Appeals filed under Sec.374 (2) Cr.P.C against the Judgment of the learned VII Additional Sessions Judge, City Civil Court, Chennai in CC Nos.14 of 2004 dated 2.4.2009.

The appellant in C.A.No.172 of 2009 was convicted for the offence under Section 7 of Prevention of Corruption Act and sentenced to undergo 3 years RI and to pay a fine of Rs.3,000/- and also convicted for the offence under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act and sentenced to undergo 4 years RI and to pay a fine of Rs.5,000/- by the learned VII Additional Sessions Judge, City Civil Court, Chennai in C.C.No.14 of 2004 dated 2.4.2009.

The appellant in C.A.No.173 of 2009 was convicted for the offence under Sec.7 r/w Sec.12 of Prevention of Corruption Act and sentenced to undergo 3 years RI and to pay a fine of Rs.3,000/- and also convicted for the offence under Sec.13(1) r/w Sec.13(2) of Prevention of Corruption Act r/w 109 IPC and sentenced to undergo 4 years RI and to pay a fine of Rs.5,000/- by the learned VII Additional Sessions Judge, City Civil Court, Chennai in C.C.No.14 of 2004 dated 2.4.2009.

2. The case of the prosecution in a nutshell is as follows:

P.W.2 one Shivakumar was the publisher and the editor of a newspaper by name "Evening Post". He was having an office at 4/5, Abibullah Road, T.Nagar, Chennai. The appellant in C.A.No.172/2009, hereinafter referred to as the first appellant, was working as Crime Inspector in Tenyampet Police Station and the appellant in C.A.No.173/2009 (hereinafter referred to as the second appellant) was a Police Constable cum Driver of the police jeep attached to Teynampet Police Station. P.W.2 purchased EPBX System from one Joseph. The payment was by instalments. On delivery of the instrument, he paid sum of Rs.13,000/-. After 45 days, he has to pay the balance of Rs.25,000/-. Before the payment of the second instalment, the system failed. There arose a dispute between the dealer and P.W.2. For such dispute, P.W.2 was called over to Teynampet Police Station on 9.12.2002. P.W.2 did not go. He contacted the first appellant on 11.12.2002 over phone. The first appellant told P.W.2 that he can sort out the problem, if P.W.2 takes care of him. When P.W.2 enquired what did he mean by "take care", appellant demanded Rs.2,000/-. Not willing to pay Rs.2000/-, P.W.2 lodged a complaint on 12.12.2002 before the Vigilance and Anti-corruption cell. He met one Rajendran, Deputy Superintendent of Police and gave a complaint, who registered a case in Cr.No.12/AC/2002/CC2 for the offence punishable under Sec.7 of Prevention of Corruption Act 1988.

3. The Deputy Superintendent of Police invited P.W.3, one Jagan, who was working as Assistant Executive Engineer and one Venkatesan, who was working as Assistant Engineer in Agricultural Department to be the official witness. He introduced P.W.2 to the official witnesses and explained the pre-trap proceedings. P.W.2 produced Rs.2000/- in fifty rupees denomination. The pre-trap proceedings were carried out and the Deputy Superintendent of police explained the importance of the phynoptheline test. Thereafter, P.W.2 and P.W.3 proceeded to the office of P.W.2. Around 5.30 p.m, appellants came to the office. P.W.2 and P.W.3 were sitting inside the office and the first appellant came inside and enquired about P.W.3, for which, P.W.2 introduced him as one of the staff working in the office. Then, the first appellant was said to have demanded the money and P.W.2 handed over Rs.2,000/-. The first appellant asked for a cover and P.W.2 handed over a evening post cover. The first appellant put the money inside the cover and kept it in his pant pocket. The first appellant came out of the office and P.W.2 followed him and as pre-arranged, he signalled to the waiting vigilance officers. While the appellants were about to leave in their Jeep, the Deputy Superintendent of Police intercepted. On seeing the Vigilance Officer, the first appellant handed over the cover containing the money to the second appellant.

4. On the direction of the Deputy Superintendent of Police, the appellants and the witnesses went inside P.W.2's office. The second appellant produced the cover and the Deputy Superintendent of police conducted the post-trap proceedings. In the Phenoptheline test, the fingers of both the appellants answered positive. The Deputy Superintendent of police arrested the appellants and seized the tainted money, phenoptheline solutions under various magazars. He also investigated the case, examined all the witnesses and on completion of investigation, he laid a charge sheet before the Special Court, VII Additional Judge, City Civil Court, Chenani for offence under section 7, r/w 12, 13(!)(d)(2) of PC Act r/w 109 IPC.

