T. Danial Manickaraj vs The State

S. Ashok Kumar, J.—This Criminal Appeal is filed as against the judgment rendered in Spl. C.C. No. 7/1994 by the learned Additional

District Sessions Judge cum Chief Judicial Magistrate and Special Judge, Tirunelveli and to set aside the conviction and sentence of one year

rigorous imprisonment and Rs. 1000/- fine, in default, three months R.I imposed u/s 7 of the Prevention of Corruption Act and one year R.I and

Rs. 1000 fine, in default, 3 months R.I imposed u/s 13(2) r/w. 13(1)(d) of the said Act.

The brief facts of the prosecution case is as follows:

P.W. 2, the complainant intended to run a retail rice and paddy business and for that purpose to get a dealership licence, he filed necessary

statutory payments by way of challans and submitted the same to the office of the Sub Collector, Cheranmadevi. However, the clerk in the said

office directed the complainant to submit the said papers to the office of the Tashildar, Ambasamudram. Thereafter the complainant was forced to

run from pillar to post under the guise of affixing new stamps and sending the same by RPAD to Sub Collector and to get a report therefrom.

Ultimately, on 22.6.1993, at 11.00 a.m., when P.W.2 met the accused in the office of the Tahsildar, Ambasamudram, he demanded a sum of Rs.

250/- to recommend his request for issuance of licence with the Sub Collector and instructed him to pay the said sum on the next day. P.W.2 not

satisfied with the attitude of the accused decided to report it to the Vigilance and Anti corruption wing. Accordingly, on the next day, at 7.00 a.m.,

he went to the Vigilance and Anti Corruption Office situated at Palayamkottai, with the sum of Rs. 250/- and gave a statement as to the entire

happenings. Thereafter, after obtaining his signature in the said statement, and after getting necessary permission from the higher officers, P.W.4,

Inspector, registered a case in Crime No:4/93 and prepared the FIR under Ex.P.11 and arranged to send the originals to the Court.

Pursuant to the above, a trap was arranged by P.W.4, Inspector of Police for which two independent official witnesses were also summoned.

The trap was carried out successfully and the sum of Rs. 250/- given was also seized from the accused and the phenolphthalein test with Sodium

Carbonate Solution conducted on the accused also proved positive. Thereafter the successor in office, P.W.13 investigated the case and after

recording statements from the prosecution witnesses, and after obtaining the Scientific Reports from the Regional Forensic Science Laboratory,

filed final report on 31.8.1994 under Sections 7 and 13(2) r/w. Section 13(1)(d) of the Prevention of Corruption Act.

Before the Chief Judicial Magistrate cum Special Judge for Vigilance and Anti Corruption Cases, on behalf of the prosecution, P.Ws 1 to 13

were examined and Exs. P.1 to P.34 were marked. On behalf of the accused D.W.1 was examined and Ex. D.1 was marked. M.Os 1 to 3 were

also marked. When the accused was questioned u/s 313 Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the

prosecution witnesses as against him, the accused denied the allegation of receiving illegal gratification as false.

On a consideration of the oral and documentary evidence, the learned Special Judge, Tirunelveli found the accused guilty of the offences under

Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, convicted and imposed the sentence as stated earlier.

Aggrieved of the same, the present Criminal Appeal is filed.

Learned Counsel for the appellant/accused contends that the receipt of Rs. 250/- by the accused is accepted and admitted. But the learned

Counsel for the appellant would submit that the amount was received towards Flag Day Collection for which indent was made to all the Revenue

Inspectors by the respective Thasildars. In support of such contention, the learned Counsel for the appellant would press into service the evidence

of D.W.1, Thasildar who has deposed that each Revenue Inspector was directed to collect for the Flag Day Collection and amount was also fixed

to them. The other three Revenue Inspectors viz., S. Ponniah, P.A. Ganesh Kumar and U.S. Balasubramaniam have made such flag day

collections in a sum of Rs. 1200/-, Rs. 750/-, and Rs. 1000/- respectively and produced the same on 14.7.1993, 7.7.1993 and 2.7.1993

respectively as seen from Ex.D.1. The other Revenue Inspectors have deposited the collected amount in month of July 1993 itself. But the accused

could not deposit in July 1993, because he was arrested on 23rd June, 1993 and records were seized from him.

In 2006 (2) MLJ (Crl) 1001 State, rep. by Superintendent of Police, V & AC, Chennai v. Subramanian and Ors. and also in the judgment

reported in 2006 (2) MLJ (Crl) 971 M.K. Shanmughasundaram v. Inspector of Police V & AC, Salem, this Court in a similar situation, followed

the decisions cited hereunder:

In Sundara Krishnan v. State etc., reported in 1998-2 L.W. (Crl) 718 this Court held as follows:

Like every other criminal case, a case of bribery is subject to the rule that the accused is presumed innocent and that the burden to discharge

the said innocence is paramountly on the prosecution. However strong the suspicion against the accused if every reasonable possibility of

innocence has not been excluded, he is entitled to acquittal. Whenever circumstances arise, they must be proved and not by themselves

presumed.""... ""If therefore the evidence regarding the demand and acceptance of bribe leaves room for doubt and does not displace the presence

of innocence wholly, the charge cannot be said to have been established.

