Charles Waker Devadas vs State by the Inspector of Police, etc.

N. Arumugham, J.—This appeal is directed against the judgment of the Special Judge and Chief Judicial Magistrate, Trinelveli dated

22.3.1990 made in Special Case No. 2 of 1988, convicting the appellant/accused for the offence u/s 5(2) read with 5(1)(d) of the Prevention of

Corruption Act and sentencing him to undergo rigorous imprisonment for a period of one year with a fine of Rs. 500/-in default to undergo a

further rigorous imprisonment for a period of three months; and for the offence u/s 161, I.P.C. to undergo rigorous imprisonment for a period of

one year and ordering the sentences to run concurrently.

The Appellant was tried for the offence on the allegations that the Appellant employed as Accountant (Assistant) in Karungulam Panchayat Union

at Seidunganallur and being a public servant in such capacity at about 5.30 p.m. on 21.9.1987 at his office demanded a sum of Rs. 100/-. by way

of bribe in consideration to expedite the sanction proceedings to get a sum of Rs. 1000/- as subsidy being the subsidy portion of the loan of Rs.

3,000/- sanctioned to Tmt. Gnanasoundari Ammal under the Massive Agricultural Programme by Bank of Tamil Nadu, Vallanadu Branch and that

on the said basis at about 4.25 p.m. on 23.9.1987 in front of the Office of the District Rural Development Agency, Tuticorin, the Appellant has

received a sum of Rs. 100/- by way of bribe from one Sudalaimuthu Asari husband of Tmt. Gnanasoundari Ammal.

Brief facts of the prosecution case as called out from the evidence and records of the trial Court are stated as follows:

P.W.1 Sudalaimuthu Asari along with his wife Gnanasoundri P.W.7 and his son Nagarajan P.W.4 are the residents of Vallanadu village and P.W.7

owns an extent of 2 acres and odd lands by way of purchase, situated in survey number 274,639 and 452 in patta number 337 as evident from the

certificate issued by P.W.14, the Village Administrative Officer and the certificate Ex.P.28. This land is situated within the Karungulam Panchayat

Union in which P. Ws.5, 6, 18, 19 and 20 are the employees. This land is being looked after by P.W.1 for the purpose of cultivation and

improvement. Being a small farmer, classified in the Revenue records, P.W.7 obtained a loan of Rs. 6,500/- for the purpose of installing a motor

pump set in a joint well situated in the said land and that she has discharged the said loan amount by transferring the deposit amount standing in the

name of P.W.1 subsequently. This is evident from the evidence of P.W.13, the Manager of the Bank, Tamil Nadu Vallanadu Branch and Ex.P.23.

The said discharge was done by transfer of the deposit account of P.W.1 on 14.7.1986 and finally, the said loan was discharged on 1.8.1987. It is

the case of the prosecution that even in getting the said loan thus discharged, it was the Appellant who attended all the papers relating to the said

loan in Karungulam Panchayat Union. Subsequently, P.W.7, appears, to have applied for granting of a loan of Rs. 3,000/-for the purpose of

constructing a pump-set room and the application is Ex.P.24 and the application sent to Karungulam Panchayat Union is Ex.P.15 and that the

order passed by the Panchayat Union has been marked as Ex.P.25 and the letter addressed by the Block Development Officer of the said Union

to the Manager, Bank of Tamil Nadu, for the grant of subsidy is Ex.P.18. On 6.2.1987, P.W.13 forwarded the said application to his head office

and got the sanction for the loan of Rs. 3,000/- on 30.6.1987 and that has been marked as Ex.P.26. Then, on 6.7.1987, he wrote a letter Ex.P.5

to the Commissioner of the Karungulam Panchayat Union requesting for the subsidy for the said loan. P.W.13 has made an endorsement in Ex.P.5

showing the very purpose for which the loan was granted. Since no order has been received from the Karungulam Panchayat Union regarding

subsidy, the bank of Tamil Nadu, Vallanadu branch could not disburse the loan of Rs. 3,000/- to P.W.7. In the meanwhile, P.W.7 wrote Ex.P.27

to the bank requesting to grant the loan of Rs. 3,000/-without any deposit. P.W.6 is the manager working in the Karungulam Panchayat Union

from 12.6.1987. He claims to the factum that in granting the loan to small farmers, l/4th of the same is to be given by way of subsidy and that in the

case of very small farmers 1/3rd of the loan amount is to be granted as subsidy. Accordingly, during the first loan discharged by P.W.7, the

Appellant/accused then working as Village Welfare Officer has recommended for the above subsidy and accordingly as per Ex.P.12, Ex.P.13,

P.14 and P.15 and has forwarded the papers for the sanction of subsidy in favour of P.W.7. The prosecution claims that all the details found in

Ex.P.15 was prepared by the accused/Appellant in the capacity of Village Welfare Officer. On Ex.P.15, the then Co-operative Extension Officer

has recommended for the loan and the B.D.O. has also recommended the same. In Ex.P.10, the Personal Register maintained by the

accused/Appellant, there was no reference about Ex.P.5 though it was handed over to him on 9.7.1987 for further action as per the endorsement

made in the distribution register Ex.P.16 as serial number 6017 but no action was taken upon Ex.P.5. It is the further case of the prosecution that

the accused/Appellant had rounded serial number 6017 but substituted the previous current number 131 of 1986 in its place but even then, he did

not take any further action upon Ex.P.5. The relevant register for the Agricultural Development maintained by the Panchayat Union is Ex.P.6.

