S. Narayana Pillai vs State of Tamil Nadu

The accused in Special Case No. 2 of 1985 on the file of the learned Chief Judicial Magistrate and Special Judge, Nagercoil, is the appellant.

The accused was working as Revenue Inspector in Nagercoil Municipality. He was charged for offences under S. 161 of the Indian Penal Code

and also under S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act.

The case of the prosecution is that the accused had received a sum of Rs. 100/- by way of illegal gratification from Narayanan, P.W. 1 (Rs.

50/- for himself and Rs. 50/- for the Bill Collector, in all Rs. 100/-) by misusing his position as a public servant, promising to P.W. 1 that he would

not raise the house tax. The accused denied the charges and pleaded not guilty. The prosecution has examined P.Ws 1 to 11 and marked Ex. P. 1

to 17 and M.Os. 1 to 3. The accused has examined one Shanmugham as D.W. 1 and marked Ex. D. 1 to D. 3 on his side. After considering the

oral and documentary evidence, the trial Court found the accused guilty under S. 161 of the Indian Penal Code and under S. 5(2) read with S.

5(1)(d) of the Prevention of Corruption Act, the lower court convicted and sentenced the accused under S. 5(2) read with S. 5(1)(d) of the

Prevention of Corruption Act to undergo R.I. for one year. The lower Court has not imposed any sentence under S. 161 of the Indian Penal

Code. Aggrieved by the Judgment of the lower Court, the accused has filed this appeal.

P.W. 1, Narayanan, is an advocate at Nagercoil and he was living at No. 18/6-89 at Krishnan Koil area. P.W. 1 has let out his upstairs to

Ramakrishnan and the eastern portion to one Sivasubramaniam, P.W. 3, on a monthly rent of Rs. 50/- each. According to P.W. 1 the half-yearly

tax for the house is Rs. 58-80. After the father of P.W. 1 had expired, demand notice was issued to P.W. 9, Boothalingam, elder brother of P.W.

But P.W. 1 along was paying the house-tax for the said house and at the end of November 1983. Muthuraj, the Bill Collector of Nagercoil

Municipality, went to P.W. 1, and told him that they were going to raise the house-tax from Rs. 58-80 to Rs. 300/- since P.W. 1 had let out the

house to tenants. When Muthuraj, the Bill Collector told him definitely that the house-tax would be raised by the Municipality and P.W. 1, asked

him as to what was the remedy for not raising the house tax. According to P.W. 1, the Bill Collector told him that if P.W. 1 would pay a sum of

Rs. 50/- for himself and another sum of Rs. 100/- for the accused, then the problem could be solved. After four or five days, P.W. 1 went to the

Municipal office, met the accused and asked him about the proposed increase of house-tax and for which the accused is said to have told P.W. 1

that if P.W. 1 would pay a sum of Rs. 50/- for himself and Rs. 50/- to Muthuraj, the Bill Collector, then the problem could be solved. P.W. 1

deposed that he met the Bill Collector on 13-12-1983 at Municipal Office and the said Bill Collector asked him whether he had brought the

money. P.W. 1, told him that P.W. 1 told him that he had no money then and he was having only Rs. 25/- and he paid to the Bill Collector the sum

of Rs. 25/- and by accepting the said money, the Bill Collector told him that P.W. 1 should pay the balance of Rs. 25/- before the 15th of that

month as otherwise the tax would be increased and he also advised P.W. 1 to go and meet the accused. On 15-12-1983 at 7.30 a.m. P.W. 1

went to the house of the accused and according to him, the accused enquired whether he had brought the money. P.W. 1 replied that he had no

money then and he would bring the money in the evening. It is also the evidence of P.W. 1 that the accused told him that the sum of Rs. 100/-

should be paid in the evening at the office as otherwise the tax would be increased. P.W. 1 thought that the bribe should not be given to the

accused and so he wanted to give a report to the Police. Accordingly, he prepared Ex. P. 1 and went to the Anti-Corruption Office at Nagercoil

at 3.00 p.m., and he gave the same to P.W. 11, Balasubramaniam, Inspector of Police. P.W. 11, the Inspector of Police received Ex. P. 1, report

submitted by P.W. 1 at 3 p.m. on 15-12-1983 and registered the case in Cr. No. 4/83. Then P.W. 11 sent for two official witnesses and he made

arrangement through Bharathan, Inspector of Police, for the trap. Vincent and Abdul Hameed, the officials from the Sub Treasury Office at

