S.P. Paulraj vs State

K.N. Basha, J.—The appellant, who is the sole accused, has been tried, convicted and sentenced to undergo two years rigorous

imprisonment and to pay a fine of Rs. 5,000/- carrying with the default sentence of one year rigorous imprisonment for the offence u/s 13(2) r/w

13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ""the Act"") by the learned Sessions Judge (Additional Sessions

Judge-cum-Chief Judicial Magistrate, Ramanathapuram, in C.C. No. 17 of 1997 by judgment dated 11.12.2001 has come forward with this

appeal challenging the judgment of conviction and sentence.

Charges against the accused:

The accused was working as Municipal Commissioner of Paramakudi Municipality. The charge against the accused is that on 26.10.1995 at 8.20

p.m. at his municipal quarters at Madurai-Ramanathapuram Main Road said to have demanded Rs. 10,000/- as illegal gratification from P.W.2, a

relative of P.W.4 and received a sum of Rs. 5,000/- for giving municipal drinking water connection to the house of P.W.4 and thereby committed

the offence under Sections 13(2) r/w 13(1)(d) of the Act.

The prosecution in order to bring home the charges against the accused examined P.Ws.1 to 11 marked Exs.P.1 to P.34 and M.Os.1 to 12.

Prosecution version:

(i) The report in this case is said to have been given by P.W.2 to P.W.9, the Deputy Superintendent of Police, Vigilance and Anti-Corruption, on

26.10.1995 at about 11.30 a.m. and a case was registered by P.W.9 in Crime No. 1 of 1995 for the offence u/s 7 of the Act. Ex.P.8 is the report

and Ex.P.18 is the First Information Report.

(ii) P.W.2 in this case has turned hostile and he has admitted only his signature along with two lines in the report stating that he has read the report

and the same is correct as per his statement and the same is marked as Ex.P.2 during the course of cross-examination by the prosecution. The

report said to have been given by P.W.2 was marked as Ex.P.8 through P.W.9, Deputy Superintendent of Police.

(iii) The report, Ex.P.8, discloses that P.W.4 is the brother''s wife of P.W.2 and his brother one Periasami was residing at Malaysia and as such

P.W.2 used to assist his brother''s wife. The reading of the report, Ex.P.8 discloses about submitting application for drinking water connection to

the house of P.W.4 and thereafter meeting the accused on 21.10.1995 at 10.30 a.m. for seeking the drinking water connection to the house of

P.W.4 and at that time the accused demanding a sum of Rs. 5,000/- for him and Rs. 5,000/- for office expenses. Further allegations are that

P.W.2 stated that his application is under the seniority No. 71 and for that the Commissioner (accused) replied that he is not seeing the seniority

and he can give water connection for the persons who gave the money. Again P.W.2 met the accused on 25.10.1995 along with his brother-in-

law one Rathinam in the evening at 6.30 p.m. and even at that time the accused demanded the amount and P.W.2 stated that he cannot give such a

huge amount and thereafter the accused asked P.W.2 to give at least Rs. 5,000/- for him and instructed him to come and give the said amount to

his house and as P.W.2 is not inclined to give such amount, he has preferred the present complaint, Ex.P.8.

(iv) P.W.9 on receipt of the complaint and after registration of the case, as stated above, decided to conduct trap as accepted by P.W.2 and

received Rs. 5,000/- brought by P.W.2. P.W.9 also received Ex.P.5 and Ex.P.6 letter given by P.W.2 for drinking water pipe connection and

unfilled application form respectively. Thereafter, P.W.9 demonstrated the phenolphthalein test to P.W.2 and the witnesses summoned by him,

namely, P.W.3, Assistant Executive Engineer, Electricity Board, Ramanathapuram and Excise Assistant Commissioner one Mani. P.W.9 gave the

amount of Rs. 5,000/- smeared with phenolphthalein powder to P.W.2 and instructed him to give the amount if the same is demanded by the

accused and thereafter to come out from the place of the accused and to give the pre-arranged signal by wiping his face with hand-kerchief. He

also instructed P.W.3 to accompany with P.W.2 to watch the conversation between the accused and P.W.2. In respect of the proceedings held at

the Vigilance office, P.W.9 prepared the mahazar, Ex.P.7. The raiding party, P.W.9 and others including P.Ws.2 and 3 left for Paramakudi at

5.30 p.m. and they reached there at 6.15 p.m. P.W.9 instructed P.W.2 and P.W.3 to go to the house of the accused.