5. On appearance of the accused, copies were furnished and the learned Special Judge framed charges and on questioning, the appellants denied the charges and opted for trial.

6. In order to prove the case of prosecution, 10 witnesses were examined, 16 documents were marked and 8 Material Objects were produced. On the basis of the oral and documentary evidence, the learned Special Judge found that the first appellant demanded a bribe of Rs.2000/- from P.W.2 and has received the same and was caught red handed in the trap proceedings and the second appellant had abetted and thereby both the appellants were found guilty. The trial court has convicted and passed the sentence as stated above. Aggrieved by which, the first appellant has preferred in C.A. No.172 of 2009 and the 2nd appellant has preferred in C.A.No.173 of 2009. Since both the appeals arise out of a common judgment, they are disposed of by a common judgment.

7. The point to be considered in both these appeals is whether the conviction and sentence passed by the VII Additional Sessions Judge, City Civil Court, Chennai are sustainable?

8. Mr.N.R. Elango, the learned senior counsel appearing for the first appellant advanced his arguments on the following grounds:

i) the alleged demand on 11.12.2002 over the mobile phone was not proved.

ii) mere possession of the tainted money without demand is not a conclusive proof for an offence under the Act.

iii) there are discrepancies in the evidence of P.Ws.2 and 3 regarding the demand and receipt of money.

iv) the presence of P.W.3 at the time of handing over money is doubtful as P.W.3 has conceded that he was waiting outside the office of P.W.2.

v) the appellant has given a satisfactory explanation for the positive reading of his fingers in the phenoptheline test.

9. Mr.J.S. Arun Kumar, learned counsel appearing for the second appellant submitted that the second appellant is not an official driver of the first appellant. Even according to the prosecution, the second appellant has not demanded any bribe or received any bribe. Mere possession will not constitute an offence and he is not an accomplice.

10. On the contrary, Mr.Hassan Mohammed Jinnah, learned Additional Public Prosecutor, submitted P.W.2 and 3 would speak about the alleged demand and receiving of tainted money and the phenoptheline test which answered positive for both the appellants would show that the appellants have committed the offences and the trial court had rightly convicted the appellants.

11. Heard and perused the materials available on record.

12. P.W.2 who is the publisher and owner of a magazine "Evening Post" said to have been in trouble with one Joseph on the purchase of EPBX System worth Rs.46,000/-. P.W.2 would state that on 9.12.2002 he received a phone call from Teynampet Police station to come over to the station in connection with default of payment. When he contacted the first appellant who is known to him, the first appellant was said to have demanded Rs.2,000/- to sort out the issue. According to P.W.2, he lodged a complaint to P.W.13, Deputy Superintendent of Police, Vigilance, who set up the trap proceedings. P.W3 and P.W.4 are the official witnesses for the pre-trap and post trap proceedings. P.W.3 is also said to be present at the time of handing over the tainted money to the first appellant. No doubt, the fingers of the first appellant turned positive for the phenoptheline test. The second appellant is a private jeep driver of the first appellant. It is alleged that the first appellant passed on the cover containing the tainted money to the second appellant and he produced the same when P.W.13 intercepted them.

13. According to the first appellant, there was no demand and he went to the office of P.W.2 as he received phone calls stating that there was some trouble in the office. According to the defence, when he found there was nothing wrong in the office, he scolded P.W.2 and at that time, P.W.2 tried to hand over some money and the 1st appellant pushed the money with his right hand and left the office of P.W.2 and thereafter, P.W.2 had put the money in the cover and thrust the same into the hands of the driver.

14. However, the fact remains that the right hand of the both the appellants turned positive in the phenoptheline test.

15. In 2006 (1) SCC 401 (T. Subramanian vs State of Tamil Nadu), the Hon'ble Supreme Court has held as follows:

12. Mere receipt of Rs.200 by the appellant from PW1 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".

16. In (2009) 3 SCC 779 (C.M. Girish Babu vs CBI, Cochin, High Court of Kerala), the Apex Court has held

21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that the accused received the amount towards gratification.

22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.

17. In 2010 (4) SCC 450 (Banarsi Dass vs State of Haryana), the Apex court has held

20. It is settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in the regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence. Applying these tests to the facts of the present case. PW10 and PW11 were neither the eyewitnesses to the demand nor to the acceptance of money by the accused from Smt Sat Pal Kaur (PW2)".

