T.
Subramanian Vs. State of Tamil Nadu [2006] Insc 9 (4 January 2006)
S B
Sinha & R V Raveendran 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 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.
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
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 & 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.
g.
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.
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