K.VISWANATHAN vs DEPUTY SUPERINTENDENT OF POLICE

CRL A.No.705 of 2023
IN THE HIGH COURT OF JUDICATURE OF MADRAS
Reserved on : 10.09.2026
Pronounced on : 16.10.2026
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.A.No.705 of 2023
K.Viswanathan ... Appellant / Accused

Vs.
The State of Tamil Nadu Rep.by
The Deputy Superintendent of Police,
Vigilance & Anti-Corruption,
Erode
(Crime No.03/2011/ER ... Respondent / Complainant

PRAYER: Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, against the Judgment passed in C.C.No.37 of
2015 (CNR No.TNEDO4-000236-2015) dated 12.06.2023, on the file
of the Chief Judicial Magistrate / Special Judge, Erode and seeks to
set aside the same.

For Appellant : Mr.T.Gowthaman
Senior Counsel
For Ms.S. Karpagapriya

For Respondent : Mr.S.Udayakumar
Government Advocate (crl.side)
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CRL A.No.705 of 2023
JUDGMENT

The appellant, the sole accused in C.C.No.37 of 2015, was
convicted by Judgment dated 12.06.2023 of the learned Chief Judicial
Magistrate / Special Judge, Erode. He was sentenced to undergo
Rigorous Imprisonment for three years and to pay a fine of
Rs.5,000/-, in default simple imprisonment for one month, for the
offence under Section 7 of the Prevention of Corruption Act, 1988
("the Act"), and to Rigorous Imprisonment for three years and a fine
of Rs.5,000/-, in default simple imprisonment for one month, for the
offence under Section 13(2) read with Section 13(1)(d) of the Act.
The sentences of imprisonment were directed to run concurrently.
Aggrieved by the conviction and sentence, the accused has preferred
this appeal.
2. The case of the prosecution, in brief, is as follows:
(a) The de facto complainant, Mr.G.Ragunathan (PW.1), a
welder residing at Thamaraipalayam, Erode District, applied to the
Assistant Engineer, TNEB (O&M), Thamaraipalayam, for a new
service connection to his house. The appellant, K.Viswanathan, was
then a Foreman (Grade-I) in the same section and is admittedly a
public servant.
(b) It is alleged that on 18.01.2011 the appellant visited PW.1's
house, said that a new electric post had to be erected for which
Rs.1,550/- was payable to the Board, and demanded Rs.1,000/-, as
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CRL A.No.705 of 2023
illegal gratification for arranging the post, fixing the meter and
giving the connection. PW.1 paid Rs.1,550/- at the office on
07.02.2011. The post was erected by Board staff, with PW.1
arranging a tractor, on 11.02.2011. The appellant said to have
reiterated the demand on 08.02.2011 and told PW.1 that the meter
would not be fixed until the money paid. On 14.02.2011 he said to
have visited PW.1's house at about 08.30 hours, told PW.1's wife
(PW.8) the same, and repeated the demand to PW.1 at about 17.00
hours.
(c) PW.1, unwilling to pay, gave a complaint (Ex.P.3) on
15.02.2011 at about 08.00 hours to the Inspector of Police, Vigilance
and Anti-Corruption, Erode. (PW.10), who registered
Cr.No.3/AC/2011/ER (Ex.P.19). Two Government officials, Mr.Selvaraj
(PW.2) and one Rajaram, were deputed as official witnesses. Six
currency notes totalling Rs.1,000/- were smeared with
phenolphthalein powder, their numbers noted in the entrustment
mahazar (Ex.P.5), and handed to PW.1 with instructions to pay only on
demand and to give a signal by combing his hair.
(d) In the afternoon the trap party went to the
Thamaraipalayam TNEB office, but the appellant was absent. After
several telephone calls, the appellant said to have asked PW.1 to
come to the Ganapathipalayam bus stop. There, at about 06.00 p.m.,
the appellant demanded the money, taken it with his right hand,
counted it with both hands and kept it in his left shirt pocket. PW.1
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CRL A.No.705 of 2023
gave the signal at about 06.05 p.m. The appellant was taken to the
TNEB office at Thamaraipalayam, where the sodium carbonate hand-
wash of both hands turned pink; the notes were produced and their
numbers tallied. Hand-wash solutions and the shirt were seized as
M.O.2 to M.O.5; the notes are M.O.1.
