State Tr.Insp. of Police  INSC 702 (6 September 2010)
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.
ANIL R. DAVE, J.
aggrieved by the Judgment and Order passed in Criminal Appeal No.765 of 2000 by
the Madras High Court, the appellant has 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
facts giving rise to the said criminal case in a nutshell are as under:
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 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
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 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.
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.
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.
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.
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.
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.
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.
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.
gone though the records, we are satisfied that prosecution was able to prove
their case to the hilt. There is no error in the judgment of the High Court.
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.
(Dr. MUKUNDAKAM SHARMA)
(ANIL R. DAVE)