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2011 Supreme(Mad) 4029
High Court of Judicature at Madras
T. MATHIVANAN
A.S. Kannan
Versus
State by: The Inspector of Police Vigilance and Anti Corruption Chennai City II Detachment Chennai
Crl.A.No.992 of 2004
Decided on : 22-09-2011
For the Appellant:P. Wilson, Senior Counsel for T.K.S. Gandhi, Advocate.
For the Respondent: A.N. Thambidurai, Additional Public Prosecutor.
Ratios
a. Presumption created under Sec.7 of the Prevention of Corruption Act, 1988 is rebuttable by the accused and the accused could discharge it by preponderance of probability.
b. Burden to prove the innocence would shift to the accused only after the demand of bribe by the accused is proved by the prosecution.
c. Official who commit inordinate delay in granting sanction for prosecution under Sec.19 of the Prevention of Corruption Act, 1988 would be liable for departmental action and also action for contempt of Court.
d. The order granting sanction to prosecute a public servant for an offence under the Prevention of Corruption Act, 1988 must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority.
e. A police officer, who registered a case for an offence punishable under the Prevention of Corruption Act, 1988, cannot take up that case for investigation.
f. In a prosecution for an offence under the Prevention of Corruption Act, 1988, mere recovery of the tainted currency from the possession of the accused would not be sufficient to prove the charge of receiving bribe by the accused.
g. To prove the allegations of demand and acceptance of bribe by an accused person, the evidence of the complainant party or trap witness cannot be safely acted upon in the absence of some independent corroborative evidence.
h. Evidence of the trap witnesses could not be treated as independent evidence and could not be accepted without independent corroboration.
Headnote:(A)Prevention of Corruption Act, 1988(49 of 1988)-Sec.7, 13(1)(d), 19, 20-Indian Evidence Act, 1872(1 of 1872)-Sec.3-Criminal trial-Corruption-Investigation-Inspector-Competency-Accomplice-Official witness-Independent witness-Corroboration-Appreciation-Appellant, a staff of the Electricity Board was prosecuted for demanding and accepting bribe from a consumer who had failed to pay the electricity charges in time-When the trial Court had convicted him for the offences charged, the appellant preferred appeal-While the appellant contended that in Chennai only the police officer of the rank of Deputy Superintendent of Police could investigate whereas, his case was investigated only by an Inspector of Police and the evidence of the witnesses were contradictory with each other, respondent resisted the same-Held, in the absence of any specific authorisation, investigation of the case by an officer of the rank of inspector of police was contrary to law-Mere recovery of an amount from the drawer of the accused would not create a presumption of demand of bribe by the accused-Evidence of the trap and recovery of money had to be corroborated by an independent witness-Officials drawn to witness the trap could not be treated as independent witnesses-Evidence of the complainant was contradictory and not believable-Appeal was allowed and the appellant was acquitted.
(B)Prevention of Corruption Act, 1988(49 of 1988)-Sec.7, 20-Indian Evidence Act, 1872(1 of 1872)-Sec.3-Criminal trial-Corruption-Presumption-Rebuttal-Preponderance of probability-Accused-Presumption created under Sec.7 of the Prevention of Corruption Act, 1988 is rebuttable by the accused and the accused could discharge it by preponderance of probability.
If it is proved that he has accepted or obtained or agreed to accept or attempted to obtain that gratification or valuable thing as the case may be or motive or reward such as mentioned in section 7 of the Act, it shall be presumed that he has accepted or received the gratification. But, this presumption is a rebuttable one and the person against whom the case of bribe is launched can defend himself to prove the contrary by way of preponderance of probability. It is settled proposition of law that the rigour of proof, which is rested on the prosecution, is not strictly attached on the accused person. On the other hand, if he is able to demonstrate the preponderance of probability to the satisfaction of this Court, it would be sufficient to presume his innocence. Para 4
(C)Prevention of Corruption Act, 1988(49 of 1988)-Sec.7, 20-Criminal trial-Corruption-Presumption-Demand-Burden to prove the innocence would shift to the accused only after the demand of bribe is proved by the prosecution.
It may quite be relevant to note here that Section 20 of the Act provides for raising of a presumption, only if a demand is proved. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution. Para 5
(D)Prevention of Corruption Act, 1988(49 of 1988)-Sec.7, 19-Criminal trial-Corruption-Sanction-Delay-Departmental action-Contempt-Official who commit inordinate delay in granting sanction for prosecution under Sec.19 of the Prevention of Corruption Act, 1988 would be liable for departmental action and also action for contempt of Court.
But, he has not offered any satisfactory explanation for the abnormal delay i.e. nearly 1 = years for according sanction to launch prosecution against the appellant. It is significant to note here that along with the requisition from the Director of Vigilance and Anti-Corruption dated 28.07.2000 the materials viz. first information report, statement of witnesses, mahazar etc., were tagged for the evaluation and examination of P.W.1. However, he took such an unexplained time to accord sanction, which amounts to lack of devotion to duty on his part in absence of just and proper explanation for which he is liable not only for the departmental proceedings, but also for the contempt of Court. Para 43
(E)Prevention of Corruption Act, 1988(49 of 1988)-Sec.19-Criminal trial-Corruption-Sanction-Application of mind-The order granting sanction to prosecute a public servant for an offence under the Prevention of Corruption Act, 1988 must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority.
Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. Para 45
(F)Prevention of Corruption Act, 1988(49 of 1988)-Sec.7, 12, 13-Indian Evidence Act, 1872(1 of 1872)-Sec.3-Criminal trial-Corruption-Investigation-Independency-A police officer, who registered a case for an offence punishable under the Prevention of Corruption Act, 1988, cannot take up that case for investigation.
It is settled proposition of law that a police officer, who registered a case, cannot take up the case for investigation. He cannot play a dual role. Even if it is assumed that on the direction of the Deputy Superintendent of Police Mr.Sethuraman P.W.9 has taken up the case for investigation, then how much value could be attached to the investigation conducted by P.W.10 Mr.Ponnusamy, Inspector of Police. Para 71
(G)Prevention of Corruption Act, 1988(49 of 1988)-Sec.7, 13(1)(d), 20-Indian Evidence Act, 1872(1 of 1872)-Sec.3-Criminal trial-Corruption-Tainted money-Recovery-Presumption-In a prosecution for an offence under the Prevention of Corruption Act, 1988, mere recovery of the tainted currency from the possession of the accused would not be sufficient to prove the charge of receiving bribe by the accused.
In a bribery case, the following three cardinal principles have to be established by the prosecution:
i. Demand,
ii. Acceptance of illegal gratification, and
iii. Recovery of the bribe amount,
In the present case, these three major ingredients are absent and hence it could not be considered or heard to say that the prosecution has proved its case beyond all reasonable doubts. Even if it is presumed that the amount was recovered from the left side table drawer of the appellant, the mere recovery of it cannot prove the case of the prosecution against the appellant. Para 103
(H)Prevention of Corruption Act, 1988(49 of 1988)-Sec.7, 13(1)(d), 19-Indian Evidence Act, 1872(1 of 1872)-Sec.3-Criminal trial-Corruption-Official witness-Independent witness-Corroboration-Appreciation- To prove the allegations of demand and acceptance of bribe by an accused person, the evidence of the complainant party or trap witness cannot be safely acted upon in the absence of some independent corroborative evidence-Evidence of the trap witnesses could not be treated as independent evidence and could not be accepted without independent corroboration.
It is settled principle of law that to prove the allegations of demand and acceptance of bribe by an accused person, the evidence of the complainant or trap witness cannot be safely acted upon in the absence of some independent corroborative evidence. In such a situation, bribe giver is normally treated as no better than an accomplice and so his evidence needs corroboration from an independent source. The same value is to be attached to the evidence of the shadow witness especially when he is not proved to be an independent witness. Independent corroboration to the evidence of such witness is generally required by the Court, if not as a rule of law, then at least as a rule of caution and prudence. Para 104
1. This memorandum of criminal appeal is directed against the Judgment dated 20.07.2004 and made in C.C.No.1 of 2002, on the file of the learned Special Judge, under the Prevention of Corruption Act (I Additional Sessions Judge), Chennai, convicting the appellant under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and sentencing to suffer two years of rigorous imprisonment and to pay a fine of Rs.3,000/-, in default to suffer a further period of three months of rigorous imprisonment for each offence.
2.The highest forum of the land, in the Judgment made in State of Madhya Pradesh vs. Ram Singh, 2000 Cr.L.J. 1401, has observed that:
“The Prevention of Corruption Act was intended to make an effective provision for the prevention of bribe and corruption, which is rampant amongst the public servants. It is a social legislation defined to curb illegal activities of the public servants and is designed to be liberally construed so as to advance its object.”
3.As contemplated under Section 20(1) of the Prevention of Corruption Act, 1988 (Hereinafter it may be referred to as the 'Act'), wherein, 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 thing 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 thing, as the case may be, 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.
4.Hence, it is thus made clear that it is imperative on the part of the prosecuting agency, who launches a criminal proceedings against a public servant with an allegation of demand and acceptance of gratification other than the legal remuneration, to prove those allegations beyond the shade of doubt. If it is proved that he has accepted or obtained or agreed to accept or attempted to obtain that gratification or valuable thing as the case may be or motive or reward such as mentioned in section 7 of the Act, it shall be presumed that he has accepted or received the gratification. But, this presumption is a rebuttable one and the person against whom the case of bribe is launched can defend himself to prove the contrary by way of preponderance of probability. It is settled proposition of law that the rigour of proof, which is rested on the prosecution, is not strictly attached on the accused person. On the other hand, if he is able to demonstrate the preponderance of probability to the satisfaction of this Court, it would be sufficient to presume his innocence.
5.It may quite be relevant to note here that Section 20 of the Act provides for raising of a presumption, only if a demand is proved. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution. This dictum is engraved by the Apex Court in V.VenkataSubbarao vs. State, 2007 Cr.L.J.754 (S.C.).
6.Under Section 17 of the Act, certain police officers are authorised to investigate into the cases under the Act. Section 17 of the Act enacts as follows:
17. Persons authorised to investigate.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 .), no police officer below the rank,-
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub- section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974 .), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superi
