NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1684  OF 2010 (Arising out of SLP(CRL.) No.7130 of 2008)

BALASUBRAMANIAN .....APPELLANT.

        VERSUS

STATE:  THR. INSPECTOR OF POLICE  .....RESPONDENT

J U D G M E N T

ANIL R. DAVE, J.

1. Leave granted.

2. Being aggrieved by the Judgment and Order passed in Criminal  

Appeal No.765 of 2000 by the Madras High Court,  the appellant has  

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approached this Court by way of this appeal.  By virtue of the impugned  

judgment,  the High Court has confirmed the Order of conviction dated  

25th August, 2000,  passed by the First Additional District Judge-cum-

Chief  Judicial  Magistrate,  Karur,  whereby  the  appellant  has  been  

convicted under the provisions of Section 7 and Section 13(1)(d) read  

with  Section  13(2)  of  the  Prevention  of  Corruption  Act,  1988,  

(hereinafter  referred  to  as  ‘the  Act’)  sentencing  him  to  undergo  

rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in  

default, to undergo simple imprisonment for two months for each of the  

offences and ordered both the sentences to run concurrently.

3. The facts giving rise to the said criminal case in a nutshell are as  

under:

i) On  11th March,  1991,  the  premises  of  Hotel  Aristo  

Restaurant at Karur had been raided by the officers of the Commercial  

Taxes Department (Enforcement Wing) and as a result of  raid, it was  

found that a fraud was committed in relation to payment of tax.  Upon  

detection of the said fraud, Commercial Taxes Department had taken  

appropriate action and as a result of which tax liability of the proprietor  

was  likely  to  be  enhanced  substantially.   The  appellant,  being  an  

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employee of the Commercial Taxes Department, was connected with the  

aforesaid  raid.   He  sent  a  message  through  the  accountant  of  the  

aforesaid Hotel  to Shri  Thamilarasan (P.W.3),  proprietor  of  the said  

hotel,  to  meet  him  personally  so  that  the  matter  can  be  settled.  

Intention  of  the  appellant   allegedly  was  to  have  some  illegal  

gratification from the proprietor of the said hotel under a pretext that  

he would do the needful for reduction of the amount of tax  which was  

claimed by the Department from the proprietor of the Hotel.

ii) P.W.3 thereafter met the appellant on 11th December, 1991,  

and at that time the appellant demanded a sum of Rs.5,000/- by way of  

illegal gratification  so as to do the needful for reducing the tax and/or  

penalty.    P.W.3  was  not  inclined  to  give  the  said  amount  as  illegal  

gratification  and,  therefore,  he   contacted  the  Anti  Corruption  

Department  (Vigilance  Police)  and  gave  a  complaint.   The  said  

complaint had been registered as C.R.No.8/91 V & AC, Tiruchy Dist.  

Under Section 7 of the Act and in pursuance of the said complaint a  

trap had been laid by the Anti Corruption Department.  In pursuance  

of the said trap P.W.3 had paid a sum of Rs.5,000/-  to the appellant  

who had accepted the said amount and had thereafter kept the amount  

in  the left  pocket of  his  trousers.   At that time,   the pre-determined  

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signal was given by P.W.3,  to the trap team and therefore, the Members  

of the trap team  raided the place and caught the appellant red handed.  

The Sodium Carbonate Solution test was carried out and the same was  

found  to  be  affirmative  denoting  acceptance  of  the  amount  by  the  

appellant.

iii) Necessary investigation was made by the Inspector of Police  

(P.W.12) and ultimately charge sheet was filed and on examination of  

witnesses  and upon careful  consideration of  the entire  evidence,   the  

learned First Additional District Judge-cum-Chief Judicial Magistrate,  

Karur,  found the appellant guilty of the charges levelled against him  

and  accordingly  the  order  of  conviction  dated  25th August,  2000,  

referred to hereinabove was passed by the learned judge.

