V.Kannan vs State Rep.By Inspector Of Police

2. This appeal is directed against the judgment of the High