(v) P.Ws.2 and 3 went inside the house of the accused and the watchman informed them that the Commissioner had not yet returned to the house

and thereafter P.Ws.2 and 3 were sitting in the nearby tea shop and found a jeep entering inside the house of the accused at 8.15 p.m. Thereafter,

P.Ws.2 and 3 went to the house of the accused after 10 minutes as per the instructions of the watchman and the accused was sitting in front of the

house inside the compound in a chair. The accused questioned P.W.2 about the identity of P.W.3, for that P.W.2 informed him that P.W.3 is his

relative. P.W.2 further stated to the accused that he is running for pipe connection for the party who is now at Malaysia, for that the accused stated

that the pipe connection will be given shortly. Thereafter, the accused put his left hand on the chair and pressed his five fingers also nodded his

head. P.W.2 took out the currency notes from his pant pocket and handed over to the accused. The accused received the amount along with

Exs.P.5 and P.6 from PW.2 and returned Ex.P.6. The accused kept the amount in Ex.P.5. Thereafter, P.Ws.2 and 3 came out of the house of the

accused at 7.55 p.m. and P.W.2 gave the pre-arranged signal by wiping his face with his hand-kerchief.

(vi) The raiding party, P.W.9 and others came inside the house of the accused. P.W.9 introduced himself and others to the accused and at that

time the accused was found perturbed. P.W.9 questioned the accused about receiving the amount from P.W.2. The accused admitted the receipt

of the amount from P.W.2. Thereafter, P.W.9 conducted phenolphthalein test and when the hands of the accused were dipped into the solution, it

turned into light pink colour. He put the solution in respect of two hands in the bottles, M.Os.1 and 2 and sealed the same and also obtained the

signature of the accused. Thereafter, the accused took P.W.9 inside the bed room of his house and took out the amount kept in between the

ironed shirt and pant. The currency notes were compared with the mahazar by P.W.3 and found to be tallied. P.W.9 also seized the shirt and pant

in between which the money was kept by the accused and subjected them to phenolphthalein test, which proved positive. The said solutions were

taken in two bottles, namely, M.Os.3 and 4. Thereafter, he searched the house of the accused. The accused produced Rs. 11,900/- from a suit

case, M.O.8 and the amount was also marked as M.O.9 series. Rs. 70,000/- also recovered from the house of the accused under M.O.10 series

from a yellow bag, M.O.11. Ex.P.10 is the search list. No incriminating materials was seized from the house of the accused. P.W.9 arrested the

accused at 10.30 p.m. and thereafter, prepared the mahazar, Ex.P.9 in respect of the trap proceedings conducted at the house of the accused.

(vii) P.W.10 stated about the the Deputy Superintendent of Police, Sivangangai Vigilance and Anti-Corruption conducting further investigation and

he has been asked to assist the Deputy Superintendent of Police for investigation. P.W.10 stated that P.W.2 was examined by the police on

27.10.1995 and 08.11.1995 and other witnesses were also examined and their statements were also recorded .

(viii) P.W.11, Thangapandian, took up further investigation and he, after completing the investigation and obtaining sanction order from P.W.1

under Ex.P.1 and examining P.W.1 and recording her statement on 30.06.1997, filed the charge sheet against the accused on the same day for the

offence u/s 7 and 13(1)(d) of the Act.

When the accused was questioned u/s 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced

by the prosecution, the accused has denied the same as contrary to the facts and stated that he has been falsely implicated in the case and he has

not chosen to examine any witness on his side.

