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CASE NO.: Appeal (crl.)  186 of 2000

PETITIONER: T. Subramanian                                          

RESPONDENT: State of Tamil Nadu                                    

DATE OF JUDGMENT: 04/01/2006

BENCH: S B Sinha & R V Raveendran

JUDGMENT: J U D G M E N T

RAVEENDRAN, J.

       This appeal by the accused is against the judgment dated  8.10.1999 of the Madras High Court in C.A. No.627 of 1992,  convicting him under Section 5(1)(d) read with Section 5(2) of  the Prevention of Corruption Act, 1947 (for short ’the Act’).  By the said judgment, the High Court reversed the judgment  dated 29.7.1991 passed by the Special Judge, Thanjavur  District at Kumbakonam in Special Case No.2/1988 acquitting  the accused.  2.         The case of the prosecution was as follows :

2.1)      The appellant was working as the Executive Officer of  Sri Swarnathaneswar Temple, Chithaimoor, Tamil Nadu from  September, 1985.

2.2)      That one Shivashanmugam (PW-1) was in occupation  of six cents of temple land (situated behind his house). PW-1  approached the appellant in June, 1987 for securing a patta in  his favour  in respect of the said land. The appellant told him  to apply to the concerned authorities, namely, the Deputy  Commissioner and the Assistant Commissioner (Endowments)  and that he would help him in securing the patta. On 2.7.1987,  the appellant sent word to PW-1 to meet him. PW-1 along with  his friend (PW-2) went and met the appellant. The appellant  then demanded Rs.450 to help PW-1. Subsequently, the  appellant reduced the demand to Rs.300 and  enquired as to  how much money he was having. PW-1 stated that he was  having Rs.100/- and paid the said sum of Rs.100/- to the  appellant. The appellant told PW-1 that only if he (PW-1) paid  the balance amount, he would make arrangements for transfer  of patta. He reiterated the demand on 9.7.1997 when PW-1 and  PW-2 again met him and paid Rs.250/- towards lease arrears  due by PW-1. 2.3)         As PW-1 was not willing to pay the bribe, he gave a  complaint (Ex. P-1) to the Inspector-Vigilance and Anti- Corruption, Thanjavoor (PW-13) on 10.7.1987. At that time,  PW-2 accompanied PW-1. PW-13 prepared the FIR (Ex.P-20).  Thereafter, PW-13 introduced the complainant to two  witnesses, namely, Kulandaivelu (PW-3), an Engineer, and  Santhanagopalan, a Clerk. PW-1 handed-over Rs.200/- (that in  4 currency notes of Rs.50 each) to PW-13. Their numbers were  noted and after explaining the procedure, the currency notes

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were coated with a chemical and returned to PW-1. Thereafter,  PW-1, PW-2 and PW-3 were instructed as to how they should   act when they went to meet the appellant.  2.4)         Thereafter, PW-1, PW-2, PW-3, PW-13, the Deputy  Superintendent of Police and Santhanagopalan went to  Chithamoor. They reached at about 8.15 p.m., parked the  vehicles near the temple and PWs.1 to 3 were sent inside. PW- 1 and PW-2 went inside and PW-3 stood near the door. PW-1  stated that  he had brought Rs.200/- demanded by the appellant  and gave the chemically treated currency notes to him. On  receiving the same, the appellant stated that he has received  PW-1’s petition and he would finish the work. PW-2, who  accompanied PW-1, also requested the appellant to do the  needful. Then they came out and gave the agreed  signal. The  Inspector of Police and Deputy Superintendent of Police, who  were standing outside came inside. On the appellant being  identified by PW-1, he was asked whether he had received the  amount. The appellant was holding the amount in his right  hand, shifted it to his left hand and thereafter kept it on the  table. Necessary chemical test was conducted and the amount  was recovered. On query from the Inspector, the accused  explained that PW-1 had paid the amount as due by  Thyagarajan (PW-6) to the temple by way of lease arrears.  Mahazar, sketch and search list were drawn up.

3.      On behalf of the prosecution, 13 witnesses were  examined in Ex. P-1 to P-21 marked, apart from MO 1 to 3.  On behalf of the defence, DW-1 and DW-2 were examined and  Ex. D-1 to D-10 were exhibited.  

4.      The case of the defence was as follows :  

4.1)    On 10.7.1987, PW-1 came along with PW-2 and stated  that one Thyagarajan (PW-6) who was due in lease amount to  the temple, had requested him (PW-1) to hand-over Rs.200  towards his lease rent arrears. The complainant received it and  offered to give the receipt. But PW-1 told that Thyagarajan  would himself come and collect the receipt the next day. He  offered the said explanation when the Police Inspector sought  his explanation immediately after the incident.  

