Guruviah vs State Rep. By Inspector Of Police

CRIMINAL APPEAL NO(s).1208 OF 2019 (arising out of S.L.P.(Crl.)No.1658 of 2019)

GURUVIAH ...APPELLANT(S) VERSUS THE STATE REPRESENTED BY THE INSPECTOR OF POLICE ...RESPONDENT(S)

WITH

CRIMINAL APPEAL NO(s).1209 OF 2019 (arising out of S.L.P.(Crl.)No.3985 of 2019)

VELUSAMY ...APPELLANT(S) VERSUS THE STATE REPRESENTED BY THE INSPECTOR OF POLICE ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The appellants, who are village assistants, challenge their

conviction under Sections 13(1)(d), 13(2) and 12 of the Prevention

of Corruption Act, 1988 (hereinafter called as “the Act”) with fine Signature Not Verified Digitally signed by MANISH SETHI Date: 2019.08.20

and a default stipulation, sentencing them to one year of rigorous 17:03:25 IST Reason:

imprisonment. The appellants have been acquitted of the charge 1 under Section 7 of the Act and Section 109 of the Indian Penal

Code. The village administrative officer, accused no.1, was

convicted under Sections 7, 13(1)(d), 13(2) and 12 of the Act. He

has since been deceased during the pendency of his separate

appeal.

2. The appellants were village assistants in the office of the

village administrative officer, arrayed as accused 2 and 3. On

17.12.2003, P.W. 2 lodged a written complaint before the

Additional Superintendent of Police (Vigilance and Anti­

Corruption) that the village administrative officer had demanded

a sum of Rs.600/­ for signing the necessary papers to facilitate

transfer of electric connection in the name of the complainant.

The illegal gratification is stated to have been handed over to one

of the appellants on the instruction of the village administrative

officer, and who after counting it handed it over to the other

appellant. They were apprehended by the trap officials

immediately thereafter and the money recovered.

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3. Learned senior counsel Shri S. Nagamuthu, appearing for

the appellants, submitted that according to P.W.2 the demand

had been exclusively made by the village administrative officer

alone. The latter alone was competent to sign the necessary

papers to facilitate transfer of the electric connection. The

appellants were menial assistants in his office. There was no

occasion for them to demand any illegal gratification as they were

incompetent to grant any favour to P.W.2. The appellants had

never made any demand for illegal gratification from P.W.2. They

had only received the money from P.W.2 on the instructions of

the village administrative officer in the bonafide belief that it was

payment towards demand of arrears of land tax, for which a

receipt had already been issued earlier without actual payment.

In the absence of any proof for demand and acceptance by the

appellants, they cannot be convicted on assumptions and

presumptions. There is no proof of any conspiracy. Mere recovery

from the appellants was not sufficient for conviction. It is

unlikely that a demand of Rs.600/­ would be made to facilitate a

subsidy of Rs.625/­. Reliance in support of the submissions was

placed on Virendranath vs. State of Maharashtra, 1996 (11)

SCC 688.

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4. Shri M. Yogesh Kannan, learned counsel for the State,

submitted that evidently the appellants were in league with the

village administrative officer. Mere absence of direct evidence for

demand and acceptance or conspiracy was irrelevant in view of

the circumstantial evidence available and which unhesitatingly

points towards the appellants as being part of design for

obtaining illegal gratification. The demand undoubtedly was

made by the village administrative officer alone. The money was

handed over to accused no.2 on his instructions. After counting

the amount, accused no.2 handed over the money to appellant

no.3 who put it in his shirt pocket. The application form was then

filled up by accused no.3 after which the village administrative

officer signed and put seal. The transfer of electric connection

would have facilitated P.W.2 to obtain a subsidy of Rs.625/­ every

six months. The defence of the appellants that the money was

received bonafide in the belief that it was towards arrears of land

tax for Fasli years 1412 and 1413 is falsified by the fact that

taxation for the years in question had already been cancelled by

the State Government. Relying upon T. Shankar Prasad vs.

4 State of A.P., (2004) 3 SCC 753, it was submitted that the

conviction and sentence of the appellants calls for no

interference.

5. We have considered the submissions and perused the

materials on record. P.W.2 was desirous for transfer of the

electric connection on the land in question in his own name to

facilitate a subsidy of Rs.625/­ every six months. The village

administrative officer was required to sign the necessary

documents for the purpose. P.W.2 lodged a written complaint on

17.12.2003 against the village administrative officer alone for

having demanded a sum of Rs.600/­ as illegal gratification for the

purpose. P.W.2 lodged a written report regarding the same.

