State by Public Prosecutor, Madras vs Duraisami

M. Karpagavinayagam, J.—This appeal by State is directed against the judgment made in S.C. No. 109 of 1989 on the file of the Chief

Judicial Magistrate, Erode, seeking to set aside the order of acquittal and praying to convict the respondent/accused for the offences u/s 161

I.P.C. and Section 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ''the Act'' ).

According to the prosecution, Mr. Doraisamy, Assistant Executive Engineer, Public Works Department, Kangeyarn, Periyar District, demanded

and obtained a total sum of Rs. 1500/- in three installments of Rs. 500/- each on 26.2.1988, 14.3.1988 and 16.3.1988 from M. Govindasamy

(P.W.1) of Pappavalasu, Anjur Village, Karur Taluk, for making available more water in the LBP Canal for the tail-end farmers of that village.

According to the accused, the respondent herein, he received Rs. 500/- only on 16.3.1988 from P.W.1 towards the amount payable by him for

purchase of two Indira Vikas Patras of the Value of Rs. 250/- each.

During the trial, P. Ws.1 to 10 were examined on the side of the Prosecution and Exs.P1 to P16 were marked. On the side of the defence, D.

Ws.1 and 2 were examined and Exs. D1 to D3 were marked.

The trial Court, on consideration of the materials, rejected the case of the prosecution and accepted the case of the defence and thereby, the

accused was acquitted. Hence, this appeal by the State.

Mr. Karthikeyan, the learned Government Advocate representing Public Prosecutor an appeal against acquittal. Though the appellate Court is

entitled to re-appreciate the entire evidence in an appeal against acquittal, this Court would not interfere with the order of acquittal, unless the

findings of the trial court are perverse.

The mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the

evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal, unless it comes to the conclusion that the entire

approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable.

While sitting in judgment over an acquittal, the appellate Court is first required to seek an answer to the question whether the findings of the trial

Court are palpably wrong, manifestly erroneous or demonstrably unsustainable.

If the appellate Court answers the above questions in the negative, the order of acquittal is not to be disturbed. Conversely, if the appellate

Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then--and

then--only reappraise the evidence to arrive at its own conclusions.

Although the powers of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order

of conviction yet, as a rule of prudence, the High court should always give proper weight and consideration to matters like the following:

(i) the views of the trial Judge as to the credibility of witnesses;

(ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial:

(iii) the right of the accused to the benefit of any doubt, and

(iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

If on appraisal of the evidence and on considering relevant attendant circumstances, it is found that two views are possible, one as held by the

trial Court for acquitting the accused, and the other for convicting the accused, in such a situation the rule of prudence should guide the appellate

Court not to disturb the order of acquittal made by the trial Court. Unless the conclusions of the trial Court drawn on the evidence on record are

found to be unreasonable, perverse or unsustainable, this Court should not interfere with the order of acquittal.

Where the trial Court had given clear, cogent and convincing reasons for disbelieving evidence of the prosecution witnesses, the appellate

Court would not be justified while reversing the acquittal by reappraising the evidence and not considering the findings of the trial Court or

demonstrating that they were not sustainable at all.

However, if the appellate Court finds that the reasoning of the trial Court in rejecting the evidence of important witnesses is highly discrepant

and patently erroneous which could not be accepted at all, then the appellate Court shall interfere with the order of acquittal.

The above principles have been laid down by the Apex Court in the following decisions.

1 Awadhesh and Anr Vs. State of Madhya Pradesh,

Ramesh Babulal Doshi Vs. State of Gujarat,

Tallurri Venkaiah Naidu v. Public Prosecutor, High Court, A.P.(1997 S.C.C. (Cri) 175)

Thus, the ratio decided in the above cases is that the appellate Court before making appraisal of the evidence available on record

independently should necessarily go into the reasonings given by the trial Court for acquitting the accused. Only when this Court finds that the said

reasonings are palpably wrong, it can make a reappraisal of the evidence to arrive at its own conclusion.

In that view of the matter, let us now look into the reasonings given by the trial Court for acquitting the accused. The following are the

reasonings:

(i) According to P.W.1 Govindasamy, he was nominated by the villagers as their representative to collect money from the villagers and to complain

to the Government and to take steps for the release of water, so that it would reach the village. But, there is no record for such nomination or

appointment of the said Govindasamy as their representative.

(ii) P.W. 1 accepted in his evidence that the water was released from Bhavani Sagar Dam on 14.12.1987 and their lands received water on

28.1.1988. Therefore, the theory that the accused was trying to block the supply of water to the village for getting bribe amount is unbelievable.