Ex.P.5 has been entered at page 62 on 22.9.1986 as evident from Ex.P.8 with the serial number 33/86 referring to Ex.P.5 in particular. With

regard to relating documents Ex.P.5, Ex.P.9, there were no endorsements for further actions taken by the accused nor any note put up by the

accused. P.W.5 has spoken with reference to the above said facts. P.W.19 was working as A5 (Assistant) in Karungulam Panchayat Union Office

for the period upto 19.10.1986 and during the said period he was also attending the subject ''subsidy'' Regarding Ex.P.15, the application for the

subsidy, the Block Development Officer, has sent a certificate Ex.P.25 to the Bank of Tamil Nadu, Vallanadu branch. It is the further case of the

prosecution that in Ex.P.15 and all its connected papers, the accused/Appellant had attended and written everything in his own hand-writing and

signed the same in the capacity of Welfare Officer and further endorsed by the Co-operative Extension Officer on 17.9.1986. In the register

maintained by the Panchayat Union relating to the applications for loan at page 62, the accused/Appellant has written that the loan application given

by P.W.7 has been sent to the Bank of Tamil Nadu as endorsed by P.W.20. According to P.W.20 Planning Office and Project Office is the same

and that has been named as District Rural Development Agency. During 3.7.1987 to 10.7.1987 P.W.10 was incharge of the Block Development

Officer, Karungulam Panchayat Union. During that time, Ex.P.5 came to his perusal and accordingly, he has signed it and after perusal, he claims

that he had called for the Appellant/accused and asked him to send the proposal. As was pointed out by the Appellant/accused, that the purpose

for which the loan was asked for had not been mentioned, the accused/Appellant wanted that application to be returned and accordingly, P.W.10,

returned the said application Ex.P.5 to P.W.1, husband of P.W.7 and that therefore, P.W.10 had scored of his signature subscribed in Ex.P.5.

Then P.W.1, took the application Ex.P.5 to the bank and the bank authorities represented that they would write a proper letter to the Panchayat

Union Office.

In this backdrop, after a lapse of one week, when P.W.1 met the Appellant/accused and asked for the stage of his loan application, it was the

case of the prosecution that he had requested P.W.1 to come after a week and that after another week when P.W.1 asked the Appellant/accused,

he had stated that he did not receive any paper from the bank. So also happened on 21.9.1987. Then, to the narration of P.W.1, P.W.4 his son

wrote a petition in which P.W.1 had put his signature and that petition was sent to the Deputy Superintendent of Police, Vigilance and Anti-

Corruption, Tuticorin. A case was registered as per Ex.P.1 and P.W.1 had signed that he had received the copy of the first information report.

As per the instructions of the Deputy Superintendent of Police, Vigilance and Anti-corruption, P.W.21, the Inspector of Police, registered the

complaint given by P.W.1 Ex.P.1, in V.A.. Cr. No. l of 1987 u/s 1611.P.C. and took up investigation.

At about 11.45 a.m. on 23.9.1987, the Deputy Superintendent of Police, P.W.21 along with one Jeyachandran of Vigilance and Anti-

corruption called upon P.W.2 and one Tamilmani to their office and P.W.21 introduced P.W.1 and P.W.2 to each other. P.W.2 was working as

Assistant Engineer in Tuticorin Tamil Nadu Water and Drainage Board and the said Tamilmani was working as Junior Draughtsman in that office

and both of them read over the contents of Ex.P.1 and verified with P.W.1, the contents of Ex.P.1 and upon doing so, P.W.1 had admitted the

truthness of the contents of Ex.P.1. When P.W.21 asked P.W.1 as to whether he had brought the amount he took Rs. 100/- which consisted of

20 five rupee notes. As requested by P.W.21, P.W.2 counted the same. Then P.W.21, prepared a solution of sodium carbonate in a clean glass

tumbler and tested through P.W.2. M.O.1 are the currency notes above referred. On these notes phenolpthalein powder was spread. Then

P.W.21 explained the role of phenolpthalein test to be conducted. He instructed P.W.1 as to how he should act during the trap. Accordingly, if the

accused received the amount of Rs. 100/- then P.W.1 should come out, take out his spectacles and try to clean the same with border of his dhoti

and that was the signal for P.W.21. Thus setting up everything for the trap and for conducting the pnenolpthalein test including all arrangements, he

prepared mahazar Ex.P.2 in which P.W.21, Deputy Superintendent of Police, Inspector Jeyachandran, P.W.1, P.W.2 and one Tamilmani signed

the same. The numbers of the 20 five rupee notes were also written in Ex.P.2.

After having thus made all the arrangements for the trap, P.W.21 took P. Ws.1, 2 and Tamilmani in a Jeep belonging to the Vigilance and Anti

Corruption at about 2 p.m. on 23.9.1987 and reached Karungulam Panchayat Union Office. After returning from the said office, P.W.1 informed

P.W.21 and others, that the loan clerk/accused had gone to the Project Office at Tuticorin. Then, they went to the Project Office, Tuticorin, and

reached there by 4.15 p.m. and stopped near Thenammal Hospital about 200 feet from the Project Office. P.W.1 had been to the Project Office

as instructed by P.W.21. Some time later, the accused/Appellant came out from the Project Office. Subsequently, P.W.1 came out and

demonstrated the signal of removing his spects and attempting to clean the same with his dhoti. P.W.21 met the Appellant/accused and introduced

himself, P.W.2 and others to him. The accused/Appellant was found shivering. Then, the accused was taken to a place situated in front of ''Sankari

Salt Works'' and where P.W.21 conducted the phenolpthalein test to the accused and questioned him about the money he received from P.W.1.

