REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 402 OF 2002

Subbu Singh ….Appellant

Versus

State by Public Prosecutor ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge  

of  Madras  High Court  setting  aside  the  judgment  of  acquittal  passed by  

learned Chief Judicial Magistrate cum Special Judge, Erode, Tamil Nadu.  

Appellant faced trial alongwith one Rajappan.  The appellant faced trial for

alleged commission  of  offence punishable  under  Section 7 read with 12,  

13(2) read with Section 13(1)(d) read with Section 12 of the Prevention of  

Corruption Act, 1988 (in short the ‘Act’).  The trial court directed acquittal  

of both the accused persons.  The High Court upheld the acquittal so far as  

the  co-accused is  concerned,  but  set  aside  the  judgment of  acquittal  and  

directed conviction for the appellant for charged offences.  The minimum  

sentence  of  six  months  and  fine  with  default  stipulation  for  the  offence  

punishable under Section 7 of the Act and one year’s rigorous imprisonment  

with fine with default stipulation for the offence under Section 13(2) read  

with Section 13(1)(d) of the Act were awarded.

2. Prosecution version in a nutshell is as follows:

Subbusingh  (Al),  the  appellant  was  working  as  Sub  Inspector  of  

Police at Sathiyamangalam Police Station. Rajappan (A2), is the friend of  

Al. There was a land dispute between Renga Naicker (P. W.4) and Thippa  

Naicker  (P.W.21).  Both  of  them quarreled  with  each  other  on  6.7.1991.  

Nagarajan (P.W.5), relative of P.W.4 came to the Sathiyamangalam Police  

Station and complained to Al Sub Inspector of Police orally against P.W.21.  

Al directed the Police constables P.W.11 and P.W.12 to go the spot to bring  

P.W.21. Accordingly, they went to the scene of occurrence and found that  

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P.W.21 was lying down with injuries. The Constables took the injured and  

others to the Police Station.

In the meantime, Selvan (P.W.2), brother-in-law of P.W.21 followed  

them to the Police Station. Since the injured P.W.21 was not taken to the  

hospital, P.W.2 requested A1 to send him to hospital. As, permitted by Al,  

the injured was taken in an Auto to a private hospital run by Dr. Thangavel  

(P.W. 10). After taking injection from the hospital, PW 21 and others came  

back to Police Station. P. W.2 was asked to come back in the evening.

Accordingly, P.W.2 went to the Police Station at 5.00 P.M. At that  

time, the Police obtained Muchalika from both the sides stating that they  

would settle the matter by approaching the Civil Court. Then, Al directed  

P.W.21 and others to wait outside the Police Station and act as per the  

instructions of one A2  who is the friend of A 1.

Within a few minutes, A2 came and informed P.W.2 that Al had  

asked him to get Rs.500/- from them. Natarajan (P.W.22), son of P. W.21  

told that he was having only Rs.100/-. A2 after getting instruction from  

Al  asked  them  to  give  Rs.100/-.  P.W.22  told  A2  that  Rs.100/-  was  

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required  to  buy  medicine.  Then,  A2  told  them  that  he  would  give  

Rs.100/- from his pocket and handed over the same on behalf of P.W.21  

at nearby bangle shop where P.W.8 was doing business. A2 directed him  

to bring Rs.100/- and another Rs.400/- being the balance to be paid to Al.  

Then, they were allowed to go.

On 7.7 1991 Al visited the land and gave the message that both PWs.  

2 & 4 should meet him in the evening. PW2 met Al at about 5.00 P.M. in  

the Police Station. At that time, Al asked him whether he had brought the  

amount and PW2 told him that the money was not ready. Al told him that  

already  the  amount  of  Rs.100/-  was  received  through  shop  owner  and  

balance amount of Rs.400/- should be paid, or otherwise he would put up a  

case against P.W.21 on the complaint of PW5 PW 2 told him that he would  

bring on 12.7.1991.  Then PW2 informed this to PW21.

Since PW2 did not want to give bribe he gave a complaint Ex.P2 to  

the Inspector of Police, Vigilance (PW26) on 11.7.1991 at about 4.30 PM.  