Mr. N.R. Chandran, learned senior Counsel appearing for the appellant vehemently contended that the prosecution has miserably failed to

prove its case beyond reasonable doubt by adducing clear and consistent evidence and put forward the following contentions:

(1) There was total non-application of mind on the part of the sanctioning authority while granting sanction under Ex.P.1 as the sanction order,

Ex.P.1 does not disclose any reason for granting sanction and as such the entire proceedings is vitiated.

(2) P.W.2, who is the main witness and who has given complaint in this case, has turned hostile and not supported the prosecution case and he has

even disowned the contents of the report, Ex.P.8 except admitting the two lines to the effect that he has read the report and the same is correct as

per his statement and his signature marked as Ex.P.2 and further stated categorically that the signature was obtained by the prosecution in blank

papers which was misused in this case and therefore, the prosecution version is highly doubtful and unacceptable.

(3) P.W.4, the owner of the house on whose behalf P.W.2 said to have been acted by giving application for drinking water connection, turned

hostile and as such the entire prosecution case has become doubtful.

(4) As P.Ws.2 and 4 turned hostile, the prosecution has failed to prove the alleged demand of illegal gratification made by the accused prior to trap

and on the date of trap and as such the entire prosecution version is liable to be rejected.

(5) The evidence of trap witness, P.W.3, suffers from several infirmities and the prosecution also not proved the demand through the evidence of

P.W.3 as P.W.3 categorically admitted in his cross-examination that the accused has not demanded any illegal gratification by expressing words

and it is stated by P.W.3 that he has presumed through the gestures of the accused as the accused demanded the bribe amount by putting his left

hand on the chair and pressing his fingers and nodded his head which version is highly improbable and unacceptable.

(6) There are serious doubts about the manner in which the trap proceedings conducted by P.W.9, namely, (i) Ex.P.5, in which the bribe amount

was kept by the accused, was not subjected to phenolphthalein test ; (ii) the currency notes, M.O.5 series, said to have been recovered from the

accused was not sent for chemical examination to prove that the currency notes recovered from the accused is one and the same in which

phenolphthalein powder was smeared ; and (iii) M.Os.6 and 7, shirt and pant which were recovered to establish that the tainted currency notes,

M.O.5 series, were kept by the accused in between the shirt and pant were not sent for chemical examination.

(7) The mere recovery of money, M.O.5 series, from the accused itself is not sufficient to prove the case in the absence of proof of demand as the

prosecution has failed to prove the demand of illegal gratification said to have been made by the accused.

(8) Even the prosecution cannot place reliance on the provision u/s 20 of the Act contemplating presumption as the said provision is not applicable

to the offence u/s 13(2) r/w 13(1)(d) of the Act and as such the prosecution has to discharge its burden of alleged demand of bribe and alleged

receipt from P.W.2 by the accused in pursuant of the demand of illegal gratification made by the accused.

The learned senior Counsel would also place reliance on the following decisions in support of his contentions:

(1) Venkata Subba Rao v. State 2007 (3) SCC (Cri.) 175;

(2) Subash Parbat Sonvane v. State of Gujarat 2002 SCC (Cri.) 954;

(3) Meena v. State of Maharashtra 2000 SCC (Cri.) 878;

(4) Suraj Mal Vs. State (Delhi Administration), ; and

(5) unreported judgment of this Court in C.A.No.96 of 2003 dated 30.10.2007

Per contra, learned Government Advocate (Crl. Side) contended that the prosecution has proved its case by adducing clear and cogent

evidence. It is submitted that though P.W.2 has turned hostile, the prosecution proved the alleged demand of illegal gratification and the receipt of

bribe amount, M.O.5, by the accused through the evidence of P.W.3. The version of P.W.3 is corroborated by the version of P.W.9, Deputy

Superintendent of Police, in view of the recovery of M.O.5, currency notes on the basis of the trap conducted by P.W.9. Though the presumption

Clause u/s 20 of the Act is not applicable to the charges framed against the accused for the offence u/s 13(1)(d) r/w 13(2) of the Act, the

prosecution has established its case of demand of illegal gratification and receipt of the amount by recovering the currency notes, M.O.5, pursuant

to the positive proof of the phenolphthalein test. It is contended that there is no infirmity and inconsistency between the evidence of the witnesses

and as such the prosecution established its case in all aspects beyond reasonable doubt against the accused.

