P.GANESAN vs STATE REP.BY

CRL A.No.702 of 2019
IN THE HIGH COURT OF JUDICATURE OF MADRAS
Reserved on : 18.09.2026
Pronounced on : 16.10.2026
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.A.No.702 of 2019
CNR: {HCMA011787682019}
P.Ganesan ... Appellant / Accused

Vs.
State Rep.by
The Inspector of Police,
Vigilance & Anti-Corruption,
Villupuram
(Crime No.01/2012) ... Respondent / Complainant

PRAYER: Criminal Appeal is filed under Section 374(2) of the Cr.P.C.,
against the Judgment passed in Special Case No.39 of 2019, dated
30.09.2019, by the learned Special Judge for Prevention of
Corruption Act Cases, Villupuram.

For Appellant : Mr.K.Sukumaran

For Respondent : Mr.Leonard Arul Joseph Selvam
Additional Public Prosecutor
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CRL A.No.702 of 2019
JUDGMENT

This appeal is directed against the judgment, dated 30.09.2019,
in Spl.C.C.No.39 of 2014, on the file of the learned Special Judge,
Special Court for Prevention of Corruption Act Cases, Villupuram
(‘the trial Court’), by which the appellant, sole accused, was found
guilty of the offences under Section 7 and Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988 (‘the Act’).
For the offence under Section 7, he was sentenced to undergo
rigorous imprisonment for three years and to pay a fine of Rs.1,000/-,
in default, to undergo simple imprisonment for three months. For the
offence under Section 13(2) read with Section 13(1)(d), he was
sentenced to undergo rigorous imprisonment for three years and to
pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment
for six months.
2. The case of the prosecution, in brief, is as follows:-
(a) The appellant, P.Ganesan, was working as Assistant
Agricultural Officer, Somandargudi, Kallakurichi Block, Villupuram
District, from 17.05.2010 to 02.03.2012 and was a public servant
within the meaning of Section 2(c) of the Act. PW2 is the de facto
complainant, A.Palaniappan, registered himself as a small farmer
with the appellant. During third week of January 2012, the appellant
obtained the signature of PW2 in an application under the Coconut
Subsidy Scheme, and it was the official duty of the appellant to
process and recommend the application for subsidy.
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CRL A.No.702 of 2019
(b) On 17.02.2012, PW2 met the appellant at his office on being
called over phone, and the appellant handed over a State Bank of
India cheque for Rs.17,500/-, being the subsidy amount, and, it is
alleged that the accused demanded Rs.10,000/- as illegal gratification
under the guise of ‘office expenses’. Again on 19.02.2012, the
appellant is said to have demanded Rs.10,000/- over phone. The
demand was allegedly reiterated over phone on several dates
thereafter, in person at the house of PW2 on 27.02.2012 at about 8.30
a.m., and again over phone on 28.02.2012 and 29.02.2012, when the
appellant said to have reduced the demand to Rs.7,500/-, to be paid
within two days.
(c) Unwilling to pay, PW2 approached the Vigilance and Anti-
Corruption Police, Villupuram, on 02.03.2012 and lodged a written
complaint (Ex.P7). The Inspector of Police (PW10) registered Ex.P.24
FIR in Crime No.1/2012, under Section 7 of the Act at about 9.00
a.m. Two official witnesses, including Krishnaraj (PW3) as the
shadow witness, were secured; the phenolphthalein demonstration
was conducted; the currency notes of Rs.7,500/- (fifteen notes of
Rs.500/- denomination) produced by PW2 were smeared with
phenolphthalein powder and an entrustment mahazar (Ex.P9) was
prepared. PW2 was instructed to hand over the money only if the
appellant demanded it.
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CRL A.No.702 of 2019
(d) The trap party reached the Agricultural Extension Centre at
Kallakurichi. At about 12.55 p.m., PW2 and PW3 entered the office of
the appellant. PW2 said to have handed over the tainted money on
being asked whether he had brought the money, and the appellant
said to have counted and retained it. PW2 gave the pre-arranged
signal on coming out. The trap party entered; the finger-wash
solutions of both hands of the appellant turned pink in sodium
carbonate solution; the solutions were sealed in two bottles; and the
tainted money was recovered. The appellant was arrested at about
1.20 p.m.