Nagercoil were sent for that purpose by P.W. 11 and P.W. 11 introduced the two officials to P.W. 1 and gave Ex. P. 1 to them for perusal and

they read over the same. P.W. 1 produced the currency notes to the value Rs. 100/- to P.W. 11. He made arrangement for preparation of Sodium

Carbonate solution through his subordinate and he explained the significance of the test to P.Ws 1 and 2 and Vincent. He prepared a mahazar for

the proceedings under Ex. P. 2 and P.Ws 1, 2 Vincent and Bharathan have signed in Ex. P. 2. P.W. 11 asked P.W. 2, Abdul Hameed, to

accompany P.W. 1 to the house of the accused and P.W. 1 gave instruction to P.W. 1 to give the money to the accused if the latter had asked for

it and to give signal by rubbing his face with hand kerchief. Accordingly, P.Ws 1 and 2 went in a scooter to the office of the Municipality and there

the accused was not present till about 7 p.m., and on instructions of P.W. 11, P.Ws 1 and 2 went to the house of the accused and to pay the

money to the accused and if the accused had received the money, P.W. 1 should give a signal by putting on the torch light and P.W. 11 also gave

a two-cell torch light to P.W. 1 for the said purpose. P.W. 2 was instructed to hear the conversation between P.W. 1 and the accused and to

watch the payment of money to the accused. Accordingly, P.W. 2 stood near the outer window of the accused and P.W. 1, went to the house of

the accused at 7.45 p.m. and the accused asked P.W. 1 as to whether P.W. 1 had got the money, P.W. 1 took the amount from his diary and

paid it to the accused and the accused counted the same. The accused is said to have asked P.W. 1 as to whether P.W. 1 had to pay the balance

of Rs. 25/- to the Bill Collector Muthuraj and told him that they would not increase the house tax. P.W. 1 came out of the house and the accused

came out and saw P.W. 2. The accused after receiving the money kept it on a Bench in his room and P.W. 1 gave the signal with the torch light as

instructed and the Superintendent of Police and his party, P.W. 2, P.W. 3 and P.W. 1 entered the house of the accused and the accused was

found perplexed. P.W. 11 introduced P.W. 2 and others to the accused and he arranged for preparation of Sodium Carbonate Solution and he

directed the accused to dip his fingers. Accordingly the accused dipped his fingers in the solution and the colour of the solution turned into Pink.

Then he took the solution in M.Os. 1 and 2 bottles separately and asked the accused about the money received by him from P.W. 1. The accused

showed the currency notes on the Bench and he directed P.W. 1 and Vincent to check the numbers of the currency notes with the mahazar was

prepared for the proceedings under Ex. P. 3 and P.W. 11 arrested the accused and prepared an observation mahazar under Ex. P. 4 and

searched the house of the accused. Ex. P. 13 is the rough sketch of the place of occurrence. P.W. 11 sent the mahazars and also the M.Os. to the

lower Court on 17-12-1983 and also gave Ex. P. 8 requisition to the Court for sending M.Os. 1 and 2 for chemical examination. P.W. 11

examined P.W. 4 on 21-12-1983 and also brought the Register regarding the house tax. P.W. 12 got Ex. P. 5 monthly register from the office of

the Municipality and found that the house-tax by P.W. 1 was not at all recommended for enhancement of tax for P.W. 1''s house. P.W. 8, the

Head Clerk of the lower Court received Ex. P. 8 requisition given by P.W. 11 for sending the M.Os. for chemical examination and accordingly he

had done so and P.W. 8 received Ex. P. 10 report of the Chemical Examiner. On 29-1-1985, P.W. 11 went to Madras and obtained Ex. P. 12

sanction to prosecute the accused and he examined P.W. 10, Personal Assistant to the Director of the Municipality. P.W. 11 received Ex. P. 11

sanction order signed by P.W. 10. Subsequently, P.W. 11 came to know that the sanction order should be signed by the Director of Municipality

and so he got his signature under Ex. P. 12. Ex. P. 15 is the Demand Register and Ex. P. 16 is the Property Tax Register. On 14-12-1983 and

15-12-1983 the accused was on casual leave and P.W. 7 Ranganathan gave evidence about the leave taken by the accused on those days. P.W.

11 found from Ex. P. 15 that the tax for the house of Boothalingam was only Rs. 58-80. After examining all the witnesses, P.W. 11 filed the

charge sheet against the accused on 21-3-1985 before the lower Court.