(iii) The accused does not have any important role in releasing water from Bhavani Sagar Dam. P.W.1 complained to the higher authorities for the

non-supply of water. So, there is no necessity or reason for the accused to demand money. If really the accused had demanded and accepted, the

villagers could have complained against the accused to the higher authorities. PWs. 1, 3 and 4, the villagers alone would speak about the demand

and acceptance. As they are interested witnesses, their evidence cannot be relied upon.

(iv) P.W.8 Angamuthu, Assistant Engineer would depose that a little water was flowing in the canal. Therefore, the accusation that the accused

demanded money on 26.2.1988 and 14.3.1988 cannot be accepted.

(v) The Investigating Officer who had examined the witnesses in this case expired. This has caused very serious prejudice to the accused.

(vi) D. Ws. 1 and 2, the Officers working in Public Works Department sold two Indira Vikas Patras to Govindasamy. The accused received the

money from P.W. 1 towards the purchase of the said Patras. This is believable. Therefore, the presumption u/s 4(1) of the Act will not arise in this

case. Hence, the case of the prosecution is unbelievable and the evidence of the defence is accepted.

In order to find out as to whether these reasonings are correct and would not suffer from any infirmity, I have gone through the entire evidence.

On a careful scrutiny of the records, I am of the considered view that not only the above reasonings are wrong, but also the entire approach

adopted by the trial Court in appreciation of the materials available on record would reflect utter perversity. In other words, it can be stated that

none of the reasonings given by the trial court for concluding that the prosecution case is not reliable is not based upon any evidence available in

this case, but the entire finding of the trial Court is thoroughly based upon misreading of the evidence.

According to P.W.1 Govindasamy, who is a resident of Pappavalasu village, though there was a Notification on 14.12.1987 that water would

be released from Bhavani Sagar Dam and on the basis of the notification, the villagers in that area had sown the groundnut seedlings, they did not,

receive any water supply to their field, as a result of which, 7 or 8 villages were very much affected. Consequently, there was a meeting of all the

villagers. In the said meeting, the villagers requested P.W. 1 to lead them in order to represent their grievance to the higher authorities and it was

decided to collect Rs. 5/- per every acre from the villagers towards the expenditure to be incurred. Accordingly, on 11.1.1988 the villagers under

the leadership of P.W.1 Govindasamy sent a memorandum to the District Collector requesting supply of water to save the groundnut seedlings

sown in 1500 acres in the villages around Anjur channel. Ex.P1 shows that several villagers have signed in it. The first signature has been put by

P.W. 1.

On receipt of this memorandum, the District Collectorate forwarded the same to the Assistant Executive Engineer to take action and asked him

to send the report on or before 30.1.1988. This was again forwarded to the Kangeyarn P.W.D. Office by the endorsement dated 3.2.1988. Apart

from this, Ex.P5, P6 and P7, the various memoranda sent by the villagers to the higher officials on 25.1.1988, 1.2.1988 and 3.2.1988, all would

show that P.W.1 Govindasamy put his signature as a first person along with others. P.W.4 Gopal also signed in those documents. Moreover, all

these memoranda were forwarded to the accused Officer, who in turn sent, replies stating that the steps were being taken for releasing more water.

These replies have been marked even by the accused as Exs.D1 and D2. This piece of evidence by P.W. 1 has also been spoken to by P. Ws.3

and 4, the other villagers.

In the light of these materials, it is quite erroneous on the part of the trial Court to say that there is no order of appointment to show that

Govindasamy was nominated as the representative of the villagers.

The evidence of P.W.1 is that he met the higher officials on various occasions and represented to them about the non-receipt of water to their

villages. After the intervention of superiors, the villagers had received some water.

According to the evidence of P. Ws.1, 3 and 4, they went and met the Superintending Engineer on 25.1.1988 and complained about the non-

receipt of water. On 28.1.1988 and 29 1.1988, some water was supplied. Since it was not sufficient, they again went and complained to the

Superintending Engineer on 30.1.1988. On that day, a letter was given by the Superintending Engineer addressed to the accused. On getting this

letter, P. Ws. 1, 3 and 4 and others went and handed over to the accused at Kangeyarn. Thereafter, water was released on 14.2.1988. It reached

the village on 19.2.1988 and subsequently, it was stopped. On 24.2.1988 they went and met the Superintending Engineer again. Though he

assured that he would arrange for the supply of water, water did not come till 26.2.1988. Therefore, on 26.2.1988 at 4 O''clock. P. Ws. 1, 3 and

4 and one Palanisamy went to Kangeyam and met the accused in his office. They requested him to arrange for the Supply of water and said that if

no water is supplied, the entire seedlings would get spoiled.

Only in that context, the accused demanded the bribe money stating that the ryots of upper ayacut were paying him the bribe and that if they

also pay him, he would allow more water to them also. According to P. Ws.1, 3 and 4. they decided to pay Rs. 500/- to the accused, who

assured them that there would be increased flow of water. Even thereafter, the water came for about 5 days. Then, it was stopped. Again on

14.3.1988, they went and met the accused at Muthur and pleaded their plight. This time, he made a specific demand of Rs. 1,000/-. When Rs.

