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Judgment
Aruna Jagadeesan, J.—This Criminal Appeal is filed against the judgment of conviction and sentence dated 6.11.2006 made in Special
Case. No. 5/2003 by the learned Special Judge Cum Chief Judicial Magistrate, Dindigul, thereby convicting and sentencing the Appellant for the
offence u/s 7 of the Prevention of Corruption Act to undergo six months Simple Imprisonment and to pay a fine of Rs. 1000/-, in default to
undergo two months Simple Imprisonment and for the offence u/s 13(2) read with 13(1) of the Prevention of Corruption Act to undergo one year
Simple Imprisonment and to pay a fine of Rs. 1000/-, in default to undergo three months Simple Imprisonment and ordering the sentences to run
concurrently. The case of the Prosecution is as follows:-
a. PW. 2 Ponraj, who is residing at Kannivadi Village, along with his community people, formed a Sangam under the name and style of ""Kuravar
Nala Samudhaya Nala Sangam"". PW. 2, who is the Secretary of the said Sangam, along with PW. 4 Muniandi, who is the President of the said
Sangam, made an application Ex. P2 along with the bylaws of the Sangam for registration of the said Sangam to the District Registrar, Dindigul on
3.10.2002 at 10.00 a.m. The Appellant/accused, who was working as an Assistant in the said Office, received Ex. P2 and asked PW. 2 to get the
signature of the Superior Officer and accordingly, PW. 2 after obtaining signature of the Superior Officer, gave the application Ex. P2 to the
Appellant. The Appellant demanded Rs. 555/- towards registration fee and further asked a sum of Rs. 400/- as bribe money. PW. 2 gave only Rs.
555/- to him towards registration fee. The Appellant, saying that only on receipt of Rs. 400/-, he would register the Sangam, returned Rs. 555/-
and Ex. P2 to PW. 2 and thereafter, PW. 2 left the said Office. Again on 10.10.2002 at 11.00 a.m. PW. 2 went to the said Office and gave Ex.
P2 and the registration fee of Rs. 555/-. The Appellant asked him whether he brought Rs. 400/-, for which, PW. 2 expressed his inability to give
Rs. 400/- as he is from the downtrodden community. Then, the Appellant demanded to give at least Rs. 300/- and said that on receipt of such
amount only, he would register the Sangam and again returned back Ex. P2 and Rs. 555/- to PW. 2. Thereafter, PW. 2 left the said Office and
went to his house and asked PW. 4 to come to his house and informed the same to PW. 4. PW. 4 gave Rs. 300/- to PW. 2 and left the house.
Since PW. 2 was unwilling to pay any bribe money, he made a complaint Ex. P3 on 10.10.2002 at 4.15 p.m. to PW. 9 Inspector of Police,
Vigilance and Anti Corruption Department, Dindigul.
b. On receipt of Ex. P3, PW. 9, after enquiring PW. 2, registered a case in Cr. No. 5/2002 u/s 7 of the Prevention of Corruption Act and
prepared First Information Report Ex. P4 and arranged for a trap proceedings. Then, PW. 9 asked PW. 2 to bring Rs. 555/- and Rs. 300/- on
next day at 8.00 a.m. and recorded his statement and sent copies of Ex. P4 and Ex. P3 to the concerned court. PW. 9 summoned two
independent witnesses PW. 3 Superintendent of the Directorate of Agricultural Department and one Manoharan, Superintendent of Forest and
introduced them to PW. 2 and explained the matter to them. PW. 9 asked PW. 2 to produce the bribe amount and PW. 2 gave Rs. 300/-, six
currency notes (MO. 1 Series) of Rs. 50/- denomination to him and noted the numbers of the same in the mahazar Ex. P5. Thereafter, PW. 9
demonstrated the phenolphthalein test and also explained the significance of the test to PW. 2 and the other two independent witnesses. PW. 2
kept the currency notes of Rs. 300/- smeared with phenolphthalein powder in his left inner shirt pocket and kept the currency notes of Rs. 555/- in
his left outer shirt pocket. PW. 9 asked P.W. 2 to hand over the tainted amount to the accused, if he made a demand of the same and also told
them that if the accused accepted the money, he should come out of the Office and give a pre-arranged signal, by combing his head by hand.
