State vs S.Bose & Anr.

The appellants 1 & 2 were tried before the learned Assistant and Sessions Judge-cum-Chief Judicial Magistrate, Nagapattinam on the allegation

that on 5.4.2002, at about 3.15 p.m., first respondent who was working as sub inspector of survey received illegal gratification of Rs.500/-

through the second respondent from the defacto complainant. The first respondent was charged for the offence under Section 7 of the Prevention

of Corruption Act, while the second respondent was charged for the offence under Section 7 of the Prevention of Corruption Act r/w Section 34

of IPC and both the respondents were tried for the offence under Section 13(1)(e) r/w Section 13 (2) of the Prevention of Corruption Act. The

Trial Court found that the prosecution has not proved its case beyond reasonable doubt and therefore, giving the benefit of doubt to both the

respondents and they were acquitted from the charges. Aggrieved against the judgment of the Trial Court, the State has preferred the present

appeal.

The facts necessary to dispose of the appeals are as follows :-

The first respondent was working as sub inspector of survey in mannargudi town and the second respondent was working as field assistant, both

the respondents are public servants as defined under section 2(c) of Prevention of Corruption Act 1998. The defacto complainant has applied for

patta. The first respondent has to survey the land of PW-2 and send a report to the Tahsildar, Mannargudi for issuing patta, for which the first

respondent/A-1 is said to have demanded Rs.700/- from PW-2/complainant. As the complainant/PW- 2 was not interested or willing to give the

bribe, he preferred a complaint before the Inspector of Police, Vigilance and Anti-Corruption, Nagapattinam. The Inspector of Police registered a

case in Cr.No.1 of 2002 on the file of the Superintendent of Police, Anti Corruption wing, Nagapattinam and took up the case for investigation.

The Inspector of police arranged for a trap. As per the instructions of the Deputy Superintendent of Police, Vigilance and Anti-Corruption

Department, Nagapattinam, PW-2 had gone to the office of the Superintendent of Police, Vigilance and Anti Corruption office, Nagapattinam with

Rs.700/- where he was demonstrated the pre-trap proceedings by the Vigilance and Anti-Corruption Department Officials. On 5.4.2002 at about

3.15 p.m., as per the instructions of the Vigilance and Anti- Corruption Department Officials, the defacto complainant went to the office of the first

respondent along with PW3 where first respondent demanded money from PW1. As per the instruction of first respondent PW2 gave Rs.500/- to

2nd respondent and he also received the amount from PW2 for and on behalf of first respondent, wrapped the currency notes in a piece of paper

and kept it in a register then PW2 came out of the office of the first respondent and gave the pre-arranged signal to the Officals of the Vigilance

and Anti-Corruption team. On notice of the said signal, the trap laying officer with his team entered into the office of the first respondent and

recovered the money. They also prepared mahazar and subsequently trap laying officer entrusted the case for further investigation.

After completing the investigation, charge sheet was filed against the respondents and the same was taken on file in CC.No.4 of 2003 on the file

of the Chief Judicial Magistrate, Nagapattinam and after serving the copies to the respondents, the charges were framed against therespondents.

In order to bring home the charge against the respondents accused, the prosecution examined PW.s 1 to 16 and marked Exs.P-1 to P-17 and

M.O.s 1 to 5. On the side of the defence, no witness was examined and only Exs.D1 and D2 were marked.

The respondents were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them. They denied all the

incriminating circumstances. They did not examine any witness on their side.

Though the charges were framed against first respondent under Section 7 of the Prevention of Corruption Act and against second respondent

under Section 7 of the Prevention of Corruption Act r/w Section 34 of IPC, the Trial Court, not found guilt over the respondents, acquitted the

respondents on the ground that the prosecution failed to prove its case beyond reasonable doubt and giving the benefit of doubt. Aggrieved by the

said order, the present appeal has been filed by the State.

Heard Mr.R.Ravichandran, learned Government Advocate (criminal side) for the appellant/complainant and Mr.S.Srinivasan, learned counsel

for the respondents/A-1 and A-2.

The learned counsel for the appellant/prosecution contended that the respondents/A1 demanded money from the defacto complainant/PW-2 for

sending report to the Tahsildar, Mannargudi. The first respondent demanded a sum of Rs.700/- from P.W.2. As PW2 was not interested in giving

the bribe he made a complaint before the Inspector of Police, Vigilance and Anti-Corruption, Nagapattinam. A case was registered in Crime No.1

of 2002 on the file of the Superintendent of Police, Vigilance and Anti-Corruption wing, Nagapattinam.

On 5.4.2002 at about 3.15 p.m., as per the instructions of the officials of Vigilance and Anti-Corruption, Nagapattinam, the defacto

complainant went to the office of the first respondent where he demanded and accepted a sum of Rs.500/- as bribe through second respondent.