(e) PW11, Deputy Superintendent of Police conducted further
investigation on 03.03.2012. After obtaining the report of the
Forensic Science Department (Ex.P23) and the order of sanction for
prosecution dated 31.12.2012 (Ex.P1) from the Joint Director of
Agriculture, Villupuram (PW1), he laid the final report for the
offences under Section 7 and Section 13(2) read with Section 13(1)
(d) of the Act.
3. The final report taken on file by the learned Chief Judicial
Magistrate, Villupuram, on 28.10.2013 as Spl.C.No.5/2013 and was
transferred to the Special Court on 03.02.2014, where it was re-
numbered as Spl.C.C.No.39 of 2014. On the appellant’s appearance
and after compliance with Section 207 Cr.P.C., charges were framed
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CRL A.No.702 of 2019
under Section 7 and Section 13(2) read with Section 13(1)(d) of the
Act. The appellant denied the charges and claimed to be tried.
4.In order to prove the charges, the prosecution examined PW1
to PW11, marked Exs.P1 to P27 and produced M.O.1 (trap money of
Rs.7,500/-) and M.O.2 (two bottles containing the finger-wash
solutions). When the incriminating circumstances were put to the
appellant under Section 313 Cr.P.C. on 09.08.2019, he denied them.
He examined one Gunasekaran, Assistant Salesman, as DW1. No
document was marked on the side of the defence.
5. The trial Court answered the first point in favour of the
prosecution by holding that PW1 perused the FIR, the statements of
the witnesses, the chemical report and the connected records and
that the omission of certain words in his chief-examination did not
vitiate Ex.P1; that receipt and recovery of the tainted money were not
in dispute; that demand was proved by PW2 and PW3; that the money
was received towards the price of fertilizer was improbable; and that
the presumption under Section 20 of the Act was available against
the appellant, which he failed to rebut. Aggrieved, the appellant is
before this Court.
6. Mr.K.Sukumaran, learned counsel for the appellant,
submitted that PW1 Sanctioning Authority (PW1) did not apply his
mind as required by Section 19 of the Act. Ex.P1 does not record a
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CRL A.No.702 of 2019
prima facie opinion or satisfaction that the appellant committed
offences under the Act. PW1 relied entirely on the report of the
Director, Vigilance and Anti-Corruption, Chennai, and on a letter of
the Commissioner of Agriculture, dated 05.11.2012 (referred to in
Ex.P1 as Reference No.2), neither of which was produced; an adverse
inference under Section 114 of the Indian Evidence Act, 1872 ought
to have been drawn. Ex.P1 describes a pre-arranged signal of
loosening and re-tying the dhoti, whereas PW2 and PW3 speak of
scratching the head, which shows that the sanctioning authority was
influenced by materials other than those placed before the Court.
PW1 admitted that the Director’s report did not mention any demand
on 17.02.2012. The sanction was granted nearly ten months after the
trap without any explanation.
7. Adding further, the learned counsel submitted that the
prosecution has failed to prove the demand, which is the sine qua
non of the offences. Ex.P7 and the FIR do not state that any demand
made on 17.02.2012 when the cheque was handed over; PW1 and
PW10 admitted this omission. PW2 improved his version in the
witness box. There is no corroboration by phone records,
independent witness or document of the alleged telephonic demands
from 19.02.2012 to 29.02.2012, and PW2 is an interested witness
whose evidence requires strict scrutiny. PW2 and PW3 disowned
having been examined by the police and denied the statements
attributed to them. PW11 began the investigation only on 03.03.2012,
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CRL A.No.702 of 2019
and PW10 admitted that he did not examine PW2 after the trap. The
trial Court wrongly used the disowned statements to corroborate the
prosecution case. The Vigilance Manual was not followed in the
receipt of the complaint and the commencement of the trap.
8. The learned counsel further submitted that there are
material contradictions among PW2, PW3 and PW10 regarding the
time of registration of the complaint and FIR, preparation of sodium
carbonate solution, powdering and counting of notes, entrustment
mahazar and finger-wash test. PW2 says the accused retained the
money in his hand; PW3 unsure whether it was on the table or in the
pocket; PW10 says the appellant produced it from the table; DW1
says the police recovered it from the appellant. PW5, whose presence
in the seizure is spoken to by himself, is not mentioned by PW2 and
PW3. The money was received by the appellant under the bona fide
impression that it was the price of fertilizer which PW2 had been
asked to purchase, as it was the duty of the appellant to verify the
end-use of the inputs supplied under the scheme. The complaint was
lodged out of annoyance. The evidence of DW1 was not shaken, and
the explanation, though not required to be proved beyond reasonable
doubt, is probable. The learned counsel, therefore prayed that the
appeal be allowed and the appellant be acquitted.