(e) After investigation, and after sanction (Ex.P.23) obtained
from the Superintendent Engineer, TNEB, Mr.N.Vadivelu (since
deceased), final report filed on 18.05.2015 for offences under
Sections 7 and 13(2) r/w 13(1)(d) of the Act.
3. The prosecution examined PW.1 to PW.12, marked Ex.P.1 to
Ex.P.23 and M.O.1 to M.O.5. The appellant, questioned under Section
313 Cr.P.C., denied the incriminating circumstances as false. He
examined one Jeganathan, a priest of the Vinayagar temple at
Ganapathipalayam Four Roads, as D.W.1. No document was marked
for the defence.
4. The trial Court held that (i) the appellant is a public servant
and Ex.P.23 is a valid sanction proved through PW.11; (ii) the demand
was proved by PW.1, corroborated by PW.8 and PW.2; (iii) acceptance
and recovery were proved by PW.1, PW.2 and PW.10 and the positive
phenolphthalein test; (iv) the presumption under Section 20 of the
Act arose and was not rebutted, the evidence of D.W.1 being found
unbelievable and uncorroborated; and (v) the contradictions pointed
out by the defence were minor. The appellant was convicted
accordingly.
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5. Mr. T. Gowthaman, learned Senior Counsel for the appellant,
submitted that Ex.P.23 itself bears the description "model sanction
order". The sanctioning authority died before he could be examined.
PW.11, who spoke for him, admitted that he initialled the sanction
before it signed, yet his initial is absent on the original. The
documents were handed to the Superintendent Engineer on
06.02.2012, the very date on which Ex.P.23 is dated, and the
Investigating Officer says he received the sanction only on
22.06.2012. There is no real proof of application of mind. Further,
prosecution rests on PW.1, who is interested, and his wife PW.8, a
motive of enmity with the Chairman of the Vellottamparapu
panchayat suggested. The dates of the alleged demands vary from
witness to witness and the trial Court itself stitched them together.
The complaint was given almost four weeks after the first alleged
demand.
6. The learned counsel for the appellant would submit that the
appellant, a Foreman, no authority to sanction the electricity service
connection or installation of post. Ex.P.9, the work order issued by
the Department, and PW.4 handed over the test report on the very
day of the trap on the appellant's phone instruction, which is
inconsistent with any refusal to proceed without payment. The
learned counsel further submitted that PW.1 gave contradictory
versions of how he reached the bus stop. The said Rajaram, the
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CRL A.No.705 of 2023
second official witness, not examined; PW.1 was in repeated
telephone contact with a third number said to be of a Vigilance
constable; the two-wheeler said to have been used by the appellant
never seized; PW.4 said money was recovered before the
phenolphthalein test, and PW.2 said in cross-examination that the test
was done at Ganapathipalayam; and the appellant's custodial
"admission" is inadmissible. The trial Court shifted the burden by
insisting that the accused lead evidence beyond explanation, and
rejected D.W.1 on conjecture.
7 . Mr.S.Udayakumar, learned Government Advocate (Crl. side),
submitted that demand, acceptance and recovery stand proved by the
consistent evidence of PW.1, PW.2, PW.8 and PW.10, supported by the
call records (Ex.P.18) and the positive hand-wash. PW.3 deposed that
the Foreman is only authorised to fix the meter. The sanction for
prosecution proved by producing the original with the supporting
evidence. The contradictions are minor. The statutory presumption
arose and the defence of D.W.1, who is a villager known to the
appellant, is an afterthought; and that the sentence is lenient. He
prayed that the appeal be dismissed.
8 . I have heard both sides and gone through the judgment of
the trial Court and the records.
9. The points that arise are:
(i) Whether the sanction for prosecution has
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CRL A.No.705 of 2023
been satisfactorily proved?
(ii) Whether the prosecution has proved
beyond reasonable doubt that the appellant
demanded illegal gratification?