4. Being aggrieved by the Order dated 25th August, 2000, passed by  

the  First  Additional  District  Judge-cum-Chief  Judicial  Magistrate,  

Karur, the appellant filed Criminal Appeal No.765 of 2000, before the  

Madras High Court but the same was dismissed and being aggrieved by  

the Order  of  dismissal  passed by the Madras  High Court  dated 10th  

December, 2007,  this appeal has been filed.

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5. The learned counsel appearing for the appellant has vehemently  

submitted that it is not established that a sum of Rs.5,000/- which was  

paid to the appellant was paid towards illegal gratification.  It was also  

submitted  by him that  the said amount was paid to  him by P.W.3,  

towards  his  liability  to  pay tax.   The next  submission  was   that  the  

appellant is an employee working in the Commercial Taxes Department  

(Enforcement Wing) and it was an admitted fact that P.W.3 had to pay  

a  huge  amount  towards  tax  and,  therefore,  P.W.3  had  attended  the  

office of the appellant to make part payment of said amount of tax.  It  

was submitted by the counsel that as an employee of the Commercial  

Taxes  Department,   it  was  the  duty  of  the  appellant  to  accept  the  

amount as part payment of tax paid by P.W.3 and there was nothing  

wrong in accepting the amount on behalf of the Department and that  

the aforesaid relevant fact had not been considered either by the First  

Additional District Judge-cum-Chief Judicial Magistrate, Karur or by  

the High Court and, therefore,  the courts below committed a serious  

error  which  has  resulted  into  gross  injustice  and  conviction  of  the  

appellant.   Except the aforesaid submission, no other submission was  

made by the learned counsel appearing for the appellant.

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6. The learned counsel  representing the State,  on the other hand,  

submitted  that the submission made by the learned counsel appearing  

for the appellant before this Court had never  been advanced before the  

trial court or before the High Court.  Even while giving an explanation  

under Section 313 of the  Cr.P.C., the appellant had not given any such  

explanation with regard to receipt of the amount.  Had the submission  

made before this Court been true, the said fact would have been stated  

at the time of trial by the appellant particularly while giving a statement  

under Section 313 of the Cr.P.C.  It was, therefore, submitted that the  

afore-stated submission,  made for the first  time and that too without  

any support, should not be accepted by this Court and the Order of the  

High Court confirming the conviction should be confirmed.

7. We heard the learned counsel  and also  noted the fact  that  the  

submission made by learned counsel  appearing for the appellant had  

not  been made earlier.   Had the submission made before  this  Court  

been correct,  the appellant would have made such a statement at the  

time of the trap or he would have revealed the said fact while making  

the statement under Section 313  of the Cr.P.C.

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8. It  is  a  known fact  that  the  accused is  given an opportunity  to  

explain the circumstances appearing in the evidence against him after  

the witnesses for the prosecution are examined.  The appellant was also  

given  such  an  opportunity  as  per  provisions  of  Section  313  of  the  

Cr.P.C. but the appellant did not give any explanation in relation to the  

amount accepted  by him.   We have  carefully  gone through the  said  

Statement  but  we  could  not  find  such  an  explanation  given  by  the  

appellant and, therefore, at this stage we can not accept the submission  

made  by  the  learned  counsel  for  the  appellant  that  the  said  sum of  

Rs.5,000/- was paid to him by P.W.3 towards his tax liability.     

9. From what has been stated hereinabove, it is crystal clear that for  

the first time the learned counsel appearing for the appellant has made  

an effort to make out a different case to an effect that the appellant had  

accepted the amount of tax payable by P.W.3 and the amount was not  

received as an illegal gratification.  We do not find any substance in the  

aforesaid argument.   

10. Having    gone   though    the   records,   we   are    satisfied    that   

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prosecution was able to prove their case to the hilt.  There is no error in  

the judgment of the High Court.

11. The order of  conviction passed by the First  Additional  District  

Judge-cum-Chief Judicial Magistrate, Karur and the order of the High  

Court  confirming  the  above-stated  order   are  just  and  proper.  The  

appeal is dismissed accordingly.

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

                          ……...........................................J.                                                                        (ANIL R. DAVE)

New Delhi September  06,  2010.  

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