I have carefully considered the rival contentions put forward by either side and also thoroughly scanned through the entire evidence available on

record and perused the impugned judgment of conviction.

The prosecution version is mainly based on the evidence of P.Ws.2, 3, 4 and 9. P.W.2 is the de-facto complainant on whose complaint the

entire criminal proceedings said to have been initiated. He is the star witness to speak about the demand of illegal gratification said to have been

made by the accused prior to the trap and on the date of trap, i.e., on 26.10.1995. It is the earlier version of P.W.2 that he was assisting P.W.4 as

her husband one Periasami, his brother, was out of India and he was residing at Malaysia and he gave application for drinking water connection to

the house of P.W.4. It is his further earlier version that the accused demanded Rs. 10,000/- for effecting drinking water pipe connection to the

house of P.W.4 prior to the trap and on the date of trap, i.e., on 26.10.1995 in pursuant to such demand, the accused received the amount from

him. Now the fact remains that P.W.2 has given a total go-by to his earlier version and he has not supported the case of the prosecution except

admitting his signature and two lines written above his signature to the effect that he has read the report and the same is correct as per his statement

which was marked as Ex.P.2. It is pertinent to be noted that the prosecution version in respect of the demand of illegal gratification made by the

accused prior to the trap is solely rests on the evidence of P.W.2 and his alleged report which was marked as Ex.P.8 through the Deputy

Superintendent of Police, P.W.9.

Demand of illegal gratification made by the accused prior to the trap not proved:

As already pointed out, the prosecution version in respect of the demand of illegal gratification made by the accused prior to the trap is solely rest

on the evidence of P.W.2 and his report, Ex.P.8 which was marked through the Deputy Superintendent of Police, P.W.9. The fact remains, as

already pointed out, P.W.2 has turned hostile and he disowned the contents of the report, Ex.P.8 except admitting his signature and above the

signature two lines written to the effect that he has read the report and the same is correct as per his statement, which was marked as Ex.P.2. It is

well-settled by a catena of decisions of the Hon''ble Apex Court that the evidence of a hostile witness cannot be rejected in toto and any portion

either in favour of the prosecution or in favour of the defence can very well be placed reliance.

In the light of the said principle laid down by the Hon''ble Apex Court, let me now scrutinize and analyse the evidence of P.W.2.

It is the categorical version of P.W.2 as per the cross-examination of the defence to the effect that he has written that he has read the report

and the same is correct as per his statement and put his signature which was marked as Ex.P.2 only at the instance of one police Head Constable,

Lurthu. At that time in that paper nothing was written and it was a blank paper. Therefore, it is crystal clear that P.W.2 has not whispered a word

before the Court about the demand of illegal gratification said to have been made by the accused and also he gave an explanation in respect of his

signature found in Ex.P.8 with his handwriting to the effect that he has read the report and the same is correct as that of his statement.

Now the prosecution case is entirely left with the contents of the report, Ex.P.8 in respect of the alleged demand of illegal gratification said to

have been made by the accused prior to the trap. As far as Ex.P.8, the report marked through the Deputy Superintendent of Police, P.W.9 as

P.W.2, the author of the report disowned its contents, is concerned, a perusal of the report, Ex.P.8 revealed to the naked eye that the two lines

said to have been written by P.W.2 and signed by him is in different handwriting and in different ink than that of the writing of the contents of the

report, Ex.P.8. Added to this infirmity, it is pertinent to be noted that there are contradictory versions in respect of the manner in which the report,

Ex.P.8 said to have been received or recorded and thereafter registered. P.W.9 has categorically stated in his chief examination that he has

received the report from P.W.2 on 26.10.1995 at about 11.30 a.m. But in the cross-examination he has stated that it took 45 minutes for

recording the report, Ex.P.8 from P.W.2.