P.W.2  was  asked  to  come  to  the  Vigilance  Office  next  day.  In  the  

meantime, P.W.26 requested the assistance from Manokaran (P.W.3) and  

one Jagadeesan, working in the Tamil Nadu Electricity hoard.

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Next day morning, the pre-trap mahazar was prepared by observing  

required formalities. The test was demonstrated by applying phenolphthalein  

powder on the currency notes of Rs.400/- handed over by PW.2.  Then all of  

them went to the Police Station in the early morning of 12.7. 1991 Since Al  

was not available,  they went to his house which is  situated in the police  

quarters.  Then, PWs. 2 & 3 alone were asked to go inside. P.W.2 gave the  

balance amount of Rs.400/- to Al, who in turn received it by his left hand.  

Then, he promised that he would take care of the case against P. W.21. Both  

P.Ws.2 and 3 came out and gave a signal.

Thereafter, P.W.26 and his men entered into the house. At that time,  

A1  was  having  M  0.1  series  currency  notes  in  his  left  hand.  The  

phenolphthalein  test  on  both  the  hands  was  conducted  which  proved  

positive.

The further investigation was taken up by, Vivekanandan (P.W.27),  

another  Inspector  of  Police.  After examining the witnesses  and obtaining  

sanction, he filed a charge sheet against both the accused 1 and 2.

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During the trial, the prosecution examined P.Ws. l to 27, filed Exs. P1  

to P.21 and marked M.Os. 1 to 6.

During the questioning under Section 313 Cr.P.C., Al stated that he  

was innocent and the currency notes were planted under his chair without his  

knowledge. A2 stated that a false case was foisted against both Al and A2 at  

the instance of one Lawrence under whom PW 2 was working.

The trial court after considering the evidence on record acquitted  

both the accused in respect of the above charges.  

In the appeal before the High Court the stand of the State was that the  

trial court acquitted the accused overlooking the material evidence without  

appreciation of evidence on record in the proper perspective and the finding  

recorded are totally perverse and against the material  and evidence.  The  

accused persons supported the judgment of the trial court.  The reasonings  

for the acquittal were as follows:

(1) PWs. 7 & 8 the shop owners had turned hostile.  In Ex.P.7 The  

Credit Account Book, there is no mention that the second accused had been  

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given the amount of Rs.100/- and that the said amount had been given to the  

first accused.  Since the Muchalika was entered both parties in the police  

Station  and  the  same  was  signed  by  them  on  6.7.1991,  there  was  no  

necessity for the first accused to ask the bribe amount through the second  

accused.

(2) P.W.  21  alone  is  the  aggrieved  person,  as  the  amount  was  

demanded from him only for the purpose of not putting up a case against  

him. So, P. W.2 need not have agreed to pay the bribe amount to Al and he  

need not lodge a complaint before the Vigilance without the knowledge of  

P.W. 21. P.W. 2 must have been instigated by some unknown person.

(3) Instead of lodging a complaint before Erode Vigilance Office  

which  has  got  jurisdiction  over  the  area,  P.W.  2  had chosen  to  lodge  a  

complaint before Coimbatore Vigilance.   There is no explanation for this.

(4) When P.W. 2 entered into the house of Al, he questioned him,  

"Who are you?" If really, the occurrence had taken place on 6.7.1991 and  

7.7.1991 in which P.W. 2 met Al and A2 on both these occasions, there was  

no necessity for Al to put that question. Therefore, the occurrence took place  

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on 6.7.1991 and 7.7.1991 as spoken to by P.W. 2` and P. W. 21 to P. W. 23  

cannot be true.

(5) No complaint was produced before the trial court to show that  

P.W. 4 to P.W.6 on the one side and P.W. 21 and P.W. 23 on the other side  

lodged complaint against each other. Therefore, the evidence of P. W. 2 and  

P. Ws. 21 to 23 cannot be believed.

(6) The evidence of P.W. 12, P.W. 13, P.W. 15 and P.W. 16 the  

Constables attached to Sathiyamangalam Police Station, over the enquiry in  

regard  to  the  complaint  by  both  parties  in  the  Police  Station,  cannot  be  

believed, since there is no entry in the General Diary, The evidence of P.W.  