Necessary mazhar was prepared. The appellants were village

assistants in the office of the village administrative officer. The

village administrative officer came to the office along with accused

no.3 while accused no.2 waited at the office for both of them. The

money was handed over to accused no.2 on the instructions of

the village administrative officer. The significance of accused no.2

counting the money before handing it over to accused no.3 who

5 put it in his shirt pocket, lay in the confirmation that the amount

was in consonance with the demand, of which naturally the

appellants were therefore aware of. It was only after the money as

demanded was paid that accused no.3 filled up the form for

transfer of the electric connection in the name of P.W.2 and

placed it before the village administrative officer who then signed

and put his seal on the same. At this moment, they were

apprehended. The money was handed over to the trap officials by

the village administrative officer after taking it back from accused

no.3. Their hands were dipped in the sodium carbonate solution,

including the shirt of the third accused, leading to change of

colour of the solution confirming that they were the same notes

which were given to P.W.2 by the trap officials.

6. P.W.1 proved the sanction for the prosecution. The mere

absence of any specific statement by P.W.2 and the trap witness

P.W.4 of any demand and acceptance by the appellants,

attributing the same only to the village administrative officer can

be of no avail to the appellants. P.W.10, Inspector Crime Branch

proved the trap proceedings and recovery. The defence of the

6 appellants that they had received the money in the bonafide belief

that it was towards arrears of land tax is belied by the fact that

land tax for the period in question had already been cancelled by

the State Government. The taking of a false defence is a further

aggravating circumstance against the appellants. The second

contention that it is improbable that a demand of Rs.600/­ would

have been made for a subsidy benefit of Rs.625/­ only, ignores

the fact that it entitled P.W.2 for a subsidy of Rs.625/­ every six

months. Evidently the appellants were in league with the village

administrative officer.

7. The contention that there was no demand or acceptance by

the appellants or that it was in a bonafide belief merits no

consideration. The prosecution was therefore able to establish a

prima facie case against the appellants. Section 20 of the Act

provides that if an accused public servant has accepted or

obtained for himself or for any other person any undue advantage

from any person, there shall be a presumption unless the

contrary is proved that he accepted or obtained that undue

advantage as a motive of reward for performance of a public duty

7 improperly or dishonestly either by himself or by another public

servant. The acquittal of the appellants under Section 7 of the

Act, in our opinion in the facts of the present case, is

inconsequential and cannot negate the presumption drawn

against them. The fact that P.W.2 in his chief may not have

named accused no.2 is considered inconsequential.

8. In Virendranath (supra), the venue for payment of the

illegal gratification was at a restaurant. The illegal gratification on

directions of the prime accused was handed over to the owner of

the restaurant. The acquittal of the restaurant owner by this

Court was based on an entirely different reason which has no

application to the facts of the present case. We consider it

appropriate to set out the same below:

“5. Insofar as A­2 is concerned, we find considerable merit in the contention raised on his behalf that he could have received the money innocently from the complainant at the asking of A­1, without realising that it was bribe money. The argument prevails because the prosecution has nowhere led any other evidence of conduct or consistency of a behaviour from which it could be spelt out that A­2 was a habitual go­between in facilitating acceptance of bribe by A­1. This single instance which has been brought forth does not reveal of any regularity of conduct of 8 this nature. There thus exists an area of doubt, the benefit of which shall go to A­2. Accordingly, the appeal of A­2 is allowed and he is acquitted of the charges.”

9. In T. Shankar Prasad (supra), the prime accused directed

the money to be handed over to the co­accused when both of

them were caught on the spot and the money recovered from the

co­accused. The co­accused took the plea that there was no proof

of demand and acceptance against him. A similar defence was

taken that he had accepted the same in the bonafide belief

towards advance tax. Referring to Section 20 of the Act, noticing

that there was no material towards any advance tax liability, it

was observed:

“24. ….An overall consideration of the materials sufficiently substantiates, in the case on hand, the prevalence of a system and methodology cleverly adopted by the accused that the demand will be specified when both the accused were present and thereafter as and when A­1 puts his signature the party has to meet A­2 at his seat for fixing the seal and making entry in the register to make the process complete only after collecting the amount already specified by A­1 in A­2’s presence. The involvement of both of them in a well­planned and cleverly managed device to systematically collect money stood sufficiently established on the evidence let in by the prosecution. Further, A­2 did

9 not offer his explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by this Court in A. Abdul Kaffar v. State of Kerala. It was noted that such a stand was not taken at the first­available opportunity and the defence was not genuine. In State of U.P. v. Dr G.K. Ghosh it was observed that in case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the conviction.”

10. We find no merit in the appeals, which are dismissed. The

appellants are directed to surrender forthwith for serving out

their remaining sentence.

…………...................J. [ASHOK BHUSHAN]

…………...................J. [NAVIN SINHA] NEW DELHI AUGUST 20, 2019.

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