The accused when questioned under S. 313 of the Criminal Procedure Code about the incriminating circumstances available from the evidence

of the prosecution witnesses, the accused denied the accusation against him and submitted that he had not received any bribe from P.W. 1 and that

P.Ws. 1 and 2 deposed falsely against him. He also examined D.W. 1 Shanmugham on his and he also filed his defence in writing. The lower

Court after considering the oral and documentary evidence, found the accused guilty and convicted and sentenced him as stated above.

The learned counsel for the appellant Mr. K. Kulandaivelu, submitted that the evidence of PWs 1 and 2 is contradictory in material particulars

and that the evidence is not all reliable. The second contention raised by the learned counsel for the appellant is that the sanctioning authority had

not applied his mind by perusing all the material records in this case and so that the sanction order itself is illegal. Yet another argument raised by

him that PW 1 himself is an advocate, that he has got motive against the accused since the accused wanted to raise the property since the Rs.

58.80/- to Rs. 300/- for the house of PW 1 as the latter had inducted two tenants in two portions of his house on a monthly rent of Rs. 50/- each.

According to the learned counsel for the appellant that the tax for the house of PW 1 remains the same for several years without any enhancement

and that the Municipality had to increase the property-tax proportionate to the rent collected by PW 1. Another contention raised by the appellant

is that Abdul Hameed, PW 2, an official trap witness was a college mate of PW 1, that PW 1 was an Assistant Public Prosecutor for about two

months in the Court of Judicial Magistrate of Kuzhithurai, that PW 11 was then working as Inspector of Police at Kottar and PW 1 had filed the

case falsely against the accused with the help of PWs 2 and 11. The learned counsel for the appellant also pointed out that the case filed by the

police against the Bill Collector Muthuraj under the Prevention of Corruption Act in C.A. No. 861 of 1986 ended in acquittal by the judgment of

this Court on 23-6-1992. Even in C.A. No. 861 of 1986, Narayanan, PW 1 in this case was PW 1 and the learned counsel for the appellant

submitted that the evidence of PW 1 was not accepted in the other Criminal Appeal No. 861 of 1986. I do not accept that contention since the

evidence of PW 1 might not be reliable in the other case but that should not be a criterion for believing the evidence of PW 1 in the present appeal.

But the fact remains that the Bill Collector Muthuraj was acquitted in C.A. No. 861 of 1986.

Now I have to consider the veracity of the evidence of PWs 1 and 2. Admittedly PW 1 is an advocate and the tax for his house is Rs. 58.80/-.

It is not disputed that the house-tax for the house of PW 1 was to be raised at that time by Nagercoil Municipality and the accused was the

Revenue Inspector and the said Muthuraj was the Bill Collector. It is only PW 1 who had asked the accused and Muthuraj as to the way by which

he could escape the enhancement of tax. According to him it is only the Bill Collector Muthuraj told him that PW 1 should pay him Rs. 50/- for

himself and another sum of Rs. 100/- to the accused and if that was done by PW 1 the problem could be solved. Thereafter only PW 1 seemed to

have met the accused and asked about the proposed enhancement of the tax. It is the evidence of PW 1 that the accused also reiterated the same

to PW 1 and the accused asked PW 1 as to whether he had paid Rs. 25/- to Muthuraj and asked to pay the balance of Rs. 25/- before 15th

November, 1983. PW 1 being an advocate is expected to know the provision of Municipal Act regarding the payment of tax and he should not

have asked the accused and Bill Collector as to how he could escape enhancement of tax. It is the case PW 1 that on his enquiry the Bill Collector

and the accused alleged to have told him to pay a sum of Rs. 50/- to the Bill Collector and another sum of Rs. 100/- to the accused. There is

evidence is this case that Abdul Hameed was a college mate of PW 1 and PW 11 was also a Sub-Inspector of Police of Kottar when PW 1 was

the Assistant Public Prosecutor. The learned counsel for the appellant had contended that PW 1 had foisted the case against the accused with the

help of PWs 2 and 11 falsely. The evidence of PW 2 is that he was standing at the outer window of the house of the accused by hiding himself

from the eye sight of the accused. PWs 1 and 2 deposed that the accused was found seated in the front hall of his house. The evidence of PW 2

that he was standing at the outer window of the house of the accused by hiding himself and that he noticed the payment of currency notes, M.O. 3

to the accused cannot be accepted since if PW 2 was hiding himself from the eyesight of the accused, he could not have noted the receipt of the

currency notes by the accused from PW 1. The further evidence of PW 2 is that he could hear the accused asking PW 1 as to whether he had

brought the money, cannot be accepted, since PW 2 without getting into the hall of the house of the accused could not have heard the same. PW 2

is not speaking the truth. According to PW 2, the accused had seen PW 2 standing outside his house and if the accused had seen him standing

naturally the accused would have asked PW 1 as to who was PW 2. PWs 1 and 2 did not say that the accused asked PW 1 or PW 2 as to who

PW 2 was. Normally when the accused had received the bribe from PW 1 in his house and when he found a stranger standing outside his house

and hiding himself, any prudent man would have questioned PW 2 about his presence and about his identity also. PWs 1 and 2 were silent in this

respect.