14,  another  Constable  also  has  to  be  disbelieved,  since  the  Muchalika  

obtained from both parties was not produced. Moreover, Exs. P.12 and P13,  

the Trip Sheets of the Taxi contained the signature of P. W. 27 Vigilance  

Inspector and as such they are fabricated documents.

(7) The phenolphthalein test was not conducted properly. The pre-

trap test was not properly explained to the witnesses P. Ws. 2 and 3. After  

the  trap,  the  signature of  the  first  accused had not  been obtained on the  

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bottles  M.Os.  5  and  6.  This  shows  that  the  test  could  not  have  been  

conducted at the house of Al.

(8) Al received the money by his left hand. When P.Ws. 2 and 3  

entered into the house, Al kept the money in his left hand only, but the test  

conducted  on  both the  right  and left  hands  proved  positive.  There  is  no  

explanation as to how the test on right hand proved positive.

(9) Out of total amount of Rs.500/-, according to the prosecution,  

Rs. 100/- was paid by A2 through P. Ws. 7 and 8 who had turned hostile. P.  

W. 2 admitted that he never paid Rs.100/- to A2 to be given to Al. When the  

receipt of a portion of the demanded amount of Rs.500/- i.e. 100/- had not  

been proved, the trap incident for the receipt of the balance amount of bribe  

could not be believed.

(10) Since the evidence available on record through P.Ws. 2, 3 and  

26  would  not  prove  that  the  accused  has  committed  the  offence  under  

Section 7, presumption under Section 20 cannot be drawn.

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The  High  Court  found  that  the  conclusions  are  erroneous  and  on  

misreading of the evidence.  Accordingly the judgment of the trial court was  

set aside.

4. Learned  counsel  for  the  appellant  submitted  that  considering  the  

limited scope for interference with the judgment of acquittal the High Court  

ought not to have interfered in the matter as the view taken by the trial court  

was a possible view and therefore the High Court should not have interfered.  

The following submissions inter alia were made in support of appeal:

1. Foundation for the demand has been disbelieved;

2. Demand by A2 was disbelieved and was part of the prosecution  

version regarding demand has been disbelieved so the whole thing  

should have been discarded.

5. PW2 should have gone to Erode where there was a Vigilance Officer.  

The  evidence  of  PW2 is  unreliable  and  there  is  no  corroboration  to  his  

evidence. It is unnatural that demand would be made from a person who was  

injured after settlement of the dispute.  The High Court erroneously held that  

PW2 called the witnesses which is not correct.   PW21 did not make any  

complaint  though he is  supposed to be the affected person.   There  is  no  

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signature as alleged.  It is pointed out that PW2 is not directly involved, he is  

brother in law of PW 21.

6. Learned counsel for the respondent State on the other hand supported  

the judgment.  

7. It needs to be pointed out that the recovery was not disputed.  The  

accused stated that with oblique purpose he was trapped.  The money was  

kept in the pocket of the accused.

8. The  case  of  prosecution  with  reference  to  the  enquiry  over  the  

incident on 6.7.1991 is clearly spoken to by P.W. 2, P.W. 21, P.W. 22,   son  

of  PW 21 and P.W. 23 another  relative.  Though the other  party  namely  

P.Ws. 4 and 5 turned hostile, they would admit that the incident took place  

on 6.7.1991 and  that they were called to Police Station by Al, who after  

enquiry  directed  them to  settle  the  dispute  and warned  them That  apart,  

P.W.13,  P.W.14,  P.W.15 and P.W.16 the Constables attached to the said  

Police Station, would also specifically state that the enquiry was conducted  

on the basis of the oral  complaint  of P.W. 5 against  P.W. 21 by Al and  

Muchalika, was obtained from them after giving warning on his instruction.  

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Under  these  circumstances,  there  is  no  reason  to  reject  the  evidence  of  

P.W.2, P.W.13 to P.W.16 and P.W.21 to P.W.23.

