1. Appeal against conviction under the Prevention of Corruption Act following a trap operation where the appellant was alleged to have demanded and accepted illegal gratification. (Para 1 , 2 )
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2026 Supreme(Online)(Mad) 106293
IN THE HIGH COURT OF JUDICATURE OF MADRAS
M. Nirmal Kumar, J
K. Viswanathan – Appellant
Versus
State of Tamil Nadu – Respondent
CRL.A.No.705 of 2023
Important Points
Conviction under the Prevention of Corruption Act requires proof of demand and voluntary acceptance; mere recovery of tainted money is insufficient. The statutory presumption under Section 20 is rebuttable by a preponderance of probabilities and does not apply to Section 13(1)(d).
Subject
Criminal Law - Anti-Corruption
Act Referred
Prevention of Corruption Act, 1988: S.7, S.13(1)(d), S.19(3), S.20
Code of Criminal Procedure: S.374(2), S.313, S.465
Evidence Act: S.114
Code of Criminal Procedure: S.374(2), S.313, S.465
Evidence Act: S.114
Headnote
(A) Prevention of Corruption Act - Demand of Gratification - Sine qua non - Mere possession or recovery of tainted currency, without proof of demand and voluntary acceptance, does not constitute the offence; both must be proved by direct or circumstantial evidence before the presumption under Section 20 can be raised. (Para 11)
(B) Sanction for Prosecution - Application of Mind - A sanction order described as a "model sanction order" and discrepancies between the date of issuance and the date of receipt by the investigating officer cast doubt on whether the sanctioning authority actually applied their mind to the material. (Para 12)
(C) Statutory Presumption - Section 20 of the Prevention of Corruption Act - The presumption is rebuttable, and the accused need only displace it by a preponderance of probabilities, which may be achieved through cross-examination, prosecution material, or defense evidence. (Para 11, 19)
(D) Section 13(1)(d) - Scope of Presumption - The statutory presumption under Section 20 applies to offences under Section 7 and Section 13(1)(a) and (b), but does not extend to Section 13(1)(d). (Para 11, 20)
Issues: Whether the prosecution proved the demand of illegal gratification beyond reasonable doubt and whether the sanction for prosecution was validly granted.
(B) Sanction for Prosecution - Application of Mind - A sanction order described as a "model sanction order" and discrepancies between the date of issuance and the date of receipt by the investigating officer cast doubt on whether the sanctioning authority actually applied their mind to the material. (Para 12)
(C) Statutory Presumption - Section 20 of the Prevention of Corruption Act - The presumption is rebuttable, and the accused need only displace it by a preponderance of probabilities, which may be achieved through cross-examination, prosecution material, or defense evidence. (Para 11, 19)
(D) Section 13(1)(d) - Scope of Presumption - The statutory presumption under Section 20 applies to offences under Section 7 and Section 13(1)(a) and (b), but does not extend to Section 13(1)(d). (Para 11, 20)
Issues: Whether the prosecution proved the demand of illegal gratification beyond reasonable doubt and whether the sanction for prosecution was validly granted.
Legal Category Hierarchy
Advocates:
For the Appellants/Petitioners: T. Gowthaman Senior Counsel For S. Karpagapriya
For the Respondents:S. Udayakumar Government Advocate (crl.side)
For the Appellants/Petitioners: T. Gowthaman Senior Counsel For S. Karpagapriya
For the Respondents:S. Udayakumar Government Advocate (crl.side)
Table of Contents
2. The appellant contended that the sanction for prosecution was invalid, prosecution evidence was inconsistent and interested, and the demand was not proven, whereas the state defended the conviction. (Para 5 , 6 , 7 )
3. The court found that the prosecution failed to prove the demand through consistent evidence, the sanction process was suspicious, and material contradictions undermined the credibility of the trap. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 )
4. Proof of demand and voluntary acceptance of illegal gratification is a sine qua non for conviction under the Act; mere recovery of money does not suffice to raise presumption. (Para 11 , 19 , 20 )
5. The appeal is allowed, and the conviction and sentence passed by the trial court are set aside, resulting in the acquittal of the appellant. (Para 22 )
6. Is the recovery of tainted currency sufficient to prove an offence under the Prevention of Corruption Act?
No. Mere possession or recovery of tainted currency without proof of a prior demand and voluntary acceptance does not constitute an offence. Both demand and acceptance must be established beyond reasonable doubt for the presumption under Section 20 to arise. (Para 11 , 19 , 20 )