Accordingly, the Appellant/accused produced M.O.1 series to P.W.21. After verifying the numbers of M.O.1 series in front of P.W.2, he got the

shirt of the Appellant/accused removed and caused the same also for phenolpthalein test and so also for the fingers of the right hand of the

Appellant/accused. Then, after conducting the phenolpthalein test in accordance with the rules, he preserved the Sodium carbonate mixtures and

put them into three bottles marking them as A, B and C.M. Os.3, 4 and 5 are the three bottles. M.O.2 is the shirt subjected to the chemical test,

belonging to the Appellant/accused. P.W.21 prepared a mahazar relating to the test and recovery in which P.W.2, Tamilmani and Deputy

Superintendent of Police have attested. Then, P.W.21 arrested the accused and proceeded to the Panchayat Union Office and recovered the

connected records relating to accused designated as ''A6'' under the cover of mahazar Ex.P.4 attested by P.W.5 and P.W.6. P.W.9 and P.W.10

were examined by the prosecution to show that during the relevant time, the Appellant/accused was incharge of the loan papers to be attended and

forwarded for the grant of subsidy. P.W10 claims that on the day of occurrence but before the arrest, the accused/Appellant came to his Tuticorin

Project Office and attended the papers at his instructions and assured that he would rectify everything in connection with his official work and

papers. P.W.12 claims to the fact that work in general in some of the Panchayats including Karungulam was not completed and that accordingly

P.W.10 had called the accused by telephone. He would claim further that at about 4.30 p.m. on 23.9.1987 when he came out of the Project

Office for the purpose of having a tea, the accused/Appellant followed him and asked him as to what was to be done for the applications for the

previous period and that consequently he instructed him to get a new application and put the old correct number to the same and attend it and that

in the meanwhile, Police came and took the Appellant/accused in front of Sankari Salt Works.

Then P.W.21 released the Appellant/accused on bail and examined the witnesses. He visited the Project Office at Tuticorin, prepared a rough

sketch Ex.P.32. Then, he sent a requisition to the Court to sent M.O.3 to M.O.5 for chemical analysis. P.W.11 on the receipt of requisition

Ex.P.20 sent M. Os.3 to 5 for chemical analysis with the covering letter of the learned Magistrate, the office copy of which has been marked as

Ex.P.21. P.W.15 spoke about the receipt of M. Os.3 to 5 for chemical analysis. The relevant analysis report has been marked as Ex.P.22.

P.W.21 sent the seized case records under Ex.P.4 to the court and examined further witnesses. P.W.16 spoke to the factum of the report sent by

the Director of Vigilance and Anti Corruption to the District Collector with his official note and according to him, the District Collector has pursued

all the records and gave the sanction to prosecute the Appellant/accused under Ex.P.29. On receipt of Ex.P.29, sanction for prosecution, P.W.21

laid the final report against the accused for the offences under the sections above referred.

When the accused was examined u/s 313, Cr.P.C, with regard to the incriminating circumstances appearing against him in evidence, he had

denied his complicity in the crime. He did not choose to examine any witnesses on his behalf but had filed a written statement.

Though 21 witnesses were examined by the prosecution, P.W.1 and P.W.3 did not support the prosecution and accordingly, they were treated

as hostile during the trial. On assessing the entire oral evidence adduced through P. Ws.1 to 21 and the documentary evidence through Ex.P.1 to

P.32 and M. Os.1 to 5 relied on by the prosecution, the learned trial Judge, after elaborate discussion in his lengthy judgment has found the

Appellant/accused guilty for the offences for which he was tried, convicted and sentenced him as noted supra. Aggrieved, the Appellant has come

forward with this present appeal.

Mr. Masood, learned Counsel appearing for the Appellant, among the grounds urged in the grounds of appeal, relied on the following two

grounds in attacking the impugned judgment:

1) That the evidence of P.W.1, who is the author of Ex.P.1, demolishes the whole fabric of the prosecution case as he has not supported the case

of the prosecution by claiming so specifically that the Appellant/accused never demanded the bribe nor that he received any amount M.O.1 series,

as bribe from him on the day of occurrence and that he himself has voluntarily pocketed M.O.1 series into the pocket of the Appellant/accused

and that therefore, the very avert act of the Appellant/accused, in receiving the bribe as contemplated in the relevant provisions of law has not been

proved nor established by the prosecution, which casts a serious and grave doubt on the prosecution case and the benefit of the same should go in

favour of the Appellant/accused herein.

While so submitting, the learned Counsel contended that the evidence given by P.W.2 and other prosecution witnesses does not provide any

corroboration nor establish any circumstances totally adverse to the applicant but on the other hand, provides the prosecution to a vacuum,

particularly with reference to the overt acts of the Appellant/accused and that therefore, the prosecution case against the Appellant is to be

rejected.

2) That Ex.P.29, the sanction order given by the District Collector on 6.7.1988 is not valid in law as the sanctioning authority has not applied his

mind while according the sanction to prosecute the Appellant herein.