Thereafter, PW. 9 obtained the signatures of PW. 2 and the other witnesses in Ex. P5.
c. Thereafter, along with the trap party, at 11.00 a.m. PW. 9 proceeded in two jeeps and dropped them in the Dindigul Bus Stand. At about
11.20 a.m., when PW. 2 went inside the Office, the Appellant asked PW. 2 to come at 1.20 p.m. as there was inspection going on by the
Inspector General of Registration and thereafter, PW. 2 and PW. 3 came out of the Office and informed the same to PW. 9. Again, PW. 2 and
PW. 3 went inside the Office at 1.45 p.m. and the Appellant asked PW. 2 whether he has brought the amount of Rs. 555/- and PW. 2 gave Rs.
555/- and the Appellant put the said amount on the Register kept on the table and asked PW. 2 whether he brought the amount of Rs. 300/-. Then
PW. 2 gave the tainted notes of Rs. 300/- to the Appellant. The Appellant put it inside the right side table drawer. Then, the Appellant asked PW.
2 to come after a week. PW. 2 and PW. 3 came out of the Office and gave the prearranged signal. On seeing the prearranged signal, PW. 9 and
the witness Manoharan along with police party went inside the Office. On identifying the Appellant by PW. 3, PW. 9 introduced himself to the
Appellant. On being questioned by PW. 9 as to whether he has received the bribe money, he agreed that he received the bribe amount.
Thereafter, PW. 9 sent PW. 2 out of the office and prepared sodium carbonate solution in two glasses and asked the accused to dip the fingers of
both hands separately. The solutions, in which both the right and left hand fingers were dipped, turned pink. PW. 9 seized the tainted notes MO. 1
(Series) and then sealed the bottles after pouring the solution in those bottles, M.O. 2 and M.O. 3 under mahazar Ex. P6. On comparing the
numbers of the seized tainted notes with that of the numbers mentioned in the mahazar, it tallied. Thereafter, after verifying the documents relating
to Sangam, PW. 9 seized Ex. P9 Register and Ex. P10 notes in the O-Register under a mahazar and obtained the signatures of the witnesses in the
said documents and prepared a rough sketch Ex. P7.
d. Thereafter, PW. 9 went to house of the Appellant and made a search in the house and prepared a search mahazar Ex. P8 and obtained the
signatures of the Appellant and the witnesses. Thereafter, he arrested the Appellant and sent him for judicial custody. Then, PW. 9 handed over
the file to PW. 10 Inspector of Police, Vigilance and Anti Corruption, Dindigul for further investigation.
e. On 12.10.2002, PW. 10 took up the case for further investigation and examined the witnesses and recorded their statements and sent the
solutions for chemical test. On 28.3.2003 PW. 10 sent the final report to the Office of the Director of Vigilance and Anti Corruption, Chennai.
PW. 11 Inspector of Police, Vigilance and Anti Corruption, Dindigul took up the case for further investigation. After completing investigation and
after receiving chemical analysis report and after obtaining sanction Ex. P1 laid a charge sheet against the accused under Sections 7 and 13(2) read
with 13(1)(d) of the Prevention of Corruption Act on 04.12.2003.
The case was taken on file in Special Case. No. 5/2003 by the learned Special Judge Cum Chief Judicial Magistrate, Dindigul and necessary
charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 11 witnesses (PW. 1
to PW. 11) and also relied on Exs. P1 to P19 and three material objects (Mos. 1 to 3).
On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 Cr.P.C. as to the incriminating circumstances
found in the evidence of prosecution witnesses and the accused denied the same as totally false. On the side of the defence, DW. 1 and DW. 2
were examined and Ex. D1 and D2 were marked.
The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the appellant
guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.
This court heard the learned counsel on either side and also perused the materials placed on record.