9. Per contra, Mr.Leonard Arul Joseph Selvam, learned
Additional Public Prosecutor, supported the judgment of the trial
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CRL A.No.702 of 2019
Court and submitted that PW2 has consistently spoken about the
demand commencing on 17.02.2012 and continuing till 29.02.2012,
culminating in a reduced demand of Rs.7,500/-, and that the
reduction itself shows a real negotiation. PW3, the independent
shadow witness, corroborated PW2 on the demand at the time of the
trap, the handing over and the acceptance. The recovery of the
tainted money, tallying of its serial numbers with the entrustment
mahazar, as spoken to by PW5, and the positive phenolphthalein test,
supported by the report of the Forensic Science Department
(Ex.P23), are not in dispute, and the appellant himself admitted
receipt of the money. The sanction order was passed by the
competent authority after perusing the entire records and the
omission of some words in the chief-examination of PW1 is not fatal.
Once demand, acceptance and recovery were established, the
presumption under Section 20 of the Act arose, which the appellant
failed to rebut by a probable explanation. Hence, he prayed that the
appeal be dismissed.
10. The Court heard the submissions made by the learned
counsels on either side and carefully perused the materials on
record.
11. PW1, Joint Director of Agriculture / Sanctioning Authority
deposed that he was competent to remove the appellant from service,
that the DVAC report enclosed the FIR, statements of the accused
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CRL A.No.702 of 2019
and witnesses, investigation report, mahazar and other documents
and he examined them, applied his mind and granted sanction under
Sections 7 and 13(2) read with 13(1)(d), and that Ex.P1 is the order.
In cross-examination, he admitted that a letter dated 23.10.2012
from the Director, Vigilance and Anti-Corruption, Chennai, reached
his office by post, that it was marked ‘Confidential’, that he
personally kept it and passed the order only on 31.12.2012, that
Reference No.2 in Ex.P1 is a letter of the Commissioner of
Agriculture, Chennai, dated 05.11.2012, and that the sanction was
granted on the records and documents received from the Directorate.
He admitted that the Director’s report did not mention any demand
by the appellant from PW2 on 17.02.2012, when PW2 came to collect
the cheque, and that, according to the materials he examined, the
complainant was instructed to give a signal by loosening and re-tying
his dhoti, if the appellant demanded and accepted the bribe, which
was also mentioned in Ex.P1.
12.PW2 / Complainant deposed that Ex.P2 is the application
filled up by the appellant on the basis of the chitta, FMB sketch and
adangal (Exs.P3 to P5) produced by him; that on 17.02.2012 the
appellant called him over phone to the office, handed over the cheque
for Rs.17,500/-, obtained an acknowledgment (Ex.P6) and asked him
for ‘some money towards office expenses’, to which he did not
respond; that the appellant telephoned him on 19.02.2012
demanding Rs.10,000/- and repeated the demand on 20.02.2012;
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CRL A.No.702 of 2019
21.02.2012; 23.02.2012 and 24.02.2012; that the appellant came to
his house between 8.00 a.m. and 9.00 a.m. on 27.02.2012 and
insisted payment; that the appellant called again on 28.02.2012 and
29.02.2012 reduced the demand to Rs.7,500/-; that he reached the
Vigilance office at about 9.00 a.m. on 02.03.2012 and lodged a
complaint; that he entered the appellant’s office along with PW3 at
about 12.55 p.m., appellant asked whether he brought money that
was demanded, he took out Rs.7,500/- from his pocket and handed it
over, appellant counted it with both hands and retained it in his right
hand; and that he gave signal by scratching the top of his head with
his right hand.
13.In cross-examination, PW2 admitted that in his complaint he
did not mention that appellant asked him for something towards
office expenses while handing over the cheque; that it was the
appellant’s duty to inspect whether the fertilizers supplied under the
scheme were properly used, to certify that the technical norms
followed and to submit a report; that the appellant spoken to him
over phone after 17.02.2012 and came to his house on 27.02.2012;
that he had withdrawn Rs.7,500/- from his account before lodging the
complaint because he knew he should carry the bribe amount to the
Vigilance Police; and that he orally informed Inspector
Krishnamoorthy about the matter for about ten to fifteen minutes. He
denied having been examined by the police, denied having stated to
the police that the appellant asked “Have you brought the Rs.7,500/-
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CRL A.No.702 of 2019
I demanded?”, and denied that he lodged a false complaint because
the appellant insisted that he purchase fertilizer from the godown, or
that the money was paid towards the price of fertilizer.