Per contra, Mr. Sriramulu, learned Public Prosecutor, countered the same by contending that though P.W.1, the author of Ex.P.1 did not

support the prosecution case and consequently, he was treated as hostile in cross-examination, the prosecution had established that there are

clinching circumstances which clearly establish the guilt and complicity of the accused/Appellant and that the conflicting evidence of P.W.1 before

the witness box was the result of his being won over by the Appellant subsequently, and therefore, his evidence before the trial Court, cannot

render the whole prosecution case as false. In other words, the Public Prosecutor submitted that inasmuch as Ex.P.1 and its contents were

admitted and not controverted in any other manner, the aspect that P.W.1 did not support the prosecution does not affect the prosecution in any

manner and that therefore, the learned trial Judge was perfectly right in finding the Appellant guilty for the offences with which he was charged.

With regard to the second point raised by the learned Counsel appearing for the Appellant, learned Public Prosecutor countered the same and

contended that Ex.P.29, the sanction was accorded by the District Collector, the head of the administration of the District by perusing all the

relevant papers and records produced before him and after having fully satisfied with the investigation records and everything and applying his mind

in full, he accorded sanction and a mere perusal of the same itself proves that it is a valid sanction and that therefore, the attack upon Ex.P.29

cannot at all be sustained.

In the light of the above rival contentions, the only point that arises for consideration is whether the prosecution has established the guilt and

complicity of the Appellant beyond the realm of doubt as contemplated by law?

From the oral evidence adduced through P. Ws.1 to 21, coupled with the documentary evidence Ex.P.1 to Ex.P.32, as extracted by the

learned trial Judge, it is seen that the Appellant was working as Loan Assistant in Karungulam Panchayat Union and that on prior occasion, he was

working as Welfare Officer of the same Union and that during the said period, P.W.1 was able to obtain a loan of Rs. 6,500/- from the Bank of

Tamil Nadu, Vallanadu branch as recommended and forwarded by the Karungulam Panchayat Union Office and that subsequently, it was

discharged wholly by P.W.1 and P.W.7. It is seen further that for a further loan sought for by P.W.1 in the name of his wife P.W.7, to the extent

of Rs. 3,000/-, a subsidy of Rs. 1,000/- was also sought for, as per the various schemes projected and implemented by the Karunguam Panchayat

Union, as evident from the claim made by the prosecution witnesses. The further fact that the Appellant was working only as Loan Assistant in the

Panchayat Union Office is admitted by the prosecution. Therefore, there is no difficulty at all to hold that the Appellant is not the final or sanctioning

authority for the subsidy of Rs. 1,000/- as requested by P.W.1 but only an assistant, expected to process the said paper through the established

procedure to the higher authorities. The further fact that the application Ex.P.5 requesting the subsidy by P.W.7 was being attended by P.W.1, her

husband to get it finalised was also not in controversy in any manner. At this stage, it is pertinent to refer to the evidence of P.W.10, who was

working as Accountant in the Rural Development Agency, Tuticorin, from 11.9.1987 to 24.6.1988. His evidence shows that he has also worked

as Deputy Block Development Officer of Karungulam Panchayat Union from 3.6.1987 to 3.7.1987 and that during that time, the Appellant

worked as an Assistant ''A6'' in the said office. His claim before the trial court was that while he was working as Deputy Block Development

Officer, Ex.P.5 came to his perusal and in taken of which, he put his initial in the same and that after perusing the same, he called for the proposal

from the Appellant but however as the Appellant stated that Ex.P.5 was to be returned for the reason that the purpose for which the loan was

sought had not been mentioned therein and that therefore for the said reason, P.W.10 had returned the said Ex.P.5 to P.W.1 and that he had

scored out his initial put therein.

It was the further claim of this witness that at about 4.15 p.m. on 23.9.1987, when he came out of the Project Office, he was followed by the

Appellant and during that time he had seen P.W.1 talking with the Appellant and that afterwards, when he and the Appellant were waiting for the

tea ordered by them, the Appellant had asked P.W.1 as to what action should be taken for the loan applications submitted during the previous

year as the procedures to deal with the same had since been changed and that for which, P.W.10 had instructed him to get a new application from

the concerned person and put therein the old sanction order so as to get the sanction for subsidy. It was his further claim that after the talk held by

P.W.1 with the Appellant, another person, namely the President of the Milk Society, had also talked with the Appellant and then only both were

waiting for the tea. It was at this juncture, Police came and took the Appellant for the purpose recovery of M.O.1 series, the alleged bribe money,

the phenolphthalein test and so on. On a careful perusal of the entire claim made by P.W.10 and the other official witnesses examined by the

prosecution, it was made very clear that the Appellant is not the final or sanctioning authority for the subsidy sought for by P.W.1 for the

sanctioned loan amount of Rs. 3,000/- on the second occasion under Ex.P.5 but only an Assistant expected to attend the process alone and that

since the said application Ex.P.5 was an old one returned by P.W.10 for proper compliance to P.W.1, he had further instructed the applicant

regarding the procedure to be adopted for getting the sanction of subsidy expeditiously.