500/- was paid, the accused insisted on the payment of the balance also. He also stated that he would come to Muthur again on 16.3.198 8 and

on that date, they should pay the balance of Rs. 500/-. P.W.1 and others agreed to pay this sum and left.

But, since the official, in spite of the interference of the superior officer, demanded bribe again and again for releasing of water, the villagers

convened a meeting and again requested P.W.1 to give a complaint on their behalf about the demand of bribe made by the accused. This aspect of

the evidence is clearly spelt out in Ex.P2, complaint and in the deposition of P. Ws. 1, 3 and 4.

In regard to the demand and acceptance of the amounts on 26.2.1988 and 14.2.1988, P. Ws. 1, 3 and 4 would give a clear picture. As

indicated earlier, whenever the memoranda had been sent by the villagers to the higher authorities, those memoranda were used to be sent to the

accused officer for taking proper action.

P.W.8, the Assistant Engineer also would admit that the accused and himself would be in charge of water and on their direction, the luskar will

release the water. Moreover, it is the evidence of P.W.8 that if the villagers complain to him about the non-availability of water, he would inform

the accused, the Assistant Executive Engineer, who in turn inform the Executive Engineer and the Executive Engineer would instruct the Assistant

Executive Engineer to release water.

These things would show that the accused had an important role in releasing the water. Furthermore, as stated above. Exs.D2 and D3. the

reply letters sent by the accused to the higher officials would as well show that he had control over the water and he had been releasing the water

periodically. In such circumstances, it cannot be said that the accused had no role in releasing the water.

To say that the evidence of P. Ws. 1, 3 and 4 cannot be accepted, as they are interested witnesses, is quite preposterous, since they do not

have anything to depose against the accused. On the contrary, Ex.P5 dated 1.2.1988. Ex.P6 dated 3.2.1988 and Ex.P7 dated 25.1.1988 written

by P.W.1 and others would show that the entire villagers thanked the officers concerned for the supply of water on some dates.

The grievance of the witnesses is that though there was supply for some days, the water was stopped for the subsequent days. Moreover, the

accused demanded the bribe every now and then, whenever the villagers come and request him for the release of more water.

Under the circumstances, there is no reason to reject the evidence of P. Ws. 1, 3 and 4.

The mere fact that the witnesses have not given any written complaint with regard to the receipt of money on 26.2.1988 and 14.3.1988 would

not be a ground to reject the evidence of P. Ws.1, 3 and 4, especially when they have stated in the F.I.R. itself that they paid the money out of

necessity or else they would not be able to get any water, which ultimately would result in the spoiling of the groundnut seedlings sown in 1500

acres. This aspect also has been explained in the deposition.

However, it shall be noticed that the witnesses have spoken truth with regard to the payment of bribe on earlier dates. Especially when there is

nothing to speak falsehood against the accused officer for whom the villagers thanked by sending letters Exs.P5 to P7. there cannot be any reason

to reject the evidence of P. Ws.1, 3 and 4.

It is true that one Ramasamy was the Investigating Officer in this case. But, it is seen from the records that P.W.9 Manickarao, another

Inspector of Police was throughout present with the said Ramasamy assisting the investigating. As a matter of fact, P.W.9 has signed in both the

mahazars Exs.P4 and P8, one is pre-trap mahazar and another is for the seizure of the trap money from the accused, prepared at the office of the

accused. It is also seen from the records that P.W.9 was questioned with reference to the contradiction made in the statement of P.W.3 recorded

u/s 161 Cr.P.C. by the Investigating Officer.

Under those circumstances, the death of the Investigating Officer Ramasamy would not, in any way, affect the case of the prosecution. The trial

Court did not say as to how the accused is prejudiced due to the death of the Investigating Officer, particularly when another Investigating Officer,

who was assisting the said Investigating Officer, who is no more, from the beginning was examined. After the death of the Investigating Officer, the

further investigation was done by another officer one Thirumurthy, who filed the charge-sheet. He was also examined as P.W.10. Therefore, this

reasoning also would not be said to be a valid one.

It is no doubt true that before invoking the presumption u/s 4(1) of the Act, it is the duty, of the prosecution to establish that the money was

received by the accused as a bribe or gratification. Mere receipt of money would not be enough to raise the presumption as contained in Section

4(1) of the Act.