Now let me consider whether P.W. 1 is a reliable witness. The court would expect a better evidence from P.W. 1 being an Advocate by himself

but appears that he is not a truthful witness. I was pointed some instances from the evidence of P.W. 1 to show that he is not a truthful witness.

When a question was put to P.W. 1 as to when lastly the house-tax of Rs. 58.80 was levied and when it was suggested that it was in 1970, P.W.

1 replied that he did not know that it was in 1970. To another question put to P.W. 1 that it was the Commissioner for the Municipality who is a

competent person to increase the tax. P.W. 1 he replied that it did not strike him to look into the rules of the Municipality regarding the levy of tax.

He knew that there is a provision for appeal in the Municipal Act if the tax was raised but according to him the procedure was not at all useful in

practice. He admitted that he knew that enhancement of tax could be done after issue of special notice and that a reply could be given if such a

notice was issued to him. But P.W. 1 stated that everything in the procedure was an eyewash. To another question put by the accused to P.W. 1

as to whether the proceedings of the courts were also an eyewash, P.W. 1 replied that he did not know. I am unable to understand as how P.W. 1

being an advocate could reply like that. P.W. 1 admitted that for his house, house-tax was raised from Rs. 20/- to Rs. 58/- and the appeal filed by

his father was dismissed. According to P.W. 1 that the enhancement of tax would would be made indiscriminately by the Municipal Officers and he

came to know of it by experience. P.W. 1 decided not to pay any bribe to Muthuraj whatever happens regarding the increase of the tax but he

himself went to Municipal Office and met Muthuraj and the accused. Even though the P.W. 1 knew that a person earning income of Rs. 200/- per

mensem should pay profession-tax but P.W. 1 did not pay profession tax. P.W. 1 admitted that he has no income through his profession. When a

suggestion was put to P.W. 1 that when P.W. 1 was working as Assistant Public Prosecutor at Kuzhitharai, he knew the Inspector

Balasubramaniam, then working as Inspector of Police at Kottar, P.W. 1 replied that he did not know. This part of evidence of P.W. 1 is

unreliable since as an Asst. Public Prosecutor, he should have known P.W. 11 working at Kottar. P.W. 1 was an Asstt. Public Prosecutor for two

months in the year 1970. The defence of the accused is that the accused did not know anything about the understanding between P.W. 1 and

Muthuraj, P.W. 1 abused the accused when the latter asked about the details of the property-tax and P.W. 1 came to know that the accused was

arranging to gather materials for imposing the profession-tax and also for raising the house-tax for P.W. 1 and P.W. 1 had foisted the case falsely

being aggrieved with the proposed action of the accused regarding the tax. It was also suggested to P.W. 1 that the latter had misunderstandings

with the accused as the accused wanted to levy profession-tax on the wife of P.W. 1 also because P.W. 1''s wife was doing business in profitable

manner. The further defence of the accused is that he did not receive money from P.W. 1 that P.W. 1 had dropped Phenolphthalein paper. and

accused took out the same and had seen it and in the meanwhile the Police party entered the house and seized the Phenolphthalein paper. The

learned counsel for the appellant submitted that since the accused had touched the Phenolphthalein paper which had been smeared with

Phenolphthalein paper, naturally when the fingers of the accused were dipped into the solution, the solution turned into Pink. He had not received

the currency notes from P.W. 1 and that everything was done fraudulently with the help of P.Ws 2 and 11. The contention of the accused is that

P.W. 1 is known to the P.W. 11 since the former was working as Asst. Public Prosecutor at Kuzhithurai and that he had occasion to know P.W.

11, the Inspector of Police in his official work. Even though P.W. 1 has denied the suggestion, his evidence can not be accepted. P.W. 1 is not at

all a truthful witness as is evidence from his deposition. P.W. 2 being a friend of P.W. 1 was obliged to the Police in the trap and the evidence of

P.W. 2 is also not natural since he would depose that he had seen the payment of currency notes by P.W. 1 to the accused standing and hiding

himself at the outer window of the house of the accused. It is also not possible for P.W. 2 to witness the receipt of money by the accused from

P.W. 1. The other aspect that the accused did not ask P.W. 2 about his identity is strange since P.W. 2 was stranger to the accused at that time.