With regard to the first contention raised by the learned Counsel for the Appellant, but for the non-supporting performance of P.W.1 before

the trial Court, I do not propose to enter into the controversy by means of scanning the whole evidence. However, it is seen that P.W.1 as the star

witness who had given Ex.P.1 to the Police on 23.9.1987 and whereupon, the whole process of the trap by the Vigilance Police, had been

schemed out and carried on. Since P.W.1 the author of the complaint Ex.P.1 did not support the prosecution nor the trap of the overt act by the

Appellant, it is seen that the learned trial Judge has considered very elaborately the probative value of Ex.P.1, the written complaint, the other oral

evidence and the circumstances brought out in the instant case and upon the basis of which, he has found the Appellant guilty. The reasoning for

such conclusion by the learned trial Judge was based mainly on Ex.P.1. It was admittedly written by P.W.4, the son of P.W.1 to his narration and

that on the said score P.W.1 and P.W.4 had admitted about the factum of the said complaint with reference to its contents. With regard to the

contents of the said complaint, P.W.7 the wife of P.W.1 has been examined. At this stage, it has become necessary to note that P.W.1 has not

been cross-examined with reference to the claim of P.W.7 and the factum of giving the complaint and so on and that inasmuch as P.W.7 has not

claimed by means of oral evidence that P.W.1 told her that he had given a complaint to the Police, in my firm view, that part of the evidence given

by P.W.7 is only ''hearsay'' and as such cannot be deemed to be admissible evidence in law. Therefore, it is seen that there remains the evidence of

P. Ws.1 and 4. It has to be noted that P.W.1 and P.W.4 have admitted the factum of giving Ex.P.1 to the Police which has been registered. But

since the author of Ex.P.1, namely, P.W.1, was treated as hostile and did not speak to the contents of Ex.P.1, the whole controversy as contended

by the Bar arises in this case. To elucidate the rationale of Ex.P.1, in the context of the diversified and changed theory of P.W.1, it has become

necessary to extract the relevant portion of the contents made in Ex.P.1, which runs as follows:

The portion above referred to found in Ex.P.1 was admittedly written by P.W.4 to the narration of P.W.1, and it was addressed to the Deputy

Superintendent of Police, Vigilance and Anti Corruption, Chidambaranar District. On the receipt of the said complaint, it is seen that the concerned

Deputy Superintendent of Police had instructed P.W.21 to register the same into a case u/s 161 I.P.C. and investigate the matter. With regard to

the above said complaint, P.W.2, working as an Assistant Engineer in Tamil Nadu Water and Drainage Board had claimed that he had verified the

contents of the same by questioning P.W.1 and as admitted by him, he found out that it was correct. But however, the above portion of the

contents given by P.W.1 was completely reciled by P.W.1 while in the witness box.

P.W.1 during his performance before the trial Court has claimed as follows:

He would further add about his conduct during his cross-examination that upon his complaint a Head Master and a Tahsildar were transferred

already and that if Government servants were not acting according to his whims and fancies, it was his habit to lodge complaints against them. He

would further qualify during his cross-examination that because of his lodging the complaint Ex.P.1, out of fear, he had thrust M.O.1 series into the

pocket of the Appellant. In other respects, P.W.1 owns the contents of Ex.P.1, his statement before the Police. On a mere glance of the impugned

judgment by the trial Court, it is apparent that the learned trial Judge has disbelieved the changed version of P.W.I but however, held that the

contents of the written complaint Ex.P.1 must be true as it was given by P.W.I voluntarily to the Deputy Superintendent of Police at whose

instruction, the case was registered and the whole trap was carried out. It is the well settled principle of law that the evidence of an hostile witness

need not be rejected in toto as he has not supported the prosecution and has turned hostile and that the Court can rely on such portion of his

evidence if found and satisfied but it must be true and upon the basis of which the Court can base its conviction in a criminal case and that the rest

can be rejected as having no bearing on the case. It is manifest that the learned trial Judge has followed the same legal ratio and that with regard to

the same rationale, there cannot be any dispute or controversy.

But however, it has to be seen that if at all Ex.P.1 is to be accepted and believed for any purpose as spoken to by P.W.1, 2 and 21 in the

context that P.W.3 also turned hostile, it may proceed to establish the fact that there was a demand for bribe or illegal gratification by the Appellant

from P.W.1 and nothing else. The very contents of Ex.P.1 would project the demand of the bribe by the Appellant made on 21.9.1987 at the

Panchayat Union Office situated at Karungulam and nothing else .So far as the overt act of the Appellant for the offences alleged is concerned,

there is not even an iota of evidence direct, adduced by the prosecution. P.W.3 turned hostile: P.W.2, though a responsible State Government

Officer, did not claim anything about the payment of M.O.1 series to the Appellant by P.W.1 at about 4.25 p.m. on 23.9.1987 in front of the salt

grinding factory at Tuticorin. The only evidence available in this case to the necessary overt act is that of P.W.1 alone but unfortunately, he never

supported the prosecution case. His clinching and specific claim was that the Appellant never demanded the bribe nor he had paid the bribe of Rs.

100/- M.O.1 series but he thrust M.O.1 series into the packet of the Appellant voluntarily and that by questioning as to why he had thrust

something into his pocket when the Appellant took the same and verified, Police came and took him. Therefore, the evidence given by P.W.1 did

not project any of the passing of money M.O.1 series by P.W.1 to the Appellant nor he received the bribe as alleged by the prosecution. It is thus

seen, that the very evidence by P.W. 1, who set the law in motion for laying the trap against the Appellant, is totally missing in establishing the

complicity and overt act of the Appellant for the offences alleged against him. In this context, I may mention that the learned trial Judge has totally

mistook the contents of Ex.P.1 into the realm of complicity of the Appellant/accused which is not correct, in my firm view, for the reason that the

entire Ex.P.1 projects to an incident that happened on 21.9.1987 and not on the day of occurrence, namely, on 23.9.1987. It is rather strange to

see that the very contents of Ex.P.1 was taken as a direct evidence to prove the complicity of the Appellant, which happened on 23.9.1987 but

however, the same has been totally rescaled and denied by P.W.1 himself. At this juncture, it is seen that the defence taken by the Appellant was

that when he came out of the Project Office and was waiting for tea ordered, P.W.1 came and thrust M.O.1 series in his pocket and that when he

took out the same and verified as to what it was, Police came and took him, conducted the chemical test and recovered the said currency and that

he never received any bribe from P.W.1.

