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2020 Supreme(Mad) 373
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. NIRMAL KUMAR, J.
A. Jayabal - Appellant
Versus
State, The Inspector of Police, SBE/CBI/ACB, Chennai - Respondent
CRL.A. No. 769 of 2011 & Crl.M.P. No. 1 of 2011
Decided On : 08-06-2020
For the Appellant:S. Ashok Kumar, Advocate. For the Respondent: K. Srinivasan, Special Public Prosecutor for CBI Cases.
Headnote:
Criminal Procedure Code, 1973 - Section 374 - Corruption Act, 1988 - Section 7 - Transporting silver oak wood without any permission from forest department - Payment of compounding fee - Conclusion of trial Court acquitted accused and convicted appellant for offence Section of Prevention of Corruption Act and sentenced to undergo one year rigorous imprisonment and to pay fine in default to undergo three months rigorous imprisonment and also convicted him Section Prevention of Corruption Act and sentenced to undergo one year rigorous imprisonment and to pay fine in default to undergo three months rigorous imprisonment - All sentenced were ordered to run concurrently against which present appeal - Prosecution in nutshell is as follows - Who was running silver oak wood business at sent consignment of silver oak wood to Dyeing Printing Mills Limited by Tempo bearing registration driven - Vehicle was detained at Commercial Tax Check Post for not having bill for goods and was with delivery note alone - Held, Mere recovery of tainted money is not sufficient to convict accused when the substantive evidence in case is not reliable unless there is evidence to prove payment of bribe or to show that money was taken voluntarily as bribe - Mere receipt of amount by accused is not sufficient to fasten guilt in absence of any evidence with regard to demand and acceptance of amount as illegal gratification but the burden rests on accused to displace statutory presumption raised Section of Act by bringing on record evidence either direct or circumstantial to establish with reasonable probability that money was accepted by him other than as motive or reward as referred to in Section of Act - While invoking provisions of Section of Act court is required to consider explanation offered by accused if any only on touchstone of preponderance of probability and not on touchstone of proof beyond all reasonable doubt - However before accused is called upon to explain as to how amount in question was found in his possession foundational facts must be established by prosecution - Complainant is an interested and partisan witness concerned with success of trap and his evidence must be tested in the same way as that of any other interested witness and in proper case court may look for independent corroboration before convicting accused person - Appeal allowed
JUDGMENT
(Prayer: Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, to set aside the Judgment in C.C.No.7 of 2009 dated 11.11.2011 passed by the II Additional District & Sessions Judge (CBI Cases), Coimbatore.)
1. This Criminal Appeal arises out of the conviction and sentence rendered by the learned II Additional District Judge (CBI Cases), Coimbatore in C.C.No.7 of 2009 dated 11.11.2011.
2. The appellant was charged for offence under Section 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. On conclusion of trial, the trial Court convicted him under Section 7 of Prevention of Corruption Act and sentenced him to undergo one year rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default to undergo three months rigorous imprisonment and for offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, the appellant was sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default three months rigorous imprisonment. The above sentences were ordered to run concurrently.
3. The brief facts of the case are as follows:-
(i) PW3/the defacto complainant Gerald Pubalan, partner of M/s.LML & Sons, was engaged in the business of conversion of doubling yarns. His father, mother and his brother are other partners of the firm. They were doing business with M/s. Chandra Textiles. M/s. Chandra Textiles deducted income tax at source every month before making payments to PW3’s firm, in turn, PW3’s firm was to file the income tax returns and then claim refund of TDS. PW3’s firm filed income tax returns for the assessment year 2005-2006 and 2006-2007 on 12.12.2006 and for 2007-2008 on 26.07.2007. Since PW3 did not receive the TDS refund amount for these assessment years, he approached Income Tax Office on 09.04.2009 and enquired PW9/Income Tax Officer G.Venkateswaran about TDS dues.
(ii) PW9 called A.Jayabal/appellant and asked him the files of PW3’s firm. After going through the file, PW9 informed PW3 that the IT returns filed by him are not available and asked PW3 to submit copies of the same. On the same day, PW3 submitted the copies of IT returns to PW9. After receiving the same, PW9 asked PW3 to meet him after ten days. As instructed, PW3 met PW9 on 21.04.2009 and PW9 asked PW3 to meet the appellant, who was a Senior Tax Assistant in Ward-3(II), I.T Office, Coimbatore. When PW3 met the appellant, the appellant informed that PW9 had instructed him to collect Rs.10,000/- for despatching the TDS cheque. The appellant handed over a piece of paper/Ex.P7 to PW3 inscribing the details of TDS amount and also asked PW3 to pay the amount of Rs.10,000/- in the office on the next day i.e., on 22.04.2009 and assured him that TDS cheque for 2007-2008 will be despatched along with other cheques for the assessment year 2005-2006 and 2006-2007, if the above amount is paid by PW3.
(iii) PW3 not willing to give bribe amount contacted the Superintendent of Police, CBI, Chennai on 21.04.2009 at about 05.45 p.m., complained about PW9/Income Tax Officer and the appellant, Dealing Assistant, IT Office, Coimbatore demanding a bribe of Rs.10,000/- for issuing the TDS refund cheques. The Superintendent of Police asked PW3 to meet PW8 (TLO)/R.Purushotham, CBI, Inspector at Hotel Cheran Palace, Coimbatore and to give a complaint to him. In the meantime, PW3 came to know from his father that the appellant had called his father on 21.04.2009 at about 06.00 p.m through his mobile and asked him to bring the money on 22.04.2009 without fail. On 22.04.2009 at about 09.45 a.m., on receiving phone call from PW8, PW3 met him at Room No.37, Hotel Cheran Palace, Coimbatore along with his father Lawrance and lodged a complaint [Ex.P6]. On the basis of the complaint, PW8 made a discrete verification and faxed the complaint/Ex.P6, piece of paper [Ex.P7] written by appellant along with his discrete report [Ex.P23] to the Superintendent of Police, CBI, Chennai. On receiving the sam