(iii) Whether acceptance has been proved so
that the presumption under Section 20 of the Act
could arise, and if so, whether it has been
rebutted?
(iv) Whether the conviction can be sustained?
10. This is a Statutory appeal against conviction. This Court is
entitled, and bound, to re-appreciate the evidence and to reach its
own conclusions, giving due weight to the trial Court's advantage of
seeing the witnesses. The offence is alleged between January and
February 2011, so Section 7 and Section 13(1)(d) of the Act apply as
they then stood.
11 . Demand of illegal gratification is the sine qua non of an
offence under Sections 7 and 13(1)(d). Mere possession or recovery
of tainted currency, without proof of demand and voluntary
acceptance, does not constitute the offence and both must be proved,
whether by direct or circumstantial evidence, before presumption
under Section 20 can be raised. The presumption is rebuttable, and
the accused need only to displace it by preponderance of
probabilities, which he may do by cross-examination, by the
prosecution's own material, or by defence evidence, and not
necessarily by leading evidence. Section 20 by its terms applies to
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CRL A.No.705 of 2023
offences under Section 7 and Section 13(1)(a) and (b); it does not
extend to Section 13(1)(d).
12 . The prosecution must establish that a valid sanction was
granted by the competent authority after the entire relevant material
placed before him and he applied his mind to it. That the
Superintendent Engineer was competent to remove the appellant
spoken to by PW.11 and is not seriously disputed. The proof of
application of mind, however, is not free from mystery and doubt.
First, Ex.P.23 on its face is described as a "model sanction order".
The trial Court brushed aside this by observing that there is no
material that the prosecution supplied a model. That is not an
answer. The description appears on the document itself, and the
natural inference is that the draft originated from the investigating
agency. Secondly, PW.11 is an Administrative Supervisor who says
the authority dictated the order to a typist in his presence. He admits
putting his initial on the sanction before signature, but the original
does not bear it. The explanation that the initial is on the office copy
leaves unexplained why absent in original, further no other materials
produced to substantiate the claim. Thirdly, the exhibit list gives the
date of Ex.P.23 as 06.02.2012, the same day on which, according to
PW.11, the Deputy Superintendent of Police handed over the entire
case file to the Superintendent Engineer, whereas the Deputy
Superintendent of Police (PW.12) records received the sanction order
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only on 22.06.2012. A sanction dated on the day the voluminous
records are delivered, and received months later, calls for a
convincing explanation, when and how the file was examined. The
trial Court neither noticed nor explained these features.
13 . Section 19(3) of the Act and Section 465 Cr.P.C. caution
against upsetting a trial for errors of sanction unless a failure of
justice has resulted. Since, for the reasons below, the appeal must
succeed on merits, I do not find it necessary to hold the proceedings
void on this ground. I record, however, that the prosecution has not
discharged its burden of proving a valid sanction beyond doubt, and
that the circumstances above add to the doubts on the prosecution
case. The alleged demands from 18.01.2011 to 14.02.2011 rest on
PW.1, supported by PW.8. A comparison of the accounts as recorded
by the trial Court shows that they cannot safely be reconciled. Ex.P1,
the application, bears the date 10.12.2010 in the exhibit list, whereas
the prosecution narrative is that the application was made on
14.01.2011. The estimate (Ex.P.7) is dated 19.01.2011 and the work
order (Ex.P.9) 08.02.2011. The sequence of the application and the
alleged demand is thus not firmly established.
14 . Further, PW.8 is the wife of the complainant and cannot be
called independent. The defence suggested that the complaint was
engineered through her by the Chairman of the Vellottamparapu
panchayat, with whom the appellant had enmity, and that political
persons induced the case. Though the trial Court recorded this plea
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CRL A.No.705 of 2023
twice but never decided it. It was a plea which a Court was bound to
weigh when the case on demand turned entirely on the couple's
evidence. Quite apart from the contradictions, the conduct of the
parties on the prosecution's own showing is not consistent with a
demand accompanied by obstruction. PW.1 paid the official fee of
Rs.1,550/- on 07.02.2011, and the Board's staff, not the appellant,
thereafter issued the work order and erected the post on 12.02.2011,
all without any gratification having been paid. On the day of the trap,
according to PW.4, the staff member telephoned the appellant, and on
his instructions handed the test report to PW.1 and directed him to
obtain the signatures of the Executive Officer and the contractor.