It is also relevant to note that among the attestors of Ex.P.3, the mahazar which narrates the whole occurrence, P.W.2 alone has corroborated

it. P.W.3 did not support the prosecution. Except P.W.2 non-else has been examined to support or corroborate P.W.1. As was elaborately

discussed and considered by the learned trial Judge, there is overwhelming and abundant evidence for the concept of recovery of M.O.1 series

and the conduct of phenopthalein test. There was no controversy projected by the Bar with regard to the subsequent events to the occurrence. But

however, as I have already referred, the only circumstances which assumes every significance is whether P.W.1 has given M.O.1 series at the

relevant day and time of occurrence and the Appellant has received by way of bribe? I have already referred to above and my considered opinion

and view upon the careful perusal of the factual aspects and evidence spoken to by the prosecution, is that there is no iota of evidence of

circumstance proved or established by the prosecution to show the complicity and the guilt of the accused in receiving a sum of Rs. 100/-from

P.W.1 by way of bribe and that even so ,the explanation by means of evidence given by P.W.1 is so cornicing, acceptable and has not been

controverted in whatever manner and that as much, the evidence of P.W.1 can be safely accepted.

Learned Public Prosecutor has contended that the recovery of M.O.1 series coupled with M.O.2, M.O.3 and M.O.4, M.O.5 under the cover

of mahazar Ex.P.3 prepared by P.W.21 attested by P.W.2 and others and the giving of complaint Ex.P.1 to the Deputy Superintendent of Police

of Vigilance and Anti Corruption, the registering of the same, the preparation of Ex.P.2 mahazar, and the trap that followed as spoken to by

P.W.2, a responsible Officer of the State Government are the circumstances clearly established by the prosecution to prove the guilt and

complicity of the Appellant and that P.W.1 turned hostile because he was made to oblige for the Appellant. With great constraint, I am not inclined

to endorse the said argument advanced by the Public Prosecutor for the simple reasoning that the consistent claim of P.W.10 who was all along

very close and nearby to the Appellant just prior to the arrest of the Appellant by the Police on the day of occurrence does not support the claim

of P.W.2. As I have already observed that the Appellant was not the sole authority and the designated person to sanction subsidy and he need not

expect any bribe or illegal gratification for sanctioning the subsidy sought for. That apart, the trap set up by the police upon the registering of Ex.P.1

was intended only at the Panchayat Union Office at Karungulam but however, it is seen that the same has been carried out at Tuticorin in front of

the Project Office. The explanation given by P.W.1 that because he had lodged Ex.P.1 to the Police, out of fear, he had thrust M.O.1 series into

the pocket of the Appellant voluntarily on the day of occurrence cannot be eschewed so lightly. Viewed from this angle, it is noticed that the

learned trial Judge has not bestowed his attention on the above said legal aspects but however, it appears that he has proceeded to hold that the

prosecution had established all circumstances projecting the guilt of the accused only on the basis of pure imaginations, conjectures and surmises,

which cannot be sustained, in my considered view. In this regard, I am satisfied to endorse my view to the contentions raised by the learned

Counsel for the Appellant on the first point.

With regard to the procedure adopted in the receipt of the loan application and the process to be undertaken for the sanction, the same

including to subsidy under various schemes as spoken to by the prosecution witnesses since there is no controversy but remains undisputed as was

discussed by the learned trial Judge, I do not propose to traverse the same once again, which are unnecessary for the purpose of disposal of this

appeal.

In Suraj Mal v. State (Delhi Administration) (1980 M.L.J (Crl.) 73) the Supreme Court has observed as follows:

It is well settled that where witnesses make two inconsistent statements in their evidence either at one state or at two stages the testimony of such

witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence

of such witnesses.

Mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused u/s 5(2) of the Prevention

of Corruption Act and Section 161, Indian Penal Code, when the substantive evidence in the case is not reliable.

The Delhi High Court in Anand Sarup v. State (1988 Cri.L.J. 756) has also held as follows:

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.

It is thus seen that since the recovery of M.O.1 series in the instant case from the Appellant as claimed by the prosecution witnesses

consistently is of no consequence available totally adverse to the Appellant herein in establishing his guilt and complicity for the offences alleged in

the context of the specific and consistent claim of P.W.1 before the trial Court. Thus having considered every aspects of the oral and documentary

evidence and other established circumstances, I am of the firm view that there is every force in the contentions raised by learned Counsel for the

Appellant on the first point and consequently, I am totally unable to accept the contentions made by the learned Public Prosecutor in this regard.

Coming to the second contention raised by the learned Counsel for the Appellant regarding the validity of sanction order Ex.P.29, which is a

legal question, I have to extract the contents of it, which is as follows:

PROCEEDINGS OF THE COLLECTOR, CHIDAM- BARANAR DISTRICT, TUTICORIN.

Present: Thiru. R. Arumugham, I.A.S. Roc. Val/77495/87

Dated: 6.7.1988

Sub: Sanction to prosecute in a Court of Law Thiru D. Charles Walker Devadoss, M.A.P. Accountant (Assistant) of Karungulam Panchayat

Union at Seidunganallur in Chidambaranar District.

Ref: Report of Director, Vigilance and Anti-corruption, Madras in Rc. No. 62/87/RDP/CD, dated 30.9.87 and connected materials.