14. PW3, shadow witness , spoke to demonstration, entrustment
mahazar (Ex.P9), journey to Kallakurichi, his entry into appellant’s
office with PW2 at about 12.55 p.m., handing over and counting of
money by appellant, signal by scratching head, finger-wash test,
sealing of bottles, seizure of a register (Ex.P10) and preparation of
sketch and observation mahazar (Exs.P12 and P13). He deposed that
the money recovered from the table and that the appellant admitted
before the officer that he received it. In cross-examination, he stated
that another person was present in the office and later left; that,
apart from signing mahazar, he was not examined by the police and
gave no statement; that he denied the suggestion that PW2
voluntarily handed over Rs.7,500/- for purchasing fertilizer without
any demand; and that he was initially not sure whether money
remained on the table or in the pocket of the appellant until the
police arrived, but clarified that it was on the table.
15. PW5, Block Development Officer deposed that he was taken
to the Agricultural Extension Office at about 1.10 p.m., that the
tainted money was produced by the appellant from his table, its serial
numbers tallied with the entrustment mahazar, and that
phenolphthalein test positive. In cross-examination, he deposed that
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CRL A.No.702 of 2019
the appellant admitted during police interrogation that he received
Rs.7,500/- as bribe. PW8 Forensic Science Department proved
Ex.P23, reporting phenolphthalein and sodium carbonate in both the
bottles; she was not cross-examined.
16. PW10, Trap Laying Officer) deposed that PW2 appeared
before him at about 7.00 a.m. On 02.03.2012, submitted a written
complaint, he registered FIR at 9.00 a.m., instructed PW2 to hand
over the tainted money only if the appellant demanded it, that on
questioning the appellant, he became nervous and admitted receipt,
that the finger-wash tests turned pink, the appellant produced the
money kept on his table, he arrested the appellant at 1.20 p.m. In
cross-examination, he admitted that the statement of the complainant
did not mention that on 17.02.2012 the appellant demanded money
for the officer while handing over the cheque, that he did not
examine the complainant after the trap, and that the Agricultural
Extension Centre is within the Block Development Office campus.
17. PW11, Investigation Officer deposed that after taking over
the investigation on 03.03.2012 he examined the witnesses, recorded
their statements, obtained scientific report and sanction and laid the
final report. In cross-examination, he deposed that he examined two
witnesses in his office after they appeared, as instructed by the Trap
Laying Officer, that there was a separate godown for fertilizers with
its own Manager and Watchman, that the Watchman Gunasekaran’s
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CRL A.No.702 of 2019
statement was not recorded, as he had no knowledge of the
occurrence, and that the Manager was on leave on the date of
occurrence. PW4, PW6, PW7 and PW9 deposed on the surrounding
circumstances and add nothing on the question of demand.
18.DW1, the Assistant Salesman in the fertilizer godown,
deposed in support of the defence that PW2 come to the office on the
date of trap in connection with purchase of fertilizer, that the money
paid by PW2 to the appellant, and that the police thereafter
recovered the amount from the appellant.
19. Upon the above pleadings, evidence and submissions, the
following points arise for consideration in this appeal:-
(1) Whether the sanction for prosecution (Ex.P1)
was validly granted after due application of mind by the
competent authority?
(2)Whether the prosecution has proved, beyond
reasonable doubt, the demand of illegal gratification by
the appellant from PW2, which is the foundational fact
for the offences charged?
(3) Whether the acceptance and recovery of the
tainted money are proved to be as illegal gratification,
and whether the presumption under Section 20 of the
Act could be drawn against the appellant?
(4) Whether the conviction and sentence recorded
by the trial Court are liable to be set aside?
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20. The law on the subject is well settled. Proof of demand of
illegal gratification is the gravamen of the offence under Section 7 of
the Act, and it is equally indispensable for an offence under Section
13(1)(d), and mere possession or recovery of currency notes from a
public servant, without proof of a demand, is not sufficient to convict.
This has been laid down Mukhtiar Singh v. State of Punjab
(2017) 8 SCC 136. The Constitution Bench in Neeraj Dutta v.