18. In 2006 (2) LW (Cr)l 965 (Ramakrishnan vs State), this Court held that

"9. At the outset, it is to be stated that is well settled by a catena of decisions of the Hon'ble Supreme Court of India that mere possession of receipt of the money by an accused in the absence of proof of demand and acceptance of money as illegal gratification will not be sufficient to establish the guilt of the accused in a corruption case"

19. In CDJ 2010 MHC 3611 (V. Jayachandran vs State Deputy Superintendent of Police, Pudukottai, this court held as "22. When it is doubtful whether MO2 was actually seized from the appellant, the burden is heavily upon the prosecution to prove through independent witness that there was a demand by the appellant and the same was met out by the defacto complainant and the tainted money was received by him....

23. Section 20 of the Prevention of Corruption Act, 1988 reads as follows:

"20. Presumption where public servant accepts gratification other than legal remuneration:-(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause(b) of sub section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable things from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or the valuable things, as the case may be as a mother or reward such as motive or reward such as is mentioned in Section 7 or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

3) Notwithstanding anything contained in sub-sections (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn".

20. Therefore, it is well settled by a catena of decisions of the Hon'ble Supreme Court as well as this Court that mere possession of tainted money is not enough to prove the guilt in the absence of proof of demand and acceptance of money as illegal gratification. When the tainted money is not seized from the prime accused, the burden is heavily upon the prosecution to prove that there was a demand by the accused and the same was met out by the defacto-complainant and the tainted money was in fact received by the accused.

21. In CDJ 2010 MHC 5843 (C. Chellamuthu vs State, Inspector of Police, Vigilance and Anti Corruptiion) , this Court held as follows:

"At the outset, it is to be stated that it is well settled by a catena of decisions of the Hon'ble Supreme Court of India that mere proof of receipt of the money by an accused in the absence of proof of demand and acceptance of money as illegal gratification will not be sufficient to establish the guilt of the accused in a corruption case.

11. Therefore, the first and foremost ingredient to constitute the offence under the Prevention of Corruption Act is to prove the receipt of money as illegal gratification is the proof of demand made by the accused. Once the prosecution failed to prove the above said ingredient, in my considered view, the entire prosecution case falls into the ground".

22. Sec.20 of the Prevention of Corruption Act, 1988 reads as follows:

"20. Presumption where public servant accepts gratification other than legal remuneration:- (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable things from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable things, as the case may be, as a motive or reward such as is mentioned in Section 7 or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn".

23. In the present case, indisputably, the tainted money was produced by the 2nd appellant, who was the driver of the 1st appellant. In any event, the 2nd appellant has not made any demand and was also not in a position to make any demand. The charge against him is abetment under Sec.109 IPC. The defence taken by the 1st appellant is that PW.2 thrust the cover containing the tainted money to the 2nd appellant. In any event, there is no evidence to show either the 2nd appellant abetted or knowingly received the money on behalf of the 1st appellant.

24. It is also pertinent to note that the 2nd appellant is not an official driver of the 1st appellant. Therefore, the conviction against the 2nd appellant is liable to be set aside.

25. As far as the 1st appellant is concerned, the demand was made through mobile on 11.12.2002, when P.W.1 contacted the 1st appellant. According to P.W.2 on the same day evening, the 1st appellant called him over phone and P.W.2 told him that he will pay the amount on the next day. There is no corroborative evidence for such demand.

26. As already stated, P.W.3 would concede that he was waiting in the drawing hall when the 1st appellant and P.W.2 were in P.W2's office and he was not actually present when the money was handed over. The 1st appellant had rebutted the presumption by putting a suggestion to P.W.2 in the cross examination that he tried to hand over the tainted money and the appellant pushed with his right hand and that is how his right hand turned positive in the phenoptheline test. It is well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. Preponderance of probability is enough to discharge the accused.

27. Therefore, the above circumstances would show that the prosecution has not proved the demand and as well as the receipt of money by the 1st appellant and the conviction against the 1st appellant is also liable to be set aside.

28. In the result, all the appeals are allowed and the conviction and sentence passed by the learned VII Additional Sessions Judge, City Civil Court, Chennai in CC Nos.14 of 2004 dated 2.4.2009 are set aside.

29. In view of the order passed setting aside the order of the trial court, it goes without saying that the appellants/accused shall be set at liberty forthwith, if they are still in confinement. Likewise, if they are already at large, the bail bonds, if any, executed by them, shall stand cancelled.

sr To

1. The Deputy Superintendent of Police Vigilance and Anticorruption Det-CC-1, Adayar, Chennai-600 020

2. The Public Prosecutor, High Court, Chennai

3. VII Additional Sessions Judge, City Civil Court, Chennai