Yet another important aspect cannot be brushed aside lightly by this Court is that the perusal of the report, Ex.P.8 discloses that even at the

beginning it is stated as a written report and at the end of the report, it was recorded by P.W.9, the Deputy Superintendent of Police, that he has

received the complaint and registered a case and as such it is crystal clear that by no stretch of imagination it could be stated that the report, Ex.P.8

is recorded by P.W.9, Deputy Superintendent of Police. The inconsistent version of P.W.9 in respect of the manner under which the report,

Ex.P.8 received or recorded from P.W.2 coupled with the fact that in Ex.P.2 the last two lines and signature were said to have been admittedly

written by P.W.2 is in different ink and further P.W.2 stated that he has written and signed the same in a blank paper and further a perusal of the

report, Ex.P.8 discloses that the said two lines were written by P.W.2 and signature were under the bottom of that particular page of the report,

Ex.P.8 were in a congested manner. Apart from the above said infirmities, it is also pertinent to be noted as already pointed out, if a written report

is received, the question of incorporating two lines said to have been written by P.W.2 to the effect that he has read the report and the same is

found to be correct as per his statement not at all arises. Therefore, all these infirmities, inconsistencies and improbabilities throw a considerable

doubt about the genuineness of Ex.P.8 and about the veracity of the prosecution version.

It is pertinent to be noted that P.W.4, the owner of the house, also turned hostile. Therefore, there is not an iota of evidence to show that the

accused demanded any illegal gratification from P.W.2 prior to the trap and as such, this Court has no hesitation to hold that the prosecution has

miserably failed to prove the alleged demand said to have been made by the accused prior to the trap.

Demand of illegal gratification said to have been made by the accused at the time of trap not proved:

As P.W.2 has turned hostile, the prosecution version in respect of the alleged demand of illegal gratification said to have been made by the accused

at the time of trap is left with the sole and solitary testimony of P.W.3, trap witness. Before proceeding to consider the evidence of P.W.3, it is to

be borne in mind that the Hon''ble Apex Court in Som Parkash Vs. State of Punjab, has held that witnesses forming part of the raiding party are

not independent witnesses. Therefore, their evidence has to be considered like any other witnesses in the light of the other materials and the

cumulative circumstances available on record.

It is the version of P.W.3 that he was directed by P.W.9, Deputy Superintendent of Police to accompany P.W.2 at the time of meeting the

accused and to watch the conversation between them. It is further stated by P.W.3 that he along with P.W.2 left for Paramakudi to meet the

accused in his residence from Ramanathapuram Vigilance and Anti-Corruption Office at 5.30 p.m. and reached Ramanathapuram at 6.15 p.m.

Thereafter, he along with P.W.2 went inside the house of the accused and the watchman told them that the Commissioner has not yet come and as

such they were sitting and chatting in a nearby tea shop and at about 8.15 p.m., the jeep of the accused entered inside his house and on their

enquiry, the watchman asked them to go inside the house after 10 minutes. Thereafter, they went inside the house and found the accused sitting on

the chair in front of the house inside the compound. The accused questioned P.W.2 whether P.W.3 is the party and for that P.W.2 introduced him

to the accused as his relative. The accused told P.W.2 that connection will be given shortly. The accused further put his left hand on the chair and

pressed his five fingers and mildly nodded his head. Thereafter, P.W.2 presuming that the accused demanding the amount gave the amount to the

accused and Exs.P.5 and P.6 and the accused returned Ex.P.6 and kept the amount in Ex.P.5. Thereafter, P.W.2 came outside the house and

gave the pre-arranged signal to the raiding party, police officials. It is categorically admitted by P.W.3 in his cross-examination that the accused has

not demanded any amount for water pipe connection in words and as per the gestures of the accused, they have presumed that the accused was

demanding money. Therefore, on the basis of the evidence of P.W.3, by no stretch of imagination, it could be stated that the accused demanded

the illegal gratification from P.W.2 at the time of trap and as such the prosecution has also miserably failed to prove its version of the alleged

demand of illegal gratification said to have been made by the accused even at the time of trap.

