IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on: 14.06.2023 Pronounced on: 06.07.2023 Coram:

THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN Crl.A.No.268 of 2018 Thota T.Shivakumar, S/o.T.Rajagopal ... Accused/Appellant /versus/ State by:

Inspector of Police, SPE/CBI/ACB, Chennai.

(Crime No.RC.MA1.2014A008) ... Complainant/Respondent Prayer : Criminal Appeal has been filed under Section 374 (2) of Cr.P.C., pleased to pass an order to set aside the conviction order dated 20.04.2018 passed against the accused/appellant in C.C.No.11 of 2014 on the file of the Principal Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai and acquit the accused/appellant in the above case.

For Appellant : Mr.C.K.Chandrasekkar for Mr.Vevekananthan For Respondent : Mr.S.Udaya Kumar, Government Advocate (Crl.Side).

J U D G M E N T

The appellant/Thota T.Shivakumar a public servant, while serving as Senior Section Engineer, Permanent Way in Southern Railways was trapped for receiving illegal gratification of Rs.15,000/- on 07.03.2014. He was tried and found guilty by the Special Court for C.B.I cases, Chennai, for the charge under Section 7 of Prevention of Corruption Act and for the offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. He was sentenced to undergo 2 years R.I and to pay fine of Rs.15,000/- in default to undergo 3 months S.I. For each of the above two offences. However, the period of substantive sentence was ordered to run concurrently.

2. Aggrieved by the conviction and sentence, the present appeal is preferred.

3. The sum and substance of the prosecution case is that, the accused while working as Senior Section Engineer at Permanent Way in the O/o.Deputy Chief Engineer (Construction), Southern Railways, Park Town, Chennai, demanded a sum of Rs.15,000/- as illegal gratification on 06.03.2014 from one L.G.Ravi, a Railway Contractor, for recording the measurement of the work executed by him in the Measurement Book. The said L.G.Ravi not inclined to give illegal gratification, gave a complaint to the Inspector of Police, SPE:CBI:ACB, Chennai, on 07.03.2014. Case was registered in Crime No.RC/MA1/2014-A0008 and taken up for investigation. As a part of investigation, trap was laid. The defacto complainant L.G.Ravi was instructed to met the accused and give the bribe money smeared with phenolphthalein, to the accused if he demands. Thiru.A.Lakshmanasamy was instructed to accompany the defacto complainant and oversee the transaction. Accordingly, on 07.03.2014, at about 14.35 hours, the defacto complainant and the shadow witness A.Lakshmanasamy met the accused near My Lady Garden, Park Town, where the office of the accused located. The accused asked the shadow witness to wait outside the room and thereafter, by sign tossing his right hand index finger with thumb finger, asked for the money from the defacto complainant. Immediately, the defacto complainant took out marked currency of Rs.15,000/- and gave it to the accused. Soon after, the trap team caught the accused and recovered the marked currency of Rs.15,000/- which was kept in his shirt pocket. The hand wash solution and shirt wash solution collected during the trap proceedings were sent for chemical analysis and found presence of phenolphthalein. After obtaining sanction to prosecute, the Investigating Officer filed final report.

4. To prove the charges, the prosecution examined 11 witnesses (P.W.1 to P.W.11), marked 64 Exhibits (Ex.P.1 to Ex.P.64). On the side of the defence, 3 witnesses (D.W.1 to D.W.3) and 19 Exhibits were marked (Ex.D.1 to Ex.D.19). The trap money, remnant of the solutions and shirt of the accused were marked as M.O.1 to M.O.5.

5. The trial Court, after considering the evidence and submissions made by the Learned Counsels held the accused guilty of offence under Sections 7 and 13(2) r/w 13(1)(d) of P.C Act, 1988 and sentenced him as stated above.

6. The Learned Counsel appearing for the appellant submitted that the duty of the accu