With reference to the above legal position, it would be appropriate to quote the decision of the Apex Court in Mohmoodkhan Mahboobkhan

Pathan Vs. State of Maharashtra, ). The following is the relevant observation:

Section 4(1) of the Act enjoins that upon proof of a certain premise ""it shall be presumed, unless the contrary is proved that"" he accepted the

gratification as a motive or reward etc. If the primary condition specified in the sub-section is satisfied by the prosecution the Court is legally bound

to proceed on the footing that the public servant/accused has accepted the gratification as a motive or award for doing any official work in exercise

of official functions. The burden stands shifted to the accused to prove the contrary. But such shifting would not become necessary until

prosecution proves that what the accused has accepted was gratification. The primary condition for acting on the legal presumption u/s 4(1) of the

Act is that the prosecution should have proved that what the accused received was gratification. In other words, unless the prosecution proves that

the money paid was not towards any lawful collection or legal remuneration, the Court cannot take recourse to the presumption of law

contemplated in Section 4(1) of the Act.

In the light of the above observation, it can be very well concluded that unless the prosecution proves that money paid to the accused was a

gratification or bribe. Section 4(1) of the Act cannot be invoked. So, it is bounden duty of the prosecution to establish that the money paid not

towards any lawful collection or legal remuneration but as bribe. Then only the Court can take recourse to the presumption of law contemplated in

Section 4(1) of the Act. Therefore, mere receipt of money by the accused or mere recovery of money from the accused would not be sufficient.

In the light of the above legal situation, the materials available on record have to be looked into, in order to decide the question, whether the

finding of the trial Court that the prosecution did not prove that the amount was given as bribe is correct or not?

The trial Court disbelieved the evidence of P. Ws.1, 3 and 4 with reference to the demand and acceptance of the money on 26.2.1988 and

14.3.1988. As indicated above, the reasonings given by the trial Court for disbelieving the evidence of them are quite wrong. On the other hand,

the reading of the entire evidence would clearly show that the villagers under the leadership of P.W.1 were driven from pillar to post by the officials

concerned.

It is also noticed that there was no regular supply of water and even the intermittent water supply made by the accused, that too at the

intervention of superior officers, was not sufficient to save the crops. The evidence of P.W.8 and the log book marked as Ex. would also clearly

show that the supply of water was not continuous. Initially, there was supply of a little water on the letter given by the Superintending Engineer

addressed to the accused on 30.1.1988. Thereafter, water was stopped.

According to P.W.1. the water released on 14.2.1988 reached the village at the tail-end only on 19.2.1988 and thereafter, it was stopped.

This necessitated the villagers to come and meet the accused on 26.2.1988. On that date, on demand, Rs. 500/- was paid. On receipt of this

amount the water was released on 4.3.1988. The villagers were able to get the supply on 9.3.1988 and 10.3.1988. Thereafter, the water was

stopped.

The witnesses again went to Muthur and met the accused on 14.3.1988. This time he specifically demanded Rs. 1,000/-. They were having

only Rs. 500/- at that time. That amount was paid to the accused. They came to the village and informed the villagers, who, in turn, decided after

consultation, not to give any more bribe to the accused but to give a complaint to the Vigilance.

Unless these chronological events had not taken place, it is not necessary for P.W.1 to state in the F.I.R. about what happened earlier, that is,

on 26.2.1988 and 14.3.1988. Moreover, P.W.3 and P.W.4 have given a clear and cogent evidence with regard to the demand and acceptance

on 26.2.1988 and 14.3.1988 corroborating the evidence of P.W.1.

Under these circumstances, it can be safely held that the evidence of P. Ws. 1, 3 and 4. which is corroborated by the documents Exs.P1, P3.

P5 to P7, would clearly show that the prosecution has established that the amount of Rs. 500/- each demanded and accepted by the accused on

26.2.1988 and 14.3.1988 and his further demand of Rs. 500/- on 14.3.1988 were only the gratification as a motive or reward for releasing of

more water supply to benefit the villagers. In view of the fact situation, the presumption u/s 4(1) of the Act would definitely arise.

Now, the next aspect is the duty cast on the accused for rebutting the presumption raised u/s 4(1) of the Act. The consistent view of the Court

as well as the Apex Court from the beginning is that the burden of proof u/s 4(1) cast on an accused person to rebut the presumption raised there

under, cannot be quoted with the degree and character of proof which rests on the prosecution to prove its case, namely, the receipt of money as

bribe. The accused may rebut the presumption by showing a mere preponderance of probability in his favour. It is not necessary for him to

establish his case beyond a reasonable doubt.

As stated earlier, if the case put forward by the prosecution inherently militates against or is inconsistent with the fact presumed, the

presumption will be rendered sterile from its very inception. But, once the case of the prosecution is proved giving rise to a presumption u/s 4(1) of

the Act, it is sufficient for the accused to offer probable explanation or defence. In other words, if the prosecution proves that acceptance of the

amount by the accused as bribe and the amount does not represent legal remuneration or lawful collection, the accused shall establish that the

amount was not accepted by him as a motive or reward such as is mentioned in Section 161, I.P.C: However, the accused can establish his case

by preponderance of probabilities, that is to say, he need not prove his case beyond a reasonable doubt.