State (Government of NCT of Delhi) (2023) 4 SCC 731 has
reiterated that proof of demand and acceptance is a must, that it may
be established by direct evidence or, in the absence of the
complainant’s evidence, by circumstantial evidence, and that it is
only after the foundational facts of demand and acceptance are
proved that the statutory presumption under Section 20 can be
drawn.
21. The presumption under Section 20 is thus not a substitute
for proof of demand. It arises only when the prosecution has first
proved that the accused accepted or obtained gratification other than
legal remuneration, and in the context of a trap case that means
acceptance with knowledge that it is a gratification and in pursuance
of a demand. Even when it arises, the accused is not required to
prove his explanation beyond reasonable doubt, and it is enough if he
establishes a probable defence on the standard of preponderance of
probabilities. Equally, the prosecution has to stand on its own legs;
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CRL A.No.702 of 2019
the failure or weakness of the defence cannot supply the gaps in the
case of the prosecution.
22. The trial Court disposed of the question of sanction in a
single paragraph. It noted that the sanctioning authority “was not
able to answer all those questions” put to him, that in his evidence he
did not state that he accorded sanction after being satisfied, and yet
held that since Ex.P1 recites perusal of FIR, statements and chemical
report, omission of certain words in chief-examination not fatal. The
trial Court did not at all examine the admissions elicited in the cross-
examination of PW1, which, in the opinion of this Court, go to the
root of the matter.
23. The Hon'ble Supreme Court in State of Karnataka v.
Ameerjan, (2007) 11 SCC 273 , held that the grant of sanction
under Section 19 of the Prevention of Corruption Act, 1988, is not an
empty formality but an important safeguard against the prosecution
of public servants without due consideration. The validity of the
sanction depends upon the sanctioning authority applying its mind to
the relevant material placed before it and being satisfied that a prima
facie case for prosecution exists. The prosecution must establish that
the sanction accorded after due application of mind to the relevant
materials. Tested on these principles, the sanction in this case suffers
from the following infirmities:-
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CRL A.No.702 of 2019
(i) PW1 candidly stated that sanction was granted on the
records and documents received from the Directorate of Vigilance
and Anti-Corruption and that DVAC letter dated 23.10.2012 marked
as ‘Confidential’ and kept by him. Ex.P1 also refers, as Reference
No.2, to a letter of the Commissioner of Agriculture, dated
05.11.2012. Neither the DVAC report nor the letter of the
Commissioner produced. The prosecution, which alone could produce
them, withheld the very communications on which sanction rests, and
thereby denied the accused an opportunity to test what was placed
before PW1 and how far he was guided by it. An adverse inference
under Section 114(g) of the Indian Evidence Act is liable to be drawn.
(ii) PW1 admitted that the Director’s report did not mention any
demand on 17.02.2012. But the charge and the case of the
prosecution proceed on the footing that the demand began on
17.02.2012. The material before the sanctioning authority was thus
not in accord with the prosecution case that was later put forward.
(iii) PW1 deposed that according to the materials he examined,
the complainant instructed to give a signal by loosening and re-tying
his dhoti, and that this finds a place in Ex.P1. But no prosecution
witness speaks to such a signal. PW2 and PW3 say that signal was
scratching of the head, and Trap Laying Officer, as recorded in the
evidence, spoke of the same instruction. A fact recited in the order of
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CRL A.No.702 of 2019
sanction, which is not borne out by the material of this case,
indicates that the recital was borrowed from some other file or
report, and not drawn from the records of Crime No.1/2012 that PW1
claims to have independently examined. The explanation offered, that
he acted on the Director’s report, only reinforces the impression that
he adopted what was sent to him.
(iv) The sanction accorded on 31.12.2012, nearly ten months
after the trap and PW1 admitted receipt of the DVAC letter, dated
23.10.2012 by post within four or five days. Though delay by itself
may not vitiate a sanction, in the absence of any explanation, coupled
with the reference to the Commissioner’s letter of 05.11.2012, it is
not possible to rule out that the order was passed on prompting of
superior authority rather than on the sanctioning authority’s own
satisfaction.
24. The reasoning of the trial Court that omission of a few
words in the chief-examination is not fatal misses the real point. The
question is not whether PW1 used the expression ‘satisfied’ but
whether the evidence, read as a whole with the order, shows that the
authority independently applied his mind to the relevant material. On
the record, the prosecution failed to establish that. The sanction
under Ex.P1 cannot be held to be a valid sanction.