Later the Trap Laying Officer came to scene of occurrence after noting prearranged signal from PW2 and recovered the money. PW3 who

accompanied with PW2 has corroborated the same. The learned counsel further contended that the materials on record, including the

phenolphthalein test conclusively proved that the respondents received the bribe from P.W.2. However, the trial court failed to consider the said

materials and merely because the recovery of money was made only from the table of the first respondent/A-1 and not from first respondent and

also the fact that the demand of money was not proved, acquitted the respondents. It is therefore contended that the acquittal order of the trial

court has to be set aside.

The learned counsel for the respondents 1 and 2 submitted that the PW2/defacto complainant who preferred complaint has not supported the

case of the prosecution. It is further submitted that the demand was not proved and recovery also not made from the respondents/A-1 and A-2.

According to PW2, they have recovered the money only from the register which was kept on the table of the first respondent. Further, it is a

settled law that in the bribe cases, the amount has to be recovered from the accused. However, in the case on hand, the recovery is said to have

been made from the register which was kept on the table of the first respondent. The placing of money on the table by the defacto complainant

leading to the ultimate recovery from the said place cannot be held against the respondents to find them guilty of the offence of acceptance of illegal

gratification. Even PW-1 has deposed that the first respondent/A-1 has not demanded money. The Trial Court has considered the evidence on

record in proper perspective and has acquitted the respondents, therefore, the finding of the trial Court does not warrant any interference.

Considered the rival submissions made on either side.

This Court has considered the entire facts and circumstances of the case and also the oral and documentary evidence adduced by the

prosecution and also the arguments advanced by both the learned counsel and also the judgment of the learned Trial Judge. As the first appellate

Court is the fact finding Court, this Court has independently considered the case and arrived at the conclusion.

In this case, it is worthwhile to refer the deposition of PW-2. PW-2 is the de facto complainant who made the complaint/Ex.P3 and at his

instance only the Vigilance and Anti-Corruption Officials have initiated a trap. Whereas before this Court, he has not supported the case of the

prosecution. He deposed that he went to the office of the first respondent/A-1, who was the sub inspector of Survey. At the relevant point of time,

the first respondent/A1 was the sub inspector of survey in the concerned jurisdiction and therefore, he went and approached the first

respondent/A1. When PW2 contacted first respondent/A1 he told that due to workload he could not send report to the Tahsildar immediately and

that was the reason for the delay. When he asked the other Surveyor, he only suggested him that if he preferred a complaint against first

respondent before the Vigilance and Anti-corruption police immediately without any delay he would get the patta. Accordingly, PW2/defacto

complainant made a complaint before office of the Vigilance and Anti-Corruption, Nagapattinam. Where they registered a case and arranged for a

trap. As per the instructions of the Deputy Superintendent of Police, Vigilance and Anti-Corruption, Nagapattinam, PW-2 gone to the office of the

Vigilance and Anti Corruption Office Nagapattinam on 05.04.2002 with Rs.700/- where he was demonstrated the trap proceedings by the

Vigilance and Anti- Corruption Department Officials and on the same day at about 3.15p.m., as per the instructions of the Vigilance and Anti-

Corruption police Officials, the defacto complainant went to the office of the first respondent and he kept Rs.500/- on the table of the first

respondent and came out of the office and gave prearranged signal to the Officials of the Vigilance and Anti-Corruption police. Later the Trap

Laying Officer came to scene and also recovered the money from the register which was kept on the table of the first respondent.

PW-2, being the only eye-witness to the occurrence and also being the defacto complainant under whose instance trap proceedings was

arranged has not supported the case of the prosecution. Hence, the prosecution has not substantiated the charges against the respondents/A1 and

A2 before the Trial Court. Therefore, under these circumstances, the trial Court has acquitted the respondents/accused.

The learned counsel for the respondents 1 and 2 placed reliance on the judgment of the Hon''ble Supreme Court in V.Sejappa vs. State by

Police Inspector Lokayukta, Chitradurga [AIR 2016 SC 2045], the relevant paragraphs 20 and 21 are extracted hereunder:-

While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal grati

fication and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to the following

observation in Mukut Bihari v. State of Rajasthan [Mukut Bihari v. State of Rajasthan, (2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1

SCC (L&S) 136], wherein it was held as under: (SCC pp. 645-46, para 11)

The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere

recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence

to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to

fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on

the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or

circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in

Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the

accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.

However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must

be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence

must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration

before convicting the accused person.