The case of the Prosecution entirely rests on the evidence of the complainant and the trap witness, who are either police witness or interested
witness. The Prosecution has not produced any independent witness to prove its case, when admittedly the place of occurrence is a District
Registrar''s Office where a large number of public assemble. At least one or two could have been asked to be a witness to the seizure of bribe
money alleged to have been paid to the Appellant. But, not done so. The necessity for examination of an independent witness arises in the
background of facts and circumstances of this case, more so when the testimony of PW. 2 and PW. 3 are contradictory and inconsistent on
material particulars. The decoy witnesses may to an extent be considered to be interested, inasmuch as he may be inclined to see that their trap
succeeds in the final analysis and therefore, the necessity of corroboration of evidence arises. As held by the Honourable Supreme Court in Khilli
Ram Vs. State of Rajasthan, the testimony of a trap witness should be tested in the same way as interested evidence requiring independent
corroboration in proper cases before convicting the accused.
The background of the case requires that the testimony of the witnesses is required to be tested for its inherent inconsistency in reference to the
statement made by PW. 2 on being cross checked with PW. 3 and confronted with their statements made to the police during the investigation.
It is the case of the Prosecution that after the bribe money paid to the Appellant, PW. 2 left the place and it is their categoric version that he was
not present at the scene, when the trap money was seized from the Appellant. Quite contrary to this, PW. 2 has stated that he was present in the
scene, when the trap laying officer PW. 9 entered into the scene on being signaled and the bribe money of Rs. 300/- was taken by PW. 9 from the
table drawer of the Appellant. He goes to the extent of saying that PW. 9 asked the Appellant to take out the bribe money and caught hold of his
hand. Thereafter, PW. 9 himself took the money from his table drawer. PW. 2 was treated as hostile, inasmuch as he deposed that he was present
at the time of recovery and PW. 9 himself took the money from the table drawer of the Appellant. PW. 2 was subjected to cross examination by
the Prosecution and he reiterated that he has not stated to the police during investigation that it is the Appellant who took the bribe money from the
drawer and handed it over to PW. 9.
There is no presumption of law that the statement of a witness recorded by an investigating officer is truthful. The purpose of contradicting a
witness, who has deposed to certain facts in the court, with his earlier statement to the police, is primarily to shake his credit on the ground that he
has made contradictory statements on two different occasions. PW. 2 contradicted substantially with his previous statement during cross
examination by the defence and his evidence has been shaken to an extent. Apart from the fact that nothing useful to the Prosecution was elicited
from PW. 2 during the cross-examination by the Prosecution, it is needless to point that the statement made to the police cannot be used for the
purpose of seeking corroboration or assurance for the testimony of the witness in court, as it is settled law that such statements may be used only
for the purpose of contradicting a Prosecution witness in the manner indicated in Section 145 of the Evidence Act and for no other purpose.
Another material discrepancy in the instant case, which raises a considerable doubt on the Prosecution case is that PW. 2 is categoric in his
evidence that bribe was demanded by the Appellant on 3.10.2002 itself and when PW. 2 pleaded his inability to pay any bribe, the Appellant
returned back the registration form Ex. P2 and the registration fee of Rs. 555/- to PW. 2 and told him that only on payment of bribe money,
Registration of sangam will be made. Again on 10.10.2002, when PW. 2 approached the Appellant for the same purpose and submitted the form
with the fees, the Appellant reiterated his demand of bribe, but reduced to Rs. 300/- on the plea made by PW. 2 that the members of the Sangam
are downtrodden people. When PW. 2 did not comply with the demand of bribe of Rs. 300, the Appellant again returned back Ex. P2 and the
registration fees of Rs. 555/- to PW. 2. Only thereafter, PW. 2 lodged the complaint and his evidence clearly indicated that till trap was
conducted, Ex. P2 was with PW. 2 only. In fact, PW. 2 went on to say that on the date of trap, PW. 2 handed over Ex. P2 and Rs. 555/- to the
Appellant and the Appellant returned back Ex. P2 and registration fees to PW. 2 and asked him to come at 1.30 p.m. saying that inspection by
Inspector General of Registration was going on. According to him, at about 1.40 p.m., again PW. 2 and PW. 3 went to the Appellant and PW. 2
gave the bribe money and the registration form and the registration fees. But, PW. 9''s evidence is otherwise. He has admitted that he has not
seized Ex. P2 registration form and Rs. 555/- registration fees from the accused on 11.10.2002. PW. 10, the Investigating Officer has deposed
that Ex. P2 was in the custody of the District Registrar''s Office from 03.10.2002 till the trap proceedings were over. His evidence belies the
testimony of PW. 2 that on failure to comply with his demand of bribe, the Appellant returned back Ex. P2 to PW. 2 on each occasion and only at
the time of acceptance of bribe money, Ex. P2 was finally accepted by him.