4.2)     According to the appellant,  the complaint by PW-1 and  the subsequent trap was an act of vengeance by PW-1 (in  connivance with PW-2 and PW-6) in view of their nurturing   enmity towards him. First reason for the enmity was the  dismissal of one Dhanapal, PW-1’s cousin, who was an  employee of the temple and on account of certain misconduct  committed by him, (vide Ex. D-7 dated 16.1.1986) in  pursuance of action taken by the appellant. Eversince then,  PW-1 and PW-2 were nurturing a grudge against the appellant,  thinking that he was responsible for the dismissal of Dhanpal.  The second reason is that PWs.1, 2 and 6 had committed  trespass/encroachment on the temple land and the appellant as  the Executive Officer had filed a case being O.S. No.309/87  and obtained an order of injunction against them. As their  attempts to illegally occupy the temple land were frustrated by  the appellant, in order to wreak vengeance, the trio had hatched  a conspiracy to involve him in a criminal case.  The enmity is  also proved by the complaints (Ex. D-6 dated 3.10.1985 and  Ex. D-1 dated 18.10.1985) which had been given by PWs.1, 2  and 6 against the appellant to the Deputy Commissioner,  Religious & Charitable Endowments, and to the Revenue  Tehsildar, Mannargudi, with a demand to transfer the  appellant.

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5.      The Special Judge considered the evidence in detail. He  held that the appellant had given a reasonable and satisfactory  explanation for receiving Rs.200 from PW-1 in the presence of  PW-2, by stating that the amount had been tendered by PW-1  as having been sent by PW-6 towards his lease rent arrears. He  also held that the prosecution had failed to establish beyond  reasonable doubt the three essential ingredients, namely, the  demand, delivery and acceptance of the sum of Rs.200/- by the  appellant as illegal gratification. Consequently, by judgment  dated 13.7.1991 the appellant was acquitted.

6.       The State preferred an appeal. The High Court  allowed  the appeal by its judgment dated 8.10.1999. The High Court  held : (a) that the prosecution had proved that the accused has  received the sum of Rs.200 (MO-1 series) from PW-1; (b) that  the evidence of PWs.1, 2, 3 and 13 established that the said  amount was received as illegal gratification in connection with  grant of patta in favour of PW-1 in respect of 6 guntas of  temple land; and though the appellant was not authorized to  grant patta, he had to initiate a note recommending the grant as  the Executive Officer of the temple and, therefore, there was a  reason for the demand, and acceptance was established; (c) the  defence case that PW-6 had sent the said amount through PW- 1 towards lease rent cannot be accepted in view of PW-6 in his  evidence denying that he had sent any lease rent through PW- 1, though he admitted that at that time he was in arrears of  lease rent  in a sum of Rs.200/- to Rs.500/-.

       Consequently, the High Court convicted the appellant  under Section 5(1)(d) read with Section 5(2) of the Act. As the  appellant alleged that he was already 67 years of age, and had  retired nearly 9 years ago, that he had a daughter of  marriageable age, that he did not own any property and was  residing in a rented house and that he and his wife were not  keeping good health,  the High Court took a lenient view and  awarded the sentence of imprisonment till the rising of the  court and payment of Rs.1000/- as fine; and in default to  undergo RI for one month. As the accused was present in  court, he underwent the sentence also. The said conviction and  sentence is challenged  by the appellant in this appeal.

7.     Mere receipt of Rs.200/- by the appellant from PW-1 on  10.7.1987 (admitted by the appellant) will not be sufficient to  fasten guilt under Section 5(1)(a) or Section 5(1)(d) of the Act,  in the absence of any evidence of demand and acceptance of  the amount as illegal gratification. If the amount had been paid  as lease rent arrears due to the temple or even if it was not so  paid, but the accused was made to believe that the payment  was towards lease rent due to the temple, he cannot be said to  have committed any offence. If the reason for receiving the  amount is explained and the explanation is probable and  reasonable, then the appellant had to be acquitted, as rightly  done by the Special Court. In Punjabrao v. State of  Maharashtra [2002 (10) SCC 371], the accused, a patwari,  was on a campaign to collect loan amounts due to  Government. The complainant therein was admittedly a debtor  to the Government. The accused explained that the amount in  question was received towards loan. This Court accepted such  explanation (though such explanation was not immediately  offered as in this case, but was given only in the statement  under Section 313) holding thus :-  

"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

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consideration is whether that explanation can  be said to have been established. It is further  clear that the accused is not required to  establish his defence by proving beyond  reasonable doubt as the prosecution, but can  establish the same by preponderance of  probability."  

In Chaturdas Bhagwandas Patel v. The State of  Gujarat (AIR 1976 SC 1497), this Court held that the burden  that rests on an accused to displace the statutory presumption  that is raised under Section 4(1) of the Act, is not onerous as  that cast on the prosecution to prove its case. But such burden  has to be discharged, by bringing on record evidence, either  direct or circumstantial, to establish with reasonable  probability, that the money was accepted by him, other than as  a motive or reward as is referred to in Section 161 IPC.  