9. When  these  acceptable  materials  are  available  through  these  

witnesses, their deposition cannot be rejected merely on the ground that the  

complaints given by P. W. 4 and P. W. 21 were not marked and Muchalika  

obtained  from  both  parties  were  not  produced.   As  a  matter  of  fact,  

Arumugham  (PW  25),  the  Inspector  of  Police,  Sathiyamangalam  under  

whom A1 Sub-Inspector of Police was working specifically stated that the  

complaints of PW 4 and PW 21 were not registered in the Police Station.  

This  shows  that  even  without  receipt  of  the  written  complaint  and  

registration of the same, a mock  enquiry was conducted  by A1 and on the  

pretext of enquiry, a Muchalika was obtained from both the parties.

10. In such a situation, it cannot be contended that the entire enquiry was  

over on 6.7.1991 itself after obtaining Muchalika. The fact that he went to  

the field on 7.7,1991 at about 11.00 A.M. and directed P.W. 2 to come and  

meet  him in the Police Station in the evening itself  would show that the  

parties were made to think that he had not finished the enquiry. Only on the  

said direction, P.W. 2 went and met A1 in the Police Station on 7.7.1991  

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evening. In that context, Al demanded money from P.W. 2 and threatened  

that if he failed to bring the balance amount, namely Rs. 400/-, he would  

initiate  action  against  P.W.  21  on  the  complaint  given  by P.W.  5.  Only  

thereafter  P.W,  2  undertook  to  pay  that  amount  on  Friday  at  the  police  

station

11. This is a case where P.W. 21 was attacked by P.Ws. 4 and 5, as a  

result of which P.W. 21 sustained injuries and fell down on the field and  

became unconscious. Instead of taking action against the persons concerned,  

who attacked P.W. 21, Al detained P.W. 21 from the morning till evening.  

Though  Al  was  requested  by  P.W.21  to  send  him  to  the  Government  

Hospital, Al did not choose to send him to the Government Hospital: on the  

other hand, he was beaten by Al himself for having requested to send him to  

the Government Hospital. This shows that Al did not allow P.W. 2 and P.W.  

21 to get the medical records regarding the injuries sustained by P. W. 21.  

He was sent only to Private Doctor P.W. 10. Though P.W. 10 turned hostile,  

Ex. P.8 marked through him would show, in the light of the evidence of  

P.W. 2 and P.W. 21,  that  P.W. 10 gave  prescription  to  P.W. 21 for  the  

injuries sustained by him.

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12. So  far  as  the  stand  that  money was  kept  for  the  purpose  of  false  

implicating, the same is without substance.  The accused was a police officer  

who knew the consequences of the bribe.  He had not explained as to why he  

took up the money in his examination under Section 313 of the Code.  The  

accused stated that the PW2 took the money because the Inspector asked  

him to do so.  The normal conduct would have been to take action against  

PW2 for offering bribe. Additionally, if matter was closed there was no need  

for going to the field.  It is to be noted that the appellant was alone in his  

room for  sometime  holding  the  currency  notes  before  PW 26 and  other  

officer entered into the house.  Therefore, as rightly observed by the High  

Court, the possibility of appellant counting the money with the help of right  

hand cannot be ruled out.   Once it  is  proved by the prosecution that  the  

money  was  demanded  as  bribe  and  the  same  was  received  from  PW2,  

Section  20  of  the  Act  comes  into  play.  Once  there  is  a  presumption  as  

contemplated under Section 20,  it  is  for the accused to establish that  the  

amount was not received as bribe.

13. Since  minimum  sentence  has  been  imposed  there  is  no  scope  for  

interference with the same.  

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14. Above being the position there is  no merit  in this  appeal  which is  

dismissed.   The appellant shall surrender to custody forthwith to serve the  

remainder of sentence, if any.

……………………..…………J. (Dr. ARIJIT PASAYAT)

……..…………………..………J. (D.K. JAIN)

…………………………..……..J (Dr. MUKUNDAKAM SHARMA)

New Delhi, May 04, 2009

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