In this context, the evidence of PW. 5, who worked as Joint Registrar at the time of incident, who speaks about the procedure in registering a
Sangam assumes importance. His evidence clearly indicated that on an application being submitted for registration of Sangam, either Joint Sub
Registrar or the District Registrar would put their respective initial acknowledging such form if it is in order and the concerned clerk would be
asked to collect registration fees and forward it to the Joint Sub Registrar. Once it is initialed by the Officer, it would not be returned back to the
applicant. In this case, the application had been initialed by the Officer even on 3.10.2002. Hence, PW. 2''s evidence that Ex. P2 was returned
back to him cannot be true, which raises a considerable doubt and no credence could be given to his evidence.
It is the specific case of the Prosecution that the Appellant is not the authority to perform the act of registration. PW. 5''s evidence disclosed
that the registration of Sangam had already been done on 11.10.2002 i.e. on the date of trap. His evidence further disclosed that the Appellant is
not a person who has to do the registration and it is the Joint Sub Registrar who has to perform such function. In fact, PW. 2 himself admitted that
he was very much aware that only the District Registrar or the Joint Sub Registrar are the authorities to register the Sangam and issue registration
certificate. Therefore, when the Appellant is not the authority to register the Sangam, it is doubtful whether any demand has been made by the
Appellant to perform such function. That apart, there is a delay in lodging the complaint and the Prosecution did not explain as to why the
complaint has been made after nearly 7 days. It is not the case of the Prosecution that though the Appellant was not the authority, but he assured to
get it done. That apart, when the process of registration has already commenced and admittedly when the registration has been made on
11.10.2002, the question of any demand being persisted on 11.10.2002 would not arise. It is the Prosecution case that inspection by Inspector
General of Registration was going on 11.10.2002 and as a common man, who was not willing to pay any bribe, would definitely complain to the
Inspector General of Registration about the demand of bribe made by the Appellant, had there been a demand as alleged by him.
There is another patent discrepancy in the evidence of the complainant PW. 2 and the panch witness PW. 3. PW. 2 has stated that the
registration fees of Rs. 555 was kept in the left side drawer, whereas PW. 3 has contradicted and said that the Appellant received the said sum
from PW. 2 and kept it in the file, which was on the table. Admittedly, PW. 3 was a stranger and the demand and acceptance of bribe was said to
have taken place in the presence of a stranger. The evidence indicated that the accused did not bother to inquire about PW. 3. Normally, the bribe
amount would not be accepted in presence of a stranger and the accused would not have accepted the bribe money in the presence of PW. 3. The
very fact that the accused did not enquire about PW. 3 demonstrates his behaviour consistent with his defence.
It is not in dispute that the bribe money was seized from the table drawer of the accused. A closer scrutiny of the evidence unfurls a different
profile with regard to the money recovered from the table drawer of the accused. It is the case of the Prosecution that PW. 2 collected the decoy
amount from PW. 4. PW. 4''s evidence disclosed that PW. 2 wanted Rs. 555/- towards registration fees and Rs. 300/- for office expenses. His
evidence clearly indicated that Rs. 300/- was taken from PW. 4 by PW. 2 only for office expenses. PW. 4 has stated that he was aware that the
Government Servants in public offices receive money for small savings. The District Registrar PW. 6 has clearly stated that there was a circular
instructing the staff working in the Government Offices to canvass for small savings scheme. PW. 5, the Joint Sub Registrar also has reiterated the
same and had deposed that his subordinates were instructed to inform the public who come to them for registration and other purposes about the
small savings scheme and persuade them to join the scheme.
The Appellant''s explanation for the recovery of money from his table drawer is that PW. 2 kept the money in his table drawer and when the
Appellant asked him for what purpose he is keeping the money, PW. 2 told him that it is for small savings and asked him to hand over the money
to the Deputy Registrar. In such circumstances, the act of keeping the amount in his table drawer is not decisive to conclude that it was intended
for himself. It is contended that by the Prosecution that if it was given for small savings, then the Appellant ought to have entered the same in the
register and handed over the money to the Superior Officer. I am unable to appreciate his contention, because as soon as the amount was given,
the signal was transmitted by PW. 2 which was immediately followed up and the trap team rounded him up. Hence, there would not have been
sufficient interval for the Appellant to make entries in the Register or to prepare the receipt.