In State through Inspector of Police, Andhra Pradesh  v. K. Narasimhachary [2005 (8) SCALE 266], we have  reiterated the well recognized principle that if two views are  possible, the appellate court should not interfere with the  acquittal by the lower court; and that only where the material- on-record leads to a sole and inescapable conclusion of guilt of  the accused, the judgment of acquittal will call for interference  by the appellate court.  

8.          We may briefly refer to the evidence keeping the said  principles in view. The evidence no doubt established that PW- 1 accompanied by PW-2 went to PW-13 and gave a complaint,  that a trap was arranged, the currency notes were chemically  treated, that PW-1 delivered the chemically treated currency  notes (Rs.200/-) to the appellant in the presence of PW-2, that  the appellant received the said amount, that the same was  recovered by the raiding party from the appellant, and that the  appellant’s hands turned pink when dipped in the chemical  solution. The above evidence no doubt proves that a sum of  Rs.200/- was paid by PW-1 to the appellant. But the crucial  question is whether the appellant had demanded the said  amount as illegal gratification to show any official favour to  PW-1 and whether the said amount was paid by PW-1 and  received by the appellant as consideration for showing such  official favour. The evidence clearly shows the contrary as will  be evident from the following :

(a)     One Dhanapal, cousin of the complainant - PW-1,  was dismissed from service of the temple on  16.1.1986 by an order of dismissal (Ex. D7) issued by  the appellant in his capacity as Executive Officer of  the temple, for misconduct, on action initiated by the   appellant. This is established by documentary  evidence as well as oral evidence of DW-2 (one of  the trustees of the temple); (b)     The appellant as Executive Officer of the temple, has  taken several steps to prevent encroachment and  collect the arrears due to the temple. He had initiated  legal action against PWs.1, 2 and others when they  attempted to encroach upon the temple land and,  therefore, they were inimical towards the appellant.  This is clear from the evidence of DW-2. (c)     PWs.1, 2 and 6 were signatories to the complaints  (Ex. D-1 and D-6) given in year 1985 to the Revenue  Officer and to the Deputy Commissioner of Religious

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& Charitable Endowment seeking transfer of the  appellant. This is established by evidence of DW-2. (d)      PW-6 was in fact due in a sum of Rs.400 to Rs.500  towards lease rent to the temple (admitted by PW-6).  Within 15 minutes to half an hour of the alleged  payment of illegal gratification (trap), when asked to  explain the possession of the said sum, the appellant  explained that it was paid by PW-1 on behalf of PW- 6 towards the arrears of lease rent with a request that  the appellant should issue a receipt to PW-6 the next  day.  (e)     PW-2 is a close friend and confidante of PW-1 and  PWs.1, 2 and 6 had a common grievance against the  appellant in view of the action taken by him to  protect the temple land from encroachment. (f)     Neither PW-1 nor PW-2 nor PW-3 say that the  appellant demanded any money as illegal  gratification on 10.7.1986. The evidence is that PW-1  went in along with PW-2 and handed over the sum of  Rs.200/- to the appellant saying that he had brought  the amount. There is nothing about the payment  being made or received as illegal gratification. On the  other hand,  DW-1, a clerk in the temple has stated  that on 9.7.1987 at about 11 a.m., PW-1 came to the  temple office and informed the appellant that PW-6  had given him money for paying lease rent, that he  had spent the amount and he will come and pay it the  next day. This shows that the payment on 10.7.1986  was towards the arrears due by PW-6.

9.          The High Court did not consider the explanation offered by  the appellant for the receipt of the money nor the previous enmity  harboured by PW-1, PW-2 and PW-6 towards the appellant. Nor did  it hold that the decision of the trial court  was erroneous or perverse.  Re-appreciating the very evidence (on which the trial court had  reached the conclusion that the payment was not by way of an illegal  gratification but was towards lease rent due by PW-6 and paid  through PW-1), the High Court relying on the evidence of PW-1,  PW-2 and PW-6  concluded that the payment was by way of illegal  gratification. In particular, it relied on the denial by PW-6 that he had  sent any amount through PW-1, against the appellant.  But the mere  denial by PW-6 that he had sent the money through PW-1 cannot be a  ground to hold the appellant guilty. If PWs.1, 2 and 6 had hatched a  conspiracy to involve the appellant in a criminal case, naturally PW-6  would deny having sent the amount through PW-1. The explanation  given by the appellant immediately after the incident clearly explains  all the circumstances and raises not only a reasonable but very serious  doubt about the amount having been received by him as illegal  gratification.    

10.     The evidence throws out a clear alternative that the accused  was falsely implicated at the instance of PWs.1, 2 and 6. If two views  were possible from the very same evidence, it cannot be said that the  prosecution had proved beyond reasonable doubt that the appellant  had received the sum of Rs. 200/- as illegal gratification.  We are,  therefore, of the considered view that the trial court was right in  holding that the charge against the appellant was not proved and the  High Court was not justified in interfering with the same.

11.          We, therefore, allow this appeal, set aside the order of the  High Court and restore the order of the trial court, acquitting the  appellant of the charge.