ORDER:

Whereas, the accused Thiru D. Charles Waker Devadas was working as the Accountant (Assistant) Massive Agricultural Programme, in the

Office of the Karungulam Panchayat Union at Seidunganallur in Chidambaranar District and he is a Public Servant.

Whereas it is alleged that on 21.9.87 at about 17.30 hours at the Office of Karungulam Panchayat Union at Seidunganallur the said Thiru D.

Charles Waker Devadas demanded a sum of Rs. 100/- as gratification other than legal remuneration from Thiru M. Sudalaimuthu as a motive for

expediting action for sanction of Rs. 1000/- being the subsidy portion of the loan of Rs. 3,000/- sanctioned to Tmt. Gnanasoundari Ammal w/o the

said Thiru M. Sudalaimuthu by Bank of Tamil Nadu, Vallanadu Branch under the Massive Agricultural Programme and in pursuance of the said

demand, on 23.9.87 at about 16.25 hours in front of the Office of the District Rural Development Agency (also called as Project Office)

Chidambaranar District, Tuticorin accepted a sum of Rs. 100/- from Thiru M. Sudalaimuthu, as gratification other than legal remuneration as a

motive for the purpose mentioned above.

Whereas it is further alleged that in the course of the same transaction and at the above said place, date and time, Thiru Charles Waker Devadas

being a Public Servant viz, Accountant (Assistant) Massive Agricultural Programme, Karungulam Panchayat Union Office at Seidunganallur by

corrupt or illegal means or otherwise abusing his official position as such public servant, obtained for himself a sum of Rs. 100/- as pecuniary

advantage from the said Thiru. Sudalaimuthu under the circumstances mentioned above.

""Whereas the above said acts constitute offences u/s 161 I.P.C. and 5(1)(d) r/w 5(2) of the Prevention of Corruption Act 1947.

And whereas, I Thiru R. Arumugam, I.A.S., Collector, Chidambaranar District being the authority competent to remove the said Thiru D.

Charless Walker Devadas, Assistant, Massive Agricultural Programme, Accountant of Karungulam Panchayat Union at Seidunganallur in

Chidambaranar District from office, after carefully and fully examining the materials and records placed before me in regard to the said allegations

and circumstances of the case, I am fully satisfied that the said Thiru D. Charles Waker Devadas should be prosecuted in a Court of law for the

above said offences.

Now, therefore I do hereby accord sanction u/s 6(1)(c) of Prevention of Corruption Act, 1947 (Act II of 1947) for the prosecution of the said

Thiru D. Charles Walker Devadoss for the said offences and for the taking of cognizance of the above said offences by a court of competent

jurisdiction.

Sd./

6.7.88

To

The Director of Vigilance and Anti-Corruption, Madras.

In paragraph 5, the relevant portion are seen in these words:

And whereas, I Thiru R. Arumugam, I.A.S., Collector, Chidambaranar District being the authority competent to remove the said Thiru D.

Charless Waker Devadas, Assistant, Massive Agricultural Programme, Accountant of Karungulam Panchayat Union at Seidunganallur in

Chidambaranar District from office, after carefully and fully examining the materials and records before me in regard to the said allegations and

circumstances of the case, am fully satisfied that the said Thiru D. Charles Waker Devadas should be prosecuted in a Court of law for the above

said offences.

In giving the above sanction as found in paragraph 5 of Ex.P.29, it appears that the sanctioning authority had merely repeated the allegations made

in the charge sheet leading to the offences framed against the Appellant herein alone. But however in the above order, there was a reference made

in same pertaining to the report of the Director of Vigilance and Anti-Corruption, Madras in Rc. No. 62/87/RDP/CD dated 30.9.1987 and

connected materials. Taking advantage of this reference filed, learned Public Prosecutor contended that the sanctioning authority, viz. the District

Collector has passed the order by applying his full mind to the entire report forwarded by the Director of Vigilance and Anti- Corruption and that

as such, the sanctioning authority arrived at its full satisfaction of the prima facie case found detected against the Appellant and therefore, accorded

the sanction under Ex.P.29. This concept was seriously controverted by the learned Counsel for the Appellant by stating that the sanction order

was a mere mechanical one and the sanctioning authority has not applied its mind nor gave any reasons for according sanction.

In Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, Supreme Court has laid down the legal ratio in this regard which is as follows:

It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for

sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself

contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the

Sanctioning Authority and the satisfaction arrived at by it. Any case instituted without a proper sanction must fail because this being a manifest

defect in the prosecution, the entire proceedings are rendered void, abinitio. What the Court has to see is whether or not the Sanctioning Authority

at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same: any subsequent fact which may

come into existence after the grant of sanction is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a

solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied

with before any prosecution can be launched against the public servant concerned.

Following the ratio of the Apex Court, this Court in Periyasamy v. Inspector, Vigilance & Anti-Corruption, Tiruchirappalli (1992 L.W. (Crl.) 582),

has held that the sanction order given by authority to prosecute an accused under the Prevention of Corruption Act is not an empty formality but it

should be after full satisfaction on the basis of the materials and evidence made available with regard to the allegations made against the particular

accused and that the non giving of any reasons pertaining to the grounds of satisfaction amounts to invalidate the sanction order itself and not in

accordance with law.

The Allahabad High Court in Har Bharosey Lal Vs. State of U.P., ) has also observed that Court cannot act on surmises or conjectures nor will

have to be guided by extraneous considerations or matters which are not on record. The grant of sanctions is not an idle formality but a solemn and

sacrosanct act which provides protection to public servants against frivolous prosecutions .This requirement of law has not been complied with

before launching prosecution against the Appellant.