Where the burden of proof lies upon the accused u/s 4(1) of the Act, he is not required to discharge that burden by leading evidence to prove

his case. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused, but

the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him u/s 4(1) of the Act. It is sufficient if the

accused person succeeds in proving his defence by preponderance of probability. It is not necessary for the accused person to prove his case

beyond a reasonable doubt. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original

onus that never shifts, i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.

To put it shortly, it is settled law that if the statute places the burden of proof on an accused person, he is not required to establish his plea, but

the degree and character of proof which the accused is expected to furnish in support of his plea, cannot be equated with the degree and character

of proof expected from the prosecution which is required to prove its case.

Coming back to Section 4(1) of the Act, it is clear that the word ''proving'' as contained in the said section is common for both prosecution as

well as the accused. According to the section, when it is proved by the prosecution that an accused person has accepted any gratification other

than legal remuneration, it shall be presumed that he accepted the said gratification as a motive or reward as mentioned in Section 161, I.P.C.

unless the contrary is proved by him. Though the word ''proved'' has been used with reference to both the parties, namely, the prosecution and the

accused, the interpretation of the said section by the Apex Court would go to show that the burden of proof on the accused is not as onerous as

that of the prosecution. In other words, the word ''proved'' mentioned in the earlier part of the section in relation of the duty of the prosecution

would mean to be proved beyond reasonable doubt, whereas the word ''proved in the latter portion of the section in regard to the burden of proof

on the part of the accused would mean, the same could be proved by mere preponderance of probability and need not be beyond reasonable

doubt.

The above principles have been laid down in the following decisions:

1) V.D. Jhingan v. State of U.P. (1966 S.C. 1762 : 1966 Cri. L.J. 1357);

2) Mahesh Prasad Gupta Vs. State of Rajasthan,

3) Trilok Chand Jain Vs. State of Delhi,

4) Man Singh Vs. Delhi Administration,

5) Periyaswamy Vs. Inspector, Vigilance and Anti-Corruption,

In the light of the above legal situation, let us now consider whether the accused had by preponderance of probability displaced the

presumption u/s 4(1) of the Act.

It is clear from the above decisions that even though the prosecution had proved its case that the amount was given as a gratification, if the

accused gives explanation for the receipt of money and if the said explanation is found to be probable, then it can certainly cast a doubt on the

basic truth of the prosecution case.

Now let us see whether the explanation for the receipt of the amount given by the accused has been established through preponderance of

probability.

The plea of the accused was that he received Rs. 500/- on 16.3.1988 from P.W.1 towards the amount payable by him for purchase of two

Indira Vikas Patras of the value of Rs. 250/- each. To support this theory, the accused examined D. Ws.1 and 2 and filed Ex.D3, the file of the

office of the Assistant Engineer, Public Works Department, Kangeyam.

In the written statement submitted by the accused during the questioning u/s 313 Cr.P.c., the accused would state as follows:

I took charge in October 1987. I found that the Indira Vikas Patras entrusted to the Officers in various Divisions were not sold in time. Hence, I

insisted by writing letters to the officers concerned to sell those Patras and send the amount. The amount as well as the members about the

purchases were used to be given by the officers concerned to Kannan (D.W.1), an Assistant in my office and the same would be sent to the

Executive Engineer, Erode through an office Assistant. Parthasarathy (D.W.2), in-charge of Sennimalai Division was not able to sell the Indira

Vikas Patras entrusted to him. On 1.12.1987, the said Parthasarathy came to my office for official matters and informed me that two Patras are yet

to be sold. At that point of time, I asked Govindasamy (P.W.1), who came along with the villagers to get the information regarding the release of

water in the Canal, to purchase those Indira Vikas Patras. He said that he was prepared to purchase those Patras, but he did not bring the money.

Therefore, I asked him to purchase them on that day itself and pay the amount later. Accordingly, he got the Patras from Parthasarathy (D.W.2). I

paid the money of Rs. 500/- out of my pocket to Kannan (D.W.1) on that day itself and sent the same along with the particulars to the Executive

Engineer at Erode.

P.W.1 did not pay back the amount. In February 1988, when I went to Anjur, I met Govindasamy and asked him in a harsh tone as to why the

said amount was not paid yet, in the presence of other villagers. Due to this, P.W.1 would have got some grievance. On 16.3.1988 when I was in

Muthur Division Office, Govindasamy (P.W.1) came to me and handed over Rs. 500/- towards the purchase of two Indira Vikas Patras. I

received the said amount. I also explained this to the Inspector Ramasamy, who came and conducted trap on that day.