By preponderance of probabilities, the Appellant has sufficiently shown that the plea put forward by him, namely, that PW. 2 had put the
money in his table drawer, which according to him was for small savings scheme is plausible. It is too well settled that in a case where the accused
offers an explanation for receipt of the alleged amount, the question that arises for consideration is as to whether that explanation can be accepted
as a plausible one. It is well settled that the accused is not required to establish his defence by proving beyond reasonable doubt as the Prosecution
do, but can establish the same by preponderance of probability.
In Punjabrao Vs. State of Maharashtra, the Honourable Supreme Court observed that non-offering of any explanation by the accused, at the
time when the Trap Laying Officer seized the amount from him, is by itself would not be sufficient to throw away the explanation offered by the
accused in his statement u/s 313 of Cr.PC, when such explanation could be held to be reasonable under the facts and circumstances of the case. In
the present case, the explanation given by the Appellant appears to be a reasonable and acceptable one which to an extent supported by
Prosecution witnesses, namely, PW. 4, PW. 5 and PW. 6.
Coming to the question of phenolphthalein test proving positive, this court need to take note of the fact that this is one of the few cases, where
it will have to accept the position that the handling of the money by the accused cannot be treated as an incriminating circumstances. It is true that in
the majority of corruption cases, the finding of traces of phenolphthalein powder establishes that the accused has handled the currency notes in
question and unless there is a very valid and very strong explanation forthcoming indicating justification for having done that, an adverse
interference will follow.
In the instant case, even as per the evidence of PW. 2 and PW. 3, tainted notes were kept by PW. 2 in his inner pocket and Rs. 555/- which
was meant for Registration fees, was kept by him in the outer pocket. When PW. 9 asked PW. 2 as to whether he was having the money i.e. Rs.
555/- PW. 2 took the amount from his outer pocket and showed it to PW. 9. The transmission of phenolphthalein powder to the currency notes of
Rs. 555/- and to the hands of the accused, as he admittedly received the said amount from PW. 2, is possible. This explanation is plausible with
sequence of events and under these circumstances, the traces of phenolphthalein powder on the hands of the accused cannot help the Prosecution.
At this juncture, it is relevant to refer to the dictum laid down by the Honourable Supreme Court, while dealing with the aspect of establishing
preponderance of probability of the defence version by the accused. In State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar, their
Lordships held that the accused is not bound to prove his innocence beyond all reasonable doubt and that all that he needs to do is to bring out the
preponderance of probability. In this case, the defence put forth by the accused falls within the parameters of the probability and therefore, the
seizure of the currency notes from the table drawer of the accused cannot assist the Prosecution in sustaining conviction. In the light of conflicting
versions and suspicious features on the crucial aspect, the plea of the accused does not appear to be improbable.
The learned counsel for the Appellant placed reliance on the decision of the Honourable Supreme Court reported in State of Tamil Nadu Vs.
S. Krishnamurthy, wherein the defence raised was that the accused received money as donation for Teachers'' Day. The Honourable Supreme
Court observed that there being a practice of collecting money for certain funds in the Taluk Office and in view of such practice institutionalized
though such practice cannot be appreciated, but the accused having collected money for such a purpose, held that the acquittal of the accused by
the High Court is neither perverse nor without evidence.
Taking the unsatisfactory character of the Prosecution evidence coupled with the inconsistencies and discrepancies in the evidence of PW. 2
and PW. 3 and PW. 9 on material particulars as highlighted above, this court has no option, but to hold that the Prosecution has failed to establish
its case beyond reasonable doubt and the Appellant is entitled to this benefit, entitling him to acquittal on the basis of benefit of doubt. In the result,
this criminal appeal is allowed. The impugned judgment of conviction and sentence dated 6.11.2006 made in Special Case. No. 5/2003 by the
learned Special Judge Cum Chief Judicial Magistrate, Dindigul is set aside. The bail bond if any executed by the Appellant shall stand cancelled
and the fine amount if any paid by the Appellant shall be refunded to him.