7. Does the requirement for a valid sanction necessitate proof of application of mind by the sanctioning authority?
Yes. The prosecution must establish that the sanctioning authority granted sanction after examining all relevant materials and applying its mind. An order appearing as a model or containing procedural discrepancies regarding dates and transmission of the file creates doubt regarding the validity of the sanction. (Para 12 , 13 )
8. Can a court draw an adverse inference when the prosecution fails to examine a material official witness?
Yes. When a key witness, such as an official trap witness who handled the tainted notes or witnessed the recovery, is not examined by the prosecution without explanation, the court may invoke Section 114, illustration (g) of the Evidence Act to draw an adverse inference. (Para 15 )
JUDGMENT
The appellant, the sole accused in C.C.No.37 of 2015, was convicted by Judgment dated 12.06.2023 of the learned Chief Judicial Magistrate / Special Judge, Erode. He was sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.5,000/-, in default simple imprisonment for one month, for the offence under Section 7 of the Prevention of Corruption Act, 1988 ("the Act"), and to Rigorous Imprisonment for three years and a fine of Rs.5,000/-, in default simple imprisonment for one month, for the offence under Section 13(2) read with Section 13(1)(d) of the Act. The sentences of imprisonment were directed to run concurrently. Aggrieved by the conviction and sentence, the accused has preferred this appeal.
2. The case of the prosecution, in brief, is as follows:
(a) The de facto complainant, Mr.G.Ragunathan (PW.1), a welder residing at Thamaraipalayam, Erode District, applied to the Assistant Engineer, TNEB (O&M), Thamaraipalayam, for a new service connection to his house. The appellant, K.Viswanathan, was then a Foreman (Grade-I) in the same section and is admittedly a public servant.
(b) It is alleged that on 18.01.2011 the appellant visited PW.1's house, said that a new electric post had to be erected for which Rs.1,550/- was payable to the Board, and demanded Rs.1,000/-, as illegal gratification for arranging the post, fixing the meter and giving the connection. PW.1 paid Rs.1,550/- at the office on 07.02.2011. The post was erected by Board staff, with PW.1 arranging a tractor, on 11.02.2011. The appellant said to have reiterated the demand on 08.02.2011 and told PW.1 that the meter would not be fixed until the money paid. On 14.02.2011 he said to have visited PW.1's house at about 08.30 hours, told PW.1's wife (PW.8) the same, and repeated the demand to PW.1 at about 17.00 hours.
(c) PW.1, unwilling to pay, gave a complaint (Ex.P.3) on15.02.2011 at about 08.00 hours to the Inspector of Police, Vigilance and Anti-Corruption, Erode. (PW.10), who registered Cr.No.3/AC/2011/ER (Ex.P.19). Two Government officials, Mr.Selvaraj (PW.2) and one Rajaram, were deputed as official witnesses. Six currency notes totalling Rs.1,000/- were smeared with phenolphthalein powder, their numbers noted in the entrustment mahazar (Ex.P.5), and handed to PW.1 with instructions to pay only on demand and to give a signal by combing his hair.
(d) In the afternoon the trap party went to the Thamaraipalayam TNEB office, but the appellant was absent. After several telephone calls, the appellant said to have asked PW.1 to come to the Ganapathipalayam bus stop. There, at about 06.00 p.m., the appellant demanded the money, taken it with his right hand, counted it with both hands and kept it in his left shirt pocket. PW.1 gave the signal at about 06.05 p.m. The appellant was taken to the TNEB office at Thamaraipalayam, where the sodium carbonate hand- wash of both hands turned pink; the notes were produced and their numbers tallied. Hand-wash solutions and the shirt were seized as M.O.2 to M.O.5; the notes are M.O.1.
(e) After investigation, and after sanction (Ex.P.23) obtained from the Superintendent Engineer, TNEB, Mr.N.Vadivelu (since deceased), final report filed on 18.05.2015 for offences under Sections 7 and 13(2) r/w 13(1)(d) of the Act.
3. The prosecution examined PW.1 to PW.12, marked Ex.P.1 to Ex.P.23 and M.O.1 to M.O.5. The appellant, questioned under Section 313 Cr.P.C., denied the incriminating circumstances as false. He examined one Jeganathan, a priest of the Vinayagar temple at Ganapathipalayam Four Roads, as D.W.1. No document was marked for the defence.
4. The trial Court held that
(i) the appellant is a public servant and Ex.P.23 is a valid sanction proved through PW.11;
(ii) the demand was proved by PW.1, corroborated by PW.8 and PW.2;
(iii) acceptance and recovery were proved by PW.1, PW.2 and PW.10 and the positive phenolphthalein test;
(iv) the presumption under Section 20 of the Act arose and was not