If the evaluation of the evidence and the findings recorded by the trial court do not suffer from any illegality or perversity and the grounds on

which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view

is possible. Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view,

interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State v. K. Narasimhachary

[State v. K. Narasimhachary, (2005) 8 SCC 364 : (2006) 1 SCC (Cri) 41] , this Court reiterated the well-settled principle that if two views are

possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an

inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. The same view was

reiterated in T. Subramanian v. State of T.N. [T. Subramanian v. State of T.N., (2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401].

It is pertinent to point out here that the acid test, which is required in trap cases of receipt of illegal gratification is the phenolphthalein test. In

the present case, the money, said to have been recovered from a register which was kept on the table of the first respondent, gave a positive

reaction to phenolphthalein. However, the officials of the Vigilance and Anti Corruption have not made any effort to find out whether the hands of

the first respondents/accused showed positive reaction for phenolphthalein. Without there being conclusive proof of positive reaction in the hands

of the first respondent for phenolphthalein, the respondent cannot be held responsible for the money that was recovered from the table of the first

respondent. Even P.W.2 has spoken that he gave the money to the second respondent, after receiving money from him and inturn the second

respondent kept the money in the register which was kept on the table of the first respondent. It cannot be inferred that the money, that was kept

on the table of the first respondent was for the purpose of giving the same as illegal gratification to the first respondent. Without there being

documentary evidence to prove that the money, that was placed on the table of first respondent was towards illegal gratification to first respondent

and there being no proof that first respondent received the money, the prosecution has miserably failed to bring home the charge against first

respondent. The decision in Sejappa''s case (cited supra) relied on by the learned counsel for the respondents is squarely applicable to the facts of

the present case.

Similarly, the charge against second respondent under Section 7 of the Prevention of Corruption Act r/w Section 34 of IPC cannot be

sustained, in the absence of proof of demand, acceptance and recovery directly from the respondents. Mere oral evidence stating that the

respondents had asked for illegal gratification for which the trap was set through the officials of Vigilance and Anti Corruption in the absence of

documentary evidence coupled with ocular testimony, the respondents cannot be held guilty of either receiving illegal gratification or for second

respondent having channelised the bribe to first respondent.

At this juncture, it is pertinent to refer the decision of the Hon''ble Apex Court in the case of Mukhtiar Singh (since deceased) through his LRs

v. State of Punjab reported in JT 2017 (7) SC 257, the relevant paragraph is extracted hereunder :-

The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now

engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala [JT 2009 (8) SC 415], this Court propounded that the

prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal

gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in

State of Kerala vs. C.P. Rao [JT 2011 (3) SC 641] that mere recovery by itself of the amount said to have been paid by way of illegal gratification

would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had

voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

Further, it is worthwhile to refer yet another judgment of the Hon''ble Apex Court in the case of Khekh Ram V. State of H.P. reported in JT

2017 (11) SC 138, the relevant paragraph is reproduced hereunder :-

The elaboration of the facts in the decisions cited at the Bar has been to underline the factual setting in which reversal of the orders of acquittal

had been interfered with by this Court. Though it is no longer res integra that an order of acquittal, if appealed against, ought not to be lightly

interfered with, it is trite as well that the Appellate Court is fully empowered to review, reappreciate and reconsider the evidence on record and to

reach its own conclusions both on questions of fact and on law. As a corollary, the Appellate Court would be within its jurisdiction and authority to

dislodge an acquittal on sound, cogent and persuasive reasons based on the recorded facts and the law applicable. If only when the view taken by

the Trial Court in ordering acquittal is an equally plausible and reasonable one that the Appellate Court would not readily substitute the same by

another view available to it, on its independent appraisal of the materials on record. This legally acknowledged restraint on the power of the

Appellate Court would get attracted only if the two views are equally plausible and reasonable and not otherwise. If the view taken by the Trial

Court is a possible but not a reasonable one when tested on the evidence on record and the legal principles applied, unquestionably it can and

ought to be displaced by a plausible and reasonable view by the Appellate Court in furtherance of the ultimate cause of justice. Though no innocent

ought to be punished, it is equally imperative that a guilty ought not to be let of casually lest justice is a casualty.

It is the cardinal principle in bribe cases is that it is for the prosecution to prove demand and acceptance beyond reasonable doubt. In the case

on hand, neither the documentary evidence nor the ocular testimony supports the case projected by the prosecution. When the Trial Court has

acquitted the respondents on the ground that the demand of bribe has not been proved beyond reasonable doubt and extended the benefit of

doubt to the respondents, in the absence of the prosecution substantiating the contention through requisite evidence before this Court, this Court

cannot find any error in the judgment passed by the trial court acquitting the respondents.

For the reasons aforesaid, the judgment of acquittal passed by the Trial Court is confirmed and the appeal is dismissed.