It is thus seen that in according sanction to a prosecution as contemplated u/s 6 of the Prevention of Corruption Act, the sanctioning authority

should necessarily apply its mind and get itself satisfied that a case for sanction has been made out, constituting the offences. The prosecution has

to prove this in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of

satisfaction and (2) by adducing evidence aliunde to show that facts placed before the Sanctioning Authority and the satisfaction arrived at by it. A

case instituted without adopting the above referred legal concept and ingredients must necessarily fall because this being a defect manifest in the

prosecution and as such, the entire proceedings are rendered void ab initio. Though a report of the Director of Vigilance and Anti Corruption with

particular reference number has been referred to in the column of ''reference'' to Ex.P.29, and in paragraph 5 ''careful and full examination of the

materials and records'' placed before the sanctioning authority was referred to, it is manifest and apparent that it is not known what are all the

documents that have been relied upon by the Sanctioning Authority to arrive at the satisfaction and what are all the grounds of satisfaction, are

totally absent in this case. Above all, evidence aliunde involved in this case prostrating the facts leaving to the offence before the Sanctioning

Authority and his perusal of the same is also absent totally in this case. In short, I would like to add that the sanctioning authority has not applied its

mind with reference to the evidence leadings to the facts constituting the offence committed by the Appellant herein and whereupon, he has

accorded the sanction. There is nothing available in Ex.P.29 to show that the Sanctioning Authority has applied its mind fully with reference to such

of the documents and evidence aliunde in according the sanction as observed by the Apex Court in the above referred citations. Though P.W.16,

Sherishtadar, working in the Development Sections of the Collectorate of Chidambaranar District was examined, who speaks about the placing of

the report and other document before the District Collector with a note and that the District Collector after perusing the same has accorded the

sanction, his part of the evidence does not find place in Ex.P.29, therefore, under the circumstances referred to above, I am fully satisfied to hold

that the legal mandate laid down by the Apex Court, in according sanction to prosecute under the Prevention of Corruption Act, the proper

procedure has not been followed in this case and that therefore, Ex.P.29 is not a valid document. In the result, the proceedings are void ab initio.

Nothing was contended on behalf of the prosecution in support of the oral evidence given by P.W.16. Even so, in the context of the legal ratio

clearly spelt out by the Apex Court in first citation referred to above, Ex.P.29 is to be held as not valid for the non-mentioning of any grounds of

satisfaction or the details of evidence of aliunde produced before the sanctioning authority.

Per contra, learned Public Prosecutor in support of his contentions that Ex.P.29 is valid document relied on the case law in Indu Bhusan

Chatterjee Vs. The State of West Bengal, for the position that if the evidence produced before the sanctioning authority however shows that he has

perused and went through all the papers placed before him which gave him the necessary material upon which he decided that it was necessary in

the ends of justice to accord his sanction. In The State of Rajasthan Vs. Tarachand Jain, , Supreme Court has observed as follows:

The burden of proof that the requisite sanction had been obtained rests upon the prosecution. Such burden includes proof that the sanctioning

authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face

of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before

the sanctioning authority.

Learned Public Prosecutor then relied on the decision of the Apex Court in State of Tamil Nadu Vs. Damodaran, ) for the position that a perusal

of the report of the Director of Vigilance and Anti Corruption by the Sanctioning Authority is valid in law and deemed to have been accorded after

fully applying its mind arid satisfying the existence of the prima facie case against the accused.

With great respect, on a careful perusal of the above case law, I am totally unable to persuade myself to accept the contention of the learned

Public Prosecutor in the context that it is not known as to what are all the documents amounting to the evidence aliunde leading to the facts

involved in this instant case had been perused and examined carefully and fully by the sanctioning authority before according sanction under

Ex.P.29 and it is further not known as to what are all the grounds on which the satisfaction was arrived at by the sanctioning authority before

according sanction so as to make the above legal ratios applicable to the instant case. A mere reference to a report with current number of the

Director of Vigilance and Anti Corruption alone does not amount to the application of mind in full by the sanctioning authority in as much as the

grounds of satisfaction and the details of the documents that formed part of the materials placed before him has not been mentioned in the sanction

order. Therefore, the above case law relied on by the Public Prosecutor will not render any assistance or help to the prosecution. On this ground,

for the opinion of my reasonings given above, I am of the firm view in observing that Ex.P.29 is not a valid sanction order as contemplated by

Section 6 of the Prevention of Corruption Act itself and that the sanctioning authority has given Ex.P.29 without applying his mind with reference to

any grounds of satisfaction or evidence aliunde constituting the offence against the Appellant herein and accordingly, the entire proceedings are

void ab initio as it is without a valid and proper sanction. No other points were argued before me in this appeal.

For the reasons in my foregoing observations and discussions with reference to all the oral and documentary evidence and materials, in the

context of the rival contentions and established facts, I am fully constrained to hold that the prosecution has virtually and miserably failed to

establish the guilt and complicity of the Appellant in the crime and that there is serious doubt inherent in the case of the prosecution and it should go

necessarily in favour of the Appellant.

In the result, the appeal succeeds. and is accordingly allowed. Conviction and sentence recorded by the learned trial Judge in Special Case

No. 2 of 1988 are hereby set aside. Fine amount if any paid by the Appellant is ordered to be refunded immediately the bail bonds shall stand

cancelled.