Thus, the crux of the statement of accused is that on 1.12.1987, at his instance, P.W.1 purchased two Indira Vikas Patras from Parthasarathy

(D.W.2) at Kangeyam and for his sake, he paid the amount of Rs. 500/- to Kannan (D.W.1) and sent the same to the Executive Engineer on the

same day itself and that on 16.3.1988 he received the said amount from Govindasamy at Muthur Division.

When P.W.1 was cross-examined, it was suggested that the accused handed over two Indira Vikas Patras each value of Rs. 250/- to P.W.1

on the assurance that P.W.1 would pay the amount later and that the accused sent his own money to the Government. The suggestion was denied

by P.W.1. The following is the extract:

In this suggestion, there is no reference about D.W.1 and D.W.2.

According to the written statement, the accused gave explanation to Ramasamy, the Inspector of Police. But, when P.W.2, the trap mahazar

witness and P.W.9, another Inspector of Police were examined, it was suggested that during the course of trap, the accused gave explanation, but

the Inspector of Police deliberately did not record the same in the mahazar.

The evidence of P.W.2 and P.W.9 would clearly show that when the explanation was sought for by the Inspector of Police for receipt of

money, the accused did not give any explanation. In the answer given during questioning u/s 313 Cr.P.C., the accused would state that he gave

explanation, but the Inspector of Police refused to record the same. But, he would admit that he signed in Ex.P8, the mahazar prepared at the time

of trap.

The perusal of Ex.P8 would show that the Inspector of Police asked the accused to give explanation, but he could not give any explanation or

reason. The relevant portion in Ex.P8 is as follows:

At the bottom, one Natesan, Superintendent, O/o Joint Director of Agriculture, Erode, the superior Officer of the accused and Karuppannan

(P.W.2) have signed. Below their signatures, the accused put signature. Thereafter, both Inspector Ramasamy (P.W.9) and another Inspector of

Police have signed in the document.

Had the accused actually given any explanation, the Inspector of Police would have mentioned in Ex.P8 mahazar. There is no necessity for the

Inspector of Police to state in Ex.P8 that the accused kept mum and he could not give any explanation. Moreover, both the superior officer of the

accused and the accused signed in the document. If such an explanation was given and the same was refused to be recorded, the superior officer,

as well as the accused would not have put their signatures in the mahazar, in which it is clearly stated that there was no explanation. Therefore, the

plea of the accused that he gave explanation even during the course of trap, cannot be accepted.

Furthermore, the trap was held on 16.3.1988. The sanction for the prosecution Ex.P10 was obtained from the competent authority as spoken

to by P.W.5 on 14.9.1989. Till then, there was no attempt by the accused to send the intimation to the authority concerned about what really

happened. If such a representation had been sent to the sanctioning authority, this would have certainly been considered before granting sanction.

It is not the case of the defence that after the refusal of the Inspector of Police to record his explanation in the mahazar, he sent a complaint

against the Inspector of Police regarding the improper conduct and the biased investigation either to his superior officers or to the Vigilance Office.

Furthermore, the defence plea had been projected by the accused only during the course of cross-examination of P.W.1 on 8.3.1991, even though

the trap was held on 16.3.1988. Thus, it is clear that the plea of the defence is quite belated.

According to the counsel for the respondent, as laid down by the Supreme Court, neither the prosecution nor the accused can take the

advantage of such answers, as it would be inadmissible u/s 162 Cr.P.C.

I am not able to agree with this submission. There is a clear distinction between the conduct of a person against whom an offence is alleged,

which is admissible u/s 8 of the Evidence Act and the statement made to a Police Officer in the course of an investigation which is hit by Section

162, Cr.P.C. What is excluded by Section 162 Cr.P.C. is the statement to a Police Officer in the course of investigation and not the evidence

relating to the conduct of an accused person when confronted or questioned by a Police officer during the course of an investigation. This is settled

law as laid down in Prakasah Chand v. State (Delhi Administration) (1979 S.C.C. (Cri) 656).

In the instant case, it is the case of the prosecution, as per the evidence of P.W.2 and P.W.9 and Ex.P8 mahazar, that when the accused was

confronted, he could not give any explanation, but he kept mum. This conduct would certainly be admissible u/s 8 of Evidence Act to consider as a

corroborative piece of evidence, which would support the prosecution case.

However, merely because there is no material to show that the accused did not give any explanation even during the course of investigation, it

cannot be concluded that the explanation itself is liable to be rejected.

Now, let us see whether the plea of the defence, as stated in the written statement filed by the accused on 5.4.1991 during the questioning u/s

313 Cr.P.C., is in consonance with the evidence of D.W.1 and D.W. 2 coupled with Ex. D3, which were placed in order to prove the defence

theory.