There is no satisfactory evidence in the alleged demand of bribe by the accused from P.W. 1 and also for the receipt of the bribe from P.W. 1.

The evidence of P.W. 11 regarding the seizure of the currency notes from P.W. 1 can not be accepted since according to the prosecution the

accused is alleged to have pointed out the currency notes on a Bench. P.W. 1 being an advocate acted in an ingenious manner for trapping the

accused in a Police case since P.W. 1 thought that the accused and Muthuraj were persons of the Municipality responsible for enhancement of tax.

P.W. 11 did not know that it was the Municipal Commissioner who is competent to increase the house tax. According to P.W. 1 everything was

an eyewash and when a question was put to him whether the Court Proceedings was also an eyewash, he replied that he did not know about it.

Such is the evidence of P.W. 1 and he was given evidence in an irresponsible manner in the lower Court, bringing the only discredit to the

proceedings of the Court, as if he is man in the world.

The next contention raised by the learned counsel for the appellant is that the sanction order is not valid since the Sanctioning Authority had not

applied his mind. P.W. 10 produced two sanction orders in this case. Ex. P. 11 is the first sanction order in which P.W. 10 had affixed his

signature on behalf of the Director of Municipalities. Subsequently, it was found out that the Director alone should affix his signature and so Ex. P.

12 sanction order was issued with the signature of the Director. In cross-examination, P.W. 10 has stated that he did not know the details of the

records contained in the file and he did not also remember that the Director had examined the materials directly. The learned counsel for the

appellant read out the entire contents of Exs. P. 11 and P. 12 and pointed out that the Director has not applied his mind and has not submitted his

grounds of satisfaction before granting the sanction for which he relied upon the decision reported in Mohd. Iqbal Ahmed Vs. State of Andhra

Pradesh, . The learned Public Prosecutor brought to my notice of recent unreported decision of the Supreme Court in Criminal Appeal No. 492 of

1990 State of Tamil Nadu Vs. Damodaran, ). This is a case filed under S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act. 1947

and S. 161 of the Indian Penal Code. It appears that a similar contention that the sanction order was not valid was raised before their Lordships of

the Supreme Court and their Lordships called for the report given by the Police to the Sanctioning Authority and found that the report of the Police

contained every detail and facts relating to the case and that the Sanctioning Authority had perused the report and that it would be sufficient

compliance of the principles of sanction. In this case also, I have called for report from the police which they have sent to the Sanctioning Authority

for sanction. The report of the Police contained almost all the details of the facts relating to the particular case. But the learned counsel for the

appellant made a distinction between the judgment rendered in Criminal Appeal No. 492 of 1990 dated 29-11-1991 : (reported in State of Tamil

Nadu Vs. Damodaran, ) by the Supreme Court and the judgment in Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, . In the judgment rendered

in Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, , their Lordships of the Supreme Court held that the Sanctioning Authority has to give his

grounds of satisfaction. It appears that this decision has not been brought to the notice of their Lordships of the Supreme Court in Criminal Appeal

No. 490 (492(?)) of 1990.

Another decision reported in Suraj Mal Vs. State (Delhi Administration), was relied upon by the learned counsel for the appellant for the

purpose to show that mere recovery of money from the accused was not sufficient. It is the case of prosecution that the alleged bribe amount was

recovered from the accused. But the explanation offered by the accused is that he had not at all received any amount as bribe from P.W. 1. The

evidence of P.W. 1 with regard to the demand and payment of gratification to the accused is not at all acceptable and in such circumstances, the

explanation offered by the accused can not be thrown away as it is reasonable and probable in the circumstances of the case. In support of this

contention the learned counsel for the appellant relied upon the judgment reported in 1991 Cri LR 65 : 1992 Cri LJ 118 (S. V. Kameswar Rao v.

State (ACP Police), Karnool Dist., Andhra Pradesh). In 1990 1 crimes 609 (State of U.P. v. Ram Asrey) their Lordship of the Supreme Court

have held that when there is no acceptable and clinching evidence to show that the accused demanded a bribe and accepted the amount as motive

or reward and the judgment of the High Court cannot be interfered with. In the circumstances, I am of the view that the prosecution has failed to

establish the case against the accused and the evidence of P.W. 1 and P.W. 2 is totally unsatisfactory and cannot be accepted at all and in the

circumstances, the conclusion arrived at by the lower Court is not correct and therefore the conviction and sentence are set aside. The accused is

acquitted and this appeal is allowed.

Appeal allowed.