Mere proof of receipt of money by accused in the absence of proof of demand of illegal gratification is not sufficient to prove the guilt of the

accused:

At the risk of repetition, it is to be re-iterated that the prosecution has miserably failed to prove the alleged demand of illegal gratification said to

have been made by the accused prior to the trap and even on the trap. At this juncture, it is relevant to refer the decisions of the Hon''ble Apex

Court on this aspect.

At the outset, it is to be stated that it is well settled by a catena of decisions of the Hon''ble Apex Court that mere proof of receipt of money by

an accused in the absence of proof of demand and acceptance of money as illegal gratification will not be sufficient to establish the guilt of the

accused in a corruption case. The Hon''ble Apex Court has held in T. Subramanian v. State of Tamil Nadu reported in 2006 (1) SCC (Cri.) 401

that,

Mere proof of receipt of money by accused, in absence of proof of demand and acceptance of money as illegal gratification, not sufficient to

establish guilt of accused - If accused offers reasonable and probable explanation based on evidence that the money was accepted by him, other

than as an illegal gratification, accused would be entitled to acquittal.

In Union of India (UOI) thr. Inspector, CBI Vs. Purnandu Biswas, , the Hon''ble Apex Court has held that in the absence of proof of demand,

the proof of receipt and recovery of the amount is not sufficient to establish the guilt of the accused.

In the very same decision it was held that the presumption contemplated u/s 20 is not applicable to the offence under Sections 13(1)(d) r/w

13(2) of the Act. Section 20 of the Prevention of Corruption Act, 1988 reads as under :

Presumption where public servant accepts gratification other than legal remuneration-

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

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

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

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

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

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

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

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

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

inadequate.

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

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

But in the instant case as held by the Hon''ble Apex Court as the offences are u/s 13(1)(d) r/w 13(2) of the Act, the provision u/s 20 of the Act

is not attracted. Therefore, there is onerous burden on the part of the prosecution to establish its case beyond reasonable doubt to the effect that

the accused demanded and received the illegal gratification in the absence of presumption u/s 20 of the Act as the same is not applicable to the

offences u/s 13(1)(d) r/w 13(2) of the Act.

Even in a case where the presumption u/s 20 of the Act is attracted, the Hon''ble Apex Court in Venkatasubba Rao v. State reported in 2007

(3) SCC (Cri.) 175 has held that,

...In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption

Act, 1988 provides for raising of a presumption only if a demand is proved....

Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by

the prosecution.

Doubts, illegalities and improbabilities in respect of the trap proceedings:

In the instant case the prosecution has not only miserably failed to prove the demand of illegal gratification said to have been made by the accused

at the time of trap and the trap proceedings conducted by P.W.9, Deputy Superintendent of Police leading to the recovery of the tainted money of

Rs. 5,000/-, M.O.5 series, but also the alleged receipt of the bribe amount of Rs. 5,000/-, M.O.5 series, by the accused and also the recovery are

highly doubtful as the prosecution version in respect of the trap proceedings conducted by P.W.9, Deputy Superintendent of Police, bristled with

suspicious circumstances, infirmities and improbabilities. This Court is constrained to point out the serious infirmities and inherent improbabilities in

the trap proceedings as hereunder:

(1) It is the version of P.Ws.3 and 9 that the raiding party reached the house of the accused at Paramakudi at 6.15 p.m. and thereafter, P.Ws.2

and 3 went inside the house of the accused and after handing over the amount, P.Ws.2 and 3 came out of the house at 7.55 p.m., as per the chief

examination of P.W.9 and subsequently, altered the time in further chief examination as at 8.25 p.m. In the chief examination, there is no

explanation from P.W.9 as to why there is delay in coming out and giving the pre-arranged signal at 7.55 p.m. or 8.25 p.m.

(2) P.W.9, in his cross-examination, stated that the accused came to his house at 8.15 p.m. and till such time, P.Ws.2 and 3 have not come back

to him and further the version of P.W.3 that he along with P.W.2, till the arrival of the accused at 8.15 p.m., was sitting and chatting at the nearby

tea stall is doubtful and if such version is true they could have went and informed P.W.9 about the non-availability of the accused while they went

inside the house of the accused at 6.15 p.m.