...In a case of corruption, especially in a trap case, when the accused on admitting the acceptance of the tainted money, attributes different

reasons for having obtained the same from the complaint, it becomes the duty of the accused to discharge the burden by establishing with valid

evidence, the reason that is attributed by him for the acceptance of the tainted money. But while discussing as to what should be the standard of

proof that could be expected from the accused under such circumstances wherein the accused takes up a plea admitting the acceptance of the

tainted money, but comes forward to attribute other reasons for the acceptance of the same...""it would be unreasonable on the part of the Courts

to expect the accused to prove his version with the such standard i.e., required for the proof of a civil case i.e., preponderance of probabilities but

in such a situation if the accused is able to offer proper explanation to the satisfaction of the court in a convincing manner, that is sufficient for the

courts to hold that the accused has cast off his burden of proof pertaining to the stand taken by him.""... ""The Apex Court has held that even in such

event wherein the accused fails to discharge that part of the burden cast on him, still, since the accused is presumed innocent at the outset, the initial

burden cast on the prosecution regarding the proof of the entire case against the accused with proof beyond reasonable doubts persists and unless

the prosecution is able to prove with such standard of proof beyond all reasonable doubts, the accused would still become entitled to be acquitted.

In State of Tamil Nadu v. S. Krishnamurthy reported in 2002 (4) Crimes 295 (SC) the Hon''ble Supreme Court has held as follows:

...It also noticed the fact that granting of patta certificate was not the sole responsibility of the respondent and it was a cumulative act of various

officials of the taluk Office. Therefore, the High Court also came to the conclusion that a demand for an individual bribe in the acts and

circumstances of the case cannot be accepted.

...The prevalence of the practice in the office in question of collecting the flag day fund and the teacher''s day fund seems to have been an

authorised practice, though we do not approve of such practice. While considering a criminal appeal, if the existence of such practice is established

and the defence taken by the accused is in conformity, with such practice, we are in agreement with the High Court that the mere fact that the

respondent received a sum of Rs. 300/- would not ipso facto lead to the conclusion that the money in question was received by him as a bribe of

showing an official favour.

In Duraisami v. State of Tamil Nadu reported in 2005 SCC (Cri) 1508 the Hon''ble Supreme Court held as follows:

...The appellant admitted the receipt of Rs. 500/- from PW1 but he contended that he had sold Indira Vikas Patras to PW1 on 1.12.1987 and

for which he had not paid the money and the amount which was paid on 16.3.1988 was the value of those Indira Vikas Patras....

The learned Single Judge reversed the acquittal passed by the Special Judge, firstly for the reasons that the appellant did not give a statement at

the time of his arrest that the money he had received was towards the value of two Indira Vikas Patras sold by him to PW1 and secondly, PW 2

who was allegedly present at the time of sale of Indira Vikas Patras did not depose that the appellant had been selling these Indira Vikas Patras on

credit"".... ""We do not think that the learned Single Judge was justified in rejecting the evidence of DW.2 Once Exhibit P.16 was found to be a true

and genuine document, the case set up by the defence has to be accepted and in that view of the matter we do not think that the learned Single

Judge was justified in reversing the acquittal passed by the Special Judge.

In T. Subramanian v. State of Tamil Nadu reported in 2006 (1) SCC (Cri) 401 the Apex Court held thus:

Mere receipt of Rs. 200/- by the appellant from P.W.1 on 10.7.1987 (admitted by the appellant) will not be sufficient to fasten guilt u/s 5(1)(a)

or Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification.... If the reason for

receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted as rightly done by the

Special Court....

...The above evidence no doubt proves that a sum of Rs. 200 was paid by PW 1 to the appellant. But the crucial question is whether the

appellant had demanded the same amount as illegal gratification to show any official favour to PW1 and whether the said amount was paid by PW

1 and received by the appellant as consideration for showing such official favour....

In Union of India v. Purnandu Biswas reported in 2006 (1) SCC (Cri) 520 the Apex Court held as follows:

Mr. Balakrishnan would urge that admittedly no demand was made from PW. 2 It is also accepted that PW3 bore a grudge against the

respondent and as such here was every possibility of foisting a false case against him....

In Punjabrao v. State of Maharashtra reported in 2004 SCC (Cri) 1130 the Hon''ble Supreme Court held as follows:

...It is, of course, true as observed by the High Court that when the investigating officer seized the amount from the accused Patwari, he did not

offer the explanation that it was in relation to a collection of loan, but that by itself would not be sufficient to throw away the explanation offered by

the accused in his statement u/s 313 when such explanation could be held to be reasonable under the facts and circumstances of the case, as

indicated by the learned Special Judge while acquitting the accused.

In this case as well, at the time of arrest the accused was not examined by the concerned police officials who arrested him. If the accused was

questioned at that time, he could have given an explanation as to why the amount was received by him. But no statement was recorded from the

accused at the time of arrest and thus an opportunity to explain as to why he received the amount has been denied to the accused. The probability

of the accused collecting the amount for the Flag Day Collections is acceptable, because though the application was presented by P.W. 2 in

October 1992, till June, 1993 no demand was made by the accused. If really the accused wanted to get any bribe, he would have demanded

money long before June 1993. But even according to the prosecution, the accused has made a demand on 22.6.1993 and received the money

only on 23.6.1993. Therefore, the explanation of the accused that he received the amount of Rs. 250/- towards Flag Day Collection is more

probable and therefore the benefit of doubt must go to the accused and therefore he is entitled to be acquitted. When the amount demanded has

been clearly proved as towards flag Day Collection, there cannot be any motive or reward and consequently no statutory presumption could be

drawn u/s 20 of the Act. In the result, the appeal is allowed. The conviction and sentence are set aside. Fine if any paid is directed to be returned

to the appellant/accused.