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25. It could be seen from the records that accused does not
deny that PW2 handed over Rs.7,500/- to him on 02.03.2012. His case
is that the money paid towards the price of fertilizer, which he, as the
Assistant Agricultural Officer, asked PW2 to purchase. The entire
case therefore turns upon whether the prosecution has proved
beyond reasonable doubt that money was demanded by the appellant
as gratification for the official act of processing and recommending
the subsidy. The prosecution relies on a series of alleged demands:
(a) on 17.02.2012 while handing over the cheque; (b) over phone
from 19.02.2012 to 25.02.2012 and on 28.02.2012 and 29.02.2012;
(c) at the house of PW2 on 27.02.2012; and (d) at the time of the trap
on 02.03.2012. Each of them is examined below.
26. The alleged demand is on 17.02.2012. In his chief-
examination, PW2 deposed that, when cheque was handed over, the
appellant asked for ‘some money towards office expenses’. But the
complaint (Ex.P7), on which the criminal law was set in motion, does
not mention this, as PW2 himself admitted in cross-examination.
PW10, the officer who received the complaint, admitted the same.
PW1 also admitted that the DVAC report did not mention such a
demand. This is not a trivial omission, because the prosecution has
pleaded this very event as the inception of the demand and it is the
one occasion when the appellant, having just handed over the
cheque, could be said to have demanded the money as a reward for
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the official act. The cheque was handed over, an acknowledgment
(Ex.P6) given, and PW2, according to his own version, walked away
without a word. A person who asked for a bribe at that very moment
would ordinarily have mentioned it at the first opportunity. The trial
Court dismissed the omission by observing that a complaint is not an
encyclopedia and that a complainant would mention only the most
recent grievance. That is a general proposition, which cannot answer
the particular difficulty here. The complaint did speak of the earlier
demands from 19.02.2012 onwards, which according to PW2 in
continuation of the first one, and it is then inexplicable that the first
demand alone was left out. It is also noteworthy that in paragraph 22
of the judgment, the trial Court itself recorded the same objection in
strong terms, that the evidence of PW2 on this point does not stand
scrutiny and that it is an improvement, and then rejected it without
any additional reasoning. The reasoning of the trial Court on this
aspect is internally inconsistent. This Court finds that the demand on
17.02.2012 is not proved, and that PW2 has improved upon his
version in the witness box.
27. The alleged telephonic demands and the visit on
27.02.2012. The demands between 19.02.2012 and 29.02.2012 rest
solely on the oral testimony of PW2, an interested witness. PW2 has
not stated the number from which or to which the calls were made,
and no call detail record or any other document collected by the
investigating agency to show that appellant spoke to PW2 on the
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dates alleged, even though such records are easily available and the
Vigilance Department was in a position to obtain them. No
independent witness examined to speak to the visit on 27.02.2012
between 8.00 a.m. and 9.00 a.m. at the house of PW2. The appellant’s
defence is that he did call and visit PW2 in connection with the
fertilizer, which PW2 himself in cross-examination admitted, namely
that the appellant spoke to him over phone after 17.02.2012 and
came to his house on 27.02.2012, and that it was the duty of the
appellant to inspect the use of fertilizers. The fact of calls and visit is
thus consistent with both the case of the prosecution and the case of
the defence. What was said in them remains the word of PW2 alone.
The reduction of demand from Rs.10,000/- to Rs.7,500/-, upon which
the learned Additional Public Prosecutor placed emphasis, is part of
the same oral version, and it cannot, by itself, lend corroboration to
it.
28.The alleged demand at the time of trap. PW2 says that
appellant asked him whether he brought the money that was
demanded. PW3, who sent specifically to overhear the conversation,
says that appellant asked whether the complainant had brought the
money. The trial Court held that the difference between the two
versions is immaterial. Even if the difference is ignored, the words
attributed to the appellant, taken at their highest, are ‘have you
brought the money’. In the context of the case, in which it is common
ground that the appellant had been telling PW2 to purchase fertilizer,
those words are equally consistent with a reference to the price of
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fertilizer as with a reference to a bribe. By themselves, they do not
prove a prior demand. They could do so only if the earlier demand
were independently established, and the evidence on that is, as
discussed, unsatisfactory. The sentence “Have you brought Rs.7,500/-
I demanded?”, which PW2 attributed to the appellant in the witness
box, is the very sentence which PW2 denied having stated to the
police, and the trial Court wrongly attempted to prove through an
unproved Section 161 statement. The version in the witness box is
thus an addition.