(3) P.W.9 curiously stated that P.Ws.2 and 3 were roaming around the tea shop from 6.30 p.m. to till the arrival of the accused at 8.15 p.m and

he has not whispered a word about P.Ws.2 and 3 were sitting and chatting in the tea shop. It is further curiously stated by P.W.9 that he was not

aware about the time of P.Ws.2 and 3 entering inside the house of the accused;

(4) P.W.9 stated that no one was available at the house of the accused at the time of trap including the driver or the watchman. But P.W.3 stated

that at the time of arrival of the accused, the watchman was present at the house of the accused and only after informing the watchman they went

inside the house of the accused.

(5) The version of P.W.3 is that he along with P.W.2 was chatting with the accused for 10 minutes while the accused was sitting in front of the

house inside the compound and thereafter, P.W.2 paid the amount to the accused and came out of the house of the accused and gave the pre-

arranged signal and within two minutes the raiding party entered inside the house of the accused and as such it is highly improbable for the accused

to go inside the house and keep the amount in between the shirt and pant of the bureau kept inside the bed room within a short span of time of two

minutes as P.W.9 and others immediately rushed inside the house of the accused after pre-arranged signal, as stated above.

(6) It is the version of P.W.3 that the accused, on receipt of the amount of Rs. 5,000/- from P.W.2, kept the amount in Ex.P.5 and admittedly

P.W.9 said to have recovered the currency notes, M.O.5 series and also Ex.P.5. But the fact remains that Ex.P.5 was not subjected to

phenolphthalein test.

Therefore, the entire trap proceedings bristled with suspicious circumstances, doubts and improbabilities.

At this juncture, it is relevant to refer the decisions of the Hon''ble Apex Court on this aspect. The Hon''ble Apex Court in Suraj Mal Vs. State

(Delhi Administration), has held that,

In a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when

the substantive evidence in the case is not reliable.

In Union of India (UOI) thr. Inspector, CBI Vs. Purnandu Biswas, , the Hon''ble Apex Court has confirmed the judgment of acquittal passed

by the High Court on the ground that absence of proof of demand and doubts and improbabilities in the prosecution version as to trap.

The Hon''ble Apex Court in Venkatasubba Rao v. State reported in 2007 (3) SCC (Cri.) 175 has also disbelieved the prosecution version in

view of the illegalities in the trap proceedings holding that the manner in which the trap proceedings were undertaken is questionable and ultimately

set aside the impugned judgment of conviction and sentence passed by the High Court.

In view of the above settled principle of law and in view of the entire trap proceedings bristled with suspicious circumstances, doubts and

improbabilities, this Court has no hesitation to hold that the prosecution has not discharged its burden to prove its case against the

accused/appellant beyond reasonable doubt.

It is relevant to note that P.W.9, Deputy Superintendent of Police, also made a vain attempt to raise suspicion against the accused by stating

that at the time of introducing himself and other members of the raiding party, the accused has become perturbed. It is well-settled that suspicion

however strong cannot be substituted by legal proof. It is pertinent to be noted that on the other hand P.W.3, the trap witness, has not stated that

the accused was perturbed at that time. The Hon''ble Apex Court in Sat Paul Vs. Delhi Administration, has held that,

...It would not be unusual even for an honest officer to be frightened out of wits on being suddenly accused of bribe-taking by a superior

officer.

Therefore, even assuming that the accused was perturbed at the time of trap, no adverse inference could be drawn against the accused on such

conduct.

For the aforesaid reasons, this Court has no hesitation to hold that the prosecution has miserably failed to prove the charges against the

accused/appellant in this case beyond reasonable doubt and as such the irresistible and inevitable conclusion of this Court is that the impugned

judgment of conviction and sentence is unsustainable in law. Accordingly, this appeal is allowed and the conviction and sentence imposed on the

appellant by the learned Additional District Judge-cum-Chief Judicial Magistrate, Ramanathapuram, in C.C. No. 17 of 1997 dated 11.12.2001

are hereby set aside. Bail bonds executed by the appellant shall stand cancelled. Fine amount paid, if any, is directed to be refunded to the

appellant.