According to D.W.1 Kannan as Assistant working in P.W.D. office. Kangeyam, on 21.9.1987 the office received the information from the

Government dated 10.9.1987 to sell 20 Indira Vikas Patras worth about Rs. 250/- each and on 1.12.1987 in letter No. 2390/87 in Ex.D3 file,

two Indira Vikas Patras Nos. 324778 and 324779 were sold to Anjur Govindasamy. He would further state that he sent the sale amount and the

particulars of the persons to whom the patras were sold by the letter dated 4.11.1987, 11.11.1987, 17.11.1987, 24.11.1987, 30.11.1987 and

2.12.1987.

It is also seen from his evidence and Ex.D3 that the amount as well as the particulars of Anjur Govindasamy for two Indira Vikas Patras were

sent on 2.12.1987 through the letter No. 2390/87 dated 1.12.1987.

It is specifically stated in the statement of the accused that for the sake of Anjur Govindasamy (P.W.1), he paid Rs. 500/- out of his own

money to Kannan (D.W.1) and sent the amount along with the letter on 1.12.1987 itself to the Executive Engineer. Ex.D3 would show that the

accused sent a letter dated 1.12.1987 to the Executive Engineer stating that out of the total amount of Rs. 5000/-, Rs. 4,500/- was already sent

towards the sale amount of Indira Vikas Patras and the balance of Rs. 500/- was being sent, since two Indira Vikas Patras Nos. 324778 and

324779 were sold to Govindasamy, Pappavalasu, Anjur and the same was received on 2.12.1987 by the Executive Engineer, Erode.

Ex.D3 is a carbon copy of the letter. On the side of the prosecution, the original of Ex.D3 was marked as Ex.P.16 in order to show that the

wordings contained in both the documents are different and as such, Ex.D3 is not a true copy of the original Ex.P16. According to the prosecution,

both Ex.P16 and letter Ex.D3 were later introduced in order to help the accused by the Officers attached to P.W.D.

But, on going through the records, I do not see any force in the contention urged on behalf of the prosecution. Though Ex.D3 cannot be stated

to be the carbon copy of Ex.P16, Ex.P16, the original which was marked on the side of the prosecution would indicate that it was under the

custody of the Executive Engineer and it is not possible for the accused to fabricate Ex.Pl6. Therefore, Ex.P16 cannot be said to be fabricated.

Under these circumstances, Ex.D3 which contains the same wordings of Ex.P16 can be considered to be the copy.

But, the question remains to be considered is, whether the amount was given by the accused for the sake of P.W.1 on 1.12.1987 and the said

amount was received by the accused from P.W.1 on 16.3.1988, the date of trap?

As indicated above, it is the specific case of the accused that he gave Rs. 500/- to Kannan, who in turn sent the amount to the Executive

Engineer. But unfortunately, the said Kannan (D.W.1) did not state that for the sake of P.W.1, he received the amount from the accused and sent

the same on 1.12.1987. As a matter of fact, when D.W.1 would speak about the procedure, he would state as follows:

Under those circumstances, it is clear that there is no indication in the deposition given by D.W.1 that he received the amount from the accused

on behalf of P.W.1 and sent the same to the Executive Engineer. On the other hand, he would state that the two Indira Vikas Patras were sold by

Parthasarathy to Anjur Govindasamy, but Parthasarathy did not hand over the said amount to him. The relevant extract is as follows:

The documents Exs.P16 and Ex.D3 and the deposition of D.W.1 would clearly show that the amount was collected from Anjur Govindasamy

on 1.12.1987 itself and the said sum was sent through the letter dated 1.12.1987 and the same was received by the Executive Engineer on

2.12.1987. But the statement of the accused that he gave the amount for P.W.1 to Kannan (D.W.1) is not actually supported by Kannan.

D.W.2 Parthasarathy would state that on 1.12.1987, he went to Kangeyarn office to meet the accused and at that time, the accused told him

that all of them sold their Patras and he was the only person who had not completed it and when he expressed his difficulties, the accused asked

Govindasamy, one of the agriculturists, who came to the Office, to receive the two Patras, but P.W.1 replied that he did not have money and

despite that, the accused asked him to hand over the two Patras to Govindasamy stating that the accused would himself give the money for the

sake of P.W.1 and accordingly, he handed over it to P.W.1 and that thereafter, he gave the particulars of P.W.1 to D.W.1.

According to the statement of the accused, he asked P.W.1 to purchase two Patras on that day and he could pay the amount later. But,

D.W.2 would state, as stated above, that the accused informed P.W.1 that he himself would pay the amount on his behalf. There is no reference in

the deposition of D.W.2 about the accused having asked P.W.1 to bring the money later. As indicated above, both D.W.1 and D.W.2 never said

that the amount of Rs. 500/- was handed over to Kannan by the accused on behalf of P.W.1 to be sent to the Executive Engineer on 1.12.1987.

