage amounts to estoppel by plea in the criminal trial.

Nevertheless, it is incumbent upon the Court to consider that fact also. Since the granting of sanction is held to be a solemn and sacrosanct act on

the part of the competent authority to grant it and non an idle formality or a matter of routine procedure. It has to be done with the application of its

mind in full vigour and after fully satisfied only follows the according of sanction. Thus the new provisions provided under the amended Act also do

not held the prosecution to stick on with the sanction which is void ab initio. There is virtually a great distinction between a sanction inherent with

irregularity or omission or error that may be superfluous and a sanction void ab initio which is totally invalid and cannot be cured.

Having thus seen the distinction and legal position identified and applying it to the facts of the instant case, I am of the firm view that though the

question of total invalidity of the sanction Ex. P.13 has not been taken before the trial court since it is a question of law comprehensively intended

to protest the public servants from roping them by false cases or motivated personalities, the whole proceedings in this case has resulted in the

gross failure of justice done in rendering the impugned judgment. For all the said reasonings and having thus considered the whole case with its

legal and presumptive implications and the legal validity, I am of the definite view that there was no valid sanction in this case which vitiates the

whole prosecution against the Appellant in toto.

For all the foregoing reasons, I feel that I am totally unable to persuade myself to countenance the various submissions made by the learned

Additional Public Prosecutor in justifying the impugned judgment. The converse is I have accepted the very contentions raised by the Bar on behalf

of the Appellant. No other point has been urged before me. Having thus considered the whole gamut of the case, the impugned judgment is found

inherent with the total failure of justice to the accused and that in view of the same, I am fully constrained to set aside.

In the result, the appeal succeeds and stands allowed. The conviction and sentence recorded by the learned VI Additional Special Judge,

Madras Division in Calendar Case No. 21 of 1989 dated 27.11.1990 is set aside and the Appellant/accused is acquitted. Fine amount if any,

already paid is ordered to be refunded.