That is inconsistent with the case that the appellant had resolved to
stall the connection until paid. The appellant's contention that the
pole and the work order were matters for another officer was
dismissed by the trial Court on the footing that his visit to the house
was unexplained that again shifted the burden.
15 . The only material on demand on 15.02.2011 is the
evidence of PW.1 and PW.2. The trial Court held that the
contradictions pointed out were minor. A closer look shows
otherwise. PW.1, in chief, said that he went to the bus stop in the
Vigilance vehicle, but in cross-examination said he went by bus. PW.2
and PW.10 say they went in the Government vehicle. A complainant
who cannot give a consistent account of how he reached the very
place of the trap, with the trap party, hours after entrustment, is not
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CRL A.No.705 of 2023
a witness whose bare word on what was said at the spot can be
accepted without independent support. Ex.P.18, call details show
contact between PW.1's number and the appellant's number at 04:07,
04:56, 05:14 and 05:48 p.m. They also show, as recorded by the trial
Court calls on the trap day to a third number twice. The appellant
specific contention is that number belongs to a Vigilance constable.
PW.10 himself says that PW.1 repeatedly speaking on the mobile to
"somebody" from about 03.50 p.m. The pattern is that calls to the
third number follow soon after calls to the appellant. Thus, a third
parties involvement and intervention is very much there, but the
Investigating Officer not taken any steps to rule out third parties
intervention and a clear motive against the appellant stands proved.
Further, there is no recording or transcript of any call. The trial Court
declined to consider the point because the appellant not proved the
ownership of the number. But the call record is a prosecution exhibit,
and the person who was apparently in repeated contact with PW.1 in
the middle of the trap was never identified or examined by the
prosecution. I hold that the prosecution left unexplained a
circumstance which bears directly on whether the conversations that
led to the bus stop were spontaneous, while the content of those
conversations rests on PW.1 alone. Further, Rajaram was one of the
two official witnesses. He handled the notes in the demonstration and
according to PW.2 accompanied the trap party throughout, his
examination is necessary, since vital contradiction raised in the
manner of trap.. He was not examined. No explanation is offered. An
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CRL A.No.705 of 2023
adverse inference under Section 114, illustration (g), of the Evidence
Act is warranted.
16. The case is that the test was conducted in the office of the
Assistant Engineer, Thamaraipalayam. PW.2, in cross-examination,
said that it was conducted at Ganapathipalayam for about a quarter
of an hour. D.W.1 independently says that the appellant was first
taken to the Ganapathipalayam EB office and after about 45 minutes
to Thamaraipalayam. The trial Court dismissed PW.2's statement as
"single evidence" without asking why the prosecution's own shadow
witness would say so, and without any re-examination to clarify.
Further, PW.4's evidence, recorded in paragraph 17 of the Judgment
of the trial Court, is that the tainted money was recovered from the
accused even before conducting phenolphthalein test, contrary to
PW.2 and PW.10. The trial Court noted this submission but never
decided it. Instead, in paragraph 74 it held the test-before-recovery
sequence "established" by the evidence of PW.1, PW.2, PW.5 and
PW.10, though PW.5 is only the chemical analyst and cannot speak to
the sequence.
17. It is seen from the records that appellant came on a two-
wheeler and kept the money in his pant pocket, whereas the
prosecution case, M.O.4 and PW.10 speak of the shirt pocket; PW.2
says the appellant produced Rs.530/- from his pant pocket as his own
money. D.W.1 says that the appellant came on foot. The two-wheeler
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not seized, and its ownership and disposal are unexplained. The times
given by the witnesses for the entrustment, the departure and arrival
of the trap party and the arrest also differ among themselves,
ofcourse these may be minor, however, the prosecution witnesses
not consistent on the vital facts and events. Further, though it is the
case of the prosecution, accused received the bribe near the
busstand, near a Temple, the recovery proceedings not conducted in
that place, initially taken to Ganapathipalayam EB Office and
thereafter to Thamaraipalayam EB Office. The occurrence place
shifted as could be seen from the recovery mahazar and rough sketch
are the scene of occurrence shifted, then the presence of witnesses
and materials collected becomes doubtful DW1's evidence confirm
the shifting of scene of occurrence the prosecution not given any
explanation in this regard.