29. Both PW2 and PW3 stated in cross-examination that they
were not examined by the police, and PW10 admitted that he did not
examine PW2 after the trap. PW2 also denied having made the
statement attributed to him. PW11 claims that he examined them in
his office on 03.03.2012. The trial Court, in paragraph 28, recorded
that the two witnesses “were being examined by the Investigation
Officer” because their chief-examination spoke of such an
examination, and that the statement attributed to PW2 under Section
161 Cr.P.C. regarding the demands from 19.02.2012 to 27.02.2012,
“which is not found in the complaint”, corroborated his deposition.
This approach is contrary to law. Under Section 162(1) Cr.P.C., a
statement recorded by the police during investigation cannot be used
for any purpose other than contradicting the witness in the manner
provided by the proviso, read with Section 145 of the Indian Evidence
Act. It cannot be used as substantive evidence or to corroborate the
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witness. Further, the witnesses had disowned the statements, the
prosecution neither declared them hostile nor put the statements to
them for contradiction, and in the absence of any proof by PW11 in
the manner known to law the contents were not before the Court.
30. The evidence regarding the examination of witnesses is also
contradictory. PW11 claims to have examined them on 03.03.2012,
whereas PW2 and PW3 deny it, and PW10 has not examined PW2
after the trap. The prosecution has thus not been able to show how,
and when, the statements of its two principal witnesses were
recorded. This casts a doubt in the manner in which the investigation
conducted and on the reliability of the records.
31. The prosecution evidence on the time at which the
complaint given is irreconcilable. PW10 says that PW2 appeared
before him at 7.00 a.m. and gave a written complaint. PW2 deposed
he reached the Vigilance office at about 9.00 a.m. and had a
conversation of about ten to fifteen minutes with the Inspector, and
PW10 registered the FIR at 9.00 a.m. PW3 deposed he reached the
Vigilance office at around 10.00 a.m. Each of these may be a minor
discrepancy, if viewed in isolation, but taken together with the other
circumstances, namely that the complaint is silent on the first
demand, that PW2 withdrew Rs.7,500/- from his own account in
advance and carried it with him to the Vigilance office, that the
written complaint said to have been given two hours before PW2 says
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he reached the office, and that the DVAC report to the sanctioning
authority stated to have been dated 02.03.2012, a day before PW11
took up the investigation, they leave a lingering doubt about how and
when the case was actually set in motion. The prosecution has not
clarified this by producing the DVAC report.
32. The defence that money was paid towards the purchase of
fertilizer was found improbable by the trial Court because the
appellant neither the salesman nor in possession of receipt book, and
because he had not specified the quantity or price of the fertilizer. In
the opinion of this Court, the approach of the trial Court proceeds on
suppositions. PW2 himself admitted that it was the duty of the
appellant to verify whether the fertilizers supplied under the scheme
were properly used, and that the appellant did insist that he purchase
fertilizer; PW11 admitted that there was a fertilizer godown with its
own Manager and Watchman, and PW2 further admitted that the
appellant was seated opposite the Manager’s seat at the time. On the
date of trap, the Manager (PW7) was on leave, which is admitted. The
conclusion that no official would receive money without fixing the
price and without receipt is a general assumption and not a finding
supported by evidence; at best it makes the defence doubtful, but the
question here is whether the prosecution case is established. The
defence need only create a reasonable doubt on the prosecution case
or be probable; it is not required to prove its case.
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33. The trial Court rejected DW1 evidence because the
suggestion put to PW2 was that PW2 called the appellant through
DW1, while DW1 deposed that PW2 called the appellant over phone.
Such a difference between a suggestion in cross-examination and the
evidence of a defence witness is not a ground to discard the witness
altogether; suggestions are not evidence, and in any case, the
rejection of the defence evidence cannot fill up the gap in the
prosecution evidence. The trial Court also found fault with the
defence for not confronting PW7 with the alleged practice of keeping
fertilizer outside the depot, but the burden never shifted to the
appellant until the prosecution proved the demand. The further
reasoning of the trial Court, in paragraph 29, that because the
subsidy was meant to reimburse past expenditure it was impossible
to direct the beneficiary to buy fertilizer out of it, is not based on any
evidence regarding the terms of the scheme and was not put to the
appellant, and cannot be sustained.
34. Having regard to all the above, the evidence of PW2, who is
an interested witness, on demand is unreliable in respect of the first
demand, is uncorroborated in respect of the subsequent demands,
and contains improvements. The evidence of PW3 is confined to what
he saw at the time of trap, which is equivocal. The prosecution has
therefore failed to prove demand of illegal gratification beyond
reasonable doubt. The trial Court failed to appreciate the evidence in
the correct perspective, and the finding that demand was proved is
perverse.