It is also noticed in the deposition of D.W.2 that he would admit in the chief examination itself that he did not inform the Police Officers about

the fact of having handed over two Indira Vikas Patras to Anjur Govindasamy. However, curiously, in the cross-examination, he would state that

he informed the Inspector of Police that he sold two Indira Vikas Patras to Anjur Govindasamy and the amount was due from him. This is quite

contradictory to his statement made in the chief examination.

It is also elicited in the cross-examination that D.W.2 was a person, who went to the Police Station on the date of trap and stood surety in the

bail bond for the release of the accused from the Police Station. But, the entire reading of the deposition of D.W.2 would not show that the amount

was paid by the accused on 1.12.1987 either to D.W.1 or D.W.2 for the sending the same to the Executive Engineer towards the sale amount of

two Indira Vikas Patras stated to have been sold to P.W. 1 Anjur Govindasamy.

At this juncture, it shall be borne in mind that when the suggestion regarding the sale of Patras was put to P.W.1 during the course of cross-

examination, he emphatically denied the same. Though Exs.P16 and D3 and the evidence of D. Ws.1 and 2 would refer about the name of Anjur

Govindasamy, in the light of the denial of the suggestion by P.W.1 regarding the purchase of India Vikas Patras from D.W.2, the defence must

have shown some materials to probabilise that the name of the person mentioned in Exs.P16 and D3 is that of P.W.1, D.W.1 and D.W.2 both

would admit that they do not get the signature of the purchasers of the Patras.

Furthermore, the water was let out on 14.12.1987 at the L.B.P. Dam at Bhavani Sagar. Even after 20 or 25 days, the tail-end farmers belong

to Anjur did not get the water. Therefore, they sent a written representation Ex.P1 on 11.1.1988. On 25.1.1988 P.W.1., P.W.3 and P.W.4 went

and met the Superintending Engineer. Again they met him on 30.1.1988. On the said date, the Superintending Engineer handed over a letter

addressed to the accused to the villagers and asked them to meet the accused at Kangeyam. Therefore, P.W.1 and other villagers met the accused

for the first time, only after getting the letter on 30.1.1988. Under those circumstances, there was no need for P.W.1 and other villagers to go to

the accused to insist for the release of more water.

As stated earlier, the process of representation and meeting the officials were started only from 11.1.1988 through Ex.P1. It is clear from the

evidence of P.W.1 that he did not meet the accused either on 1.12.1987 or on any date prior to that. On the other hand, he would specifically

deny the suggestion that he had acquaintance with the accused even prior to 1.12.1987 and he did not purchase any Patras from the accused.

Under those circumstances, the explanation which is belatedly given cannot be said to be probable, especially when D.W.1 Kannan would not

state that he received the amount of Rs. 500/- from the accused on behalf of P.W.1 towards the sale amount of two Indira Vikas Patras.

Thus, on a careful consideration of the facts and circumstances of the case, I am not satisfied that the respondent/accused had even by

preponderance of probability succeeded in rebutting the presumption, which would arise u/s 4(1) of the Act.

On going through the judgment impugned, I have no doubt that the trial Court has misdirected itself by patently wrong and tenuous

considerations and consequently, it resulted in unmerited acquittal of the accused, against whom the prosecution succeeded in making out a

foolproof case u/s 161 of I.P.C. and Section 5(1)(d) read with 5(2) of the Act.

In the result, the appeal is allowed and the judgment impugned is set aside and the accused/respondent is convicted for the offences u/s 161 of

I.P.C. and Section 5(1)(d) with 5(2) of the Prevention of Corruption Act, 1947.

M. Karpagavinayagam, J: Respondent is present. When asked regarding the question of sentence, the respondent/accused filed a memo

mentioning various reasons for taking lenient view in awarding the sentence.

It is stated in the memo that he is aged about 63 years and in view of the conviction imposed by this Court, he would lose all his retirement

benefits and that the occurrence had taken place in March, 1988 i.e. 11 years back and he has got 3 daughters and is now living with his eldest

daughter, who is the General Medical Practitioner and that if he is sent to prison, he will be put to great hardship and sufferings.

Learned Government Advocate would also submit that this Court may take lenient view, in view of the reasons given in the memo filed before

this Court.

Under those circumstances, it is appropriate to impose sentence, directing the respondent/accused to undergo imprisonment till the rising of the

Court and to pay a fine of Rs. 5,000/- in default to undergo R.I. for one year. The respondent is directed to sit in this Court till the rising of the

Court to undergo the sentence imposed on him as indicated above. Time for payment is one month from today.