18 . Weighing the evidence as a whole, the prosecution has not
established the demand with the certainty required in a criminal
trial. The earlier demands are spoken to by interested witnesses
whose accounts conflict on dates; the demand on the trap day rests
on a complainant who contradicted himself on how he reached the
spot, and on an official witness whose own evidence on where and
when the test was done supports the defence in part; and the second
official witness, the call records, the seizure of the vehicle and the
sequence of recovery are left unexplained. The trial Court's
reasoning that the contradictions were "minor" is not backed by any
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sound reasoning.
19 . The positive phenolphthalein result and the recovery of
M.O.1 show that the appellant's hands and shirt pocket came into
contact with the tainted notes. They do not, by themselves, prove that
he demanded the money or knowingly and voluntarily accepted it as
gratification. In order to prove the defence, the appellant had
examined D.W.1 / Jaganathan / Priest of a Temple in front of which
the incident occurred and according to him, a person standing by the
temple kept something into the shirt pocket of the appellant, two or
three men seized his hands, and he was dragged to a jeep parked
some 300 feet away. Since demand is not proved beyond reasonable
doubt, the presumption under Section 20 does not arise. The trial
Court erred in law in observing that the appellant must "produce any
evidence other than mere explanation" and in treating D.W.1's
evidence as "weak" for want of corroboration. The accused's burden
is only to raise a probable defence, which can be done through the
prosecution witnesses as well as through defence evidence. A single
witness who is not shown to be unnatural cannot be rejected merely
for lack of corroboration.
20 . Even if the presumption were available, it would apply only
to the offence under Section 7; it has no application to Section 13(1)
(d). For a conviction under Section 13(2) r/w Section 13(1)(d), the
prosecution had to prove that the appellant obtained a valuable thing
or pecuniary advantage by corrupt or illegal means or by abusing his
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position. There is no proof of that other than the alleged demand and
acceptance, which fail for the reasons already given. The trial Court
proceeded on the footing that, because the appellant was handled by
the trap party, the recovery of M.O.1 and the positive hand-wash
completed the prosecution's case, and then required the accused to
prove his innocence. That approach is contrary to the settled law. It
overlooked the contradictions on material aspects, did not decide the
defence of enmity, rejected the defence evidence on conjecture, and
found demand on dates that are not consistently proved. The
conviction is not sustainable.
21 . For these reasons I answer the points for determination as
follows: (i) the proof of sanction is unsatisfactory, but it is
unnecessary to hold the proceedings void; (ii) demand is not proved
beyond reasonable doubt; (iii) acceptance is not proved so as to raise
the presumption under Section 20, and in any event a probable
defence has been made out; and (iv) the conviction cannot be
sustained.
22 . In the result, this Criminal Appeal is allowed and the
appellant is acquitted of all the charges. The conviction and sentence
passed in C.C.No.37 of 2015 (CNR No.TNED04-000236-2015) by the
learned Chief Judicial Magistrate / Special Judge, Erode, vide
Judgment dated 12.06.2023, are set aside. The bail bond, if any,
executed by the appellant shall stand cancelled. The fine amount, if
any, paid shall be refunded to the appellant.
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CRL A.No.705 of 2023
16 .10.2026
Index : Yes / No
Internet : Yes / No
mpk

M.NIRMAL KUMAR, J.
mpk
To
1. The Chief Judicial Magistrate / Special Judge, Erode.
2. The Deputy Superintendent of Police,
Vigilance & Anti-Corruption, Erode.
3. Public Prosecutor, High Court, Madras

Pre-Delivery Judgment made in
CRL.A.No.705 of 2023
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CRL A.No.705 of 2023
16.10.2026
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