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35. The acceptance of the money by the appellant, recovery
from the Agricultural Extension Centre and positive phenolphthalein
test are not seriously in dispute, and indeed the appellant admitted
that he received money as price of fertilizer. But in law mere proof of
receipt and recovery, without proof of demand, does not constitute
the offence. Acceptance of gratification as a motive or reward is a
conscious act which has to be considered along with demand, and
without the latter, the receipt of money by itself cannot be considered
as illegal gratification. The recovery of the money in this case is a
fact consistent with both the version of the prosecution and the
defence.
36. The manner of trap has also not been proved without
contradictions. PW2 deposed that the appellant retained the counted
notes in his right hand; PW3 was initially unsure whether the money
was on the table or in the pocket of the appellant until the police
arrived and only later said it was on the table; PW10 and PW5
deposed that the appellant produced the money from the table when
asked, and DW1 deposed that the police recovered it from the
appellant. The witnesses also differ as to the preparation of the
sodium carbonate solution and the procedure of powdering and
counting of the notes. PW5 said to have witnessed the proceedings
from about 1.10 p.m., but neither PW2 nor PW3 speaks of his
presence, and PW10 in fact deposed that the official, who was to be
present, the Assistant Director, away on tour and that PW5 called in
to sign the mahazars and the arrest memo. Though these are not
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individually decisive, the cumulative effect is to reduce the weight to
be given to the trap proceedings in a case where demand is not
independently established.
37.The evidence of PW3 and PW10 that the appellant admitted
before the Trap Laying Officer that he received the money, and that
of PW5 that the appellant admitted during police interrogation that
he received it as a bribe, is wholly inadmissible in evidence by virtue
of Sections 25 and 26 of the Indian Evidence Act. The recovery of
register (Ex.P10) is of no consequence to the question of demand.
38.Since the foundational fact of demand is not proved, the
presumption under Section 20 of the Act cannot be raised against the
appellant, and the burden of rebuttal did not arise. The trial Court
committed an error in invoking Section 20 on the strength of receipt
and recovery and in faulting the appellant for failing to establish his
explanation. Even otherwise, the explanation of the appellant, that
the sum was received towards the price of the fertilizer which PW2
was asked to purchase, is a possible one in the facts of this case and
sufficient to raise a reasonable doubt in the prosecution case. The
charge under Section 13(2) read with Section 13(1)(d) of the Act,
which too rests on the proof of demand and obtaining of a pecuniary
advantage by corrupt or illegal means or by abuse of position, also
fails for the same reasons.
39. The prosecution has failed to prove a valid sanction for
prosecution, demand of illegal gratification, and consequently
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acceptance of the money as gratification, beyond reasonable doubt.
The trial Court recorded the conviction by relying on an unproved
Section 161 statement, by disregarding omissions in the complaint
and the admissions of PW1 and PW10, by drawing the presumption
under Section 20 of the Act in the absence of proof of demand, and
by rejecting the defence evidence on grounds which did not relate to
the case of the prosecution. The findings of the trial Court are not
sustainable and the appellant is entitled to the benefit of doubt. As
the prosecution has failed on the merits, no question of remand
arises, and the appellant has to be acquitted.
40.In the result, this Criminal Appeal is allowed, and the
Judgment of conviction and sentence, dated 30.09.2019, passed by
the learned Special Judge, Special Court for Prevention of Corruption
Act Cases, Villupuram, in Spl.C.C.No.39 of 2014, is set aside. The
appellant/accused is acquitted of the charges under Section 7 and
Section 13(2) read with Section 13(1)(d) of the Prevention of
Corruption Act, 1988. The fine amount, if any, paid by the appellant
shall be refunded to him. The bail bond, if any, executed by the
appellant shall stand cancelled.
16.10.2026
Index : Yes / No
Internet : Yes / No
MPK
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To
1. The Special Judge for Prevention of Corruption Act Cases,
Villupuram.
2. The Inspector of Police,
Vigilance & Anti-Corruption,
Villupuram.
3. The Public Prosecutor,
High Court, Madras.
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CRL A.No.702 of 2019
M.NIRMAL KUMAR, J.
mpk
Pre-Deliver Judgment made in
CRL.A.No.702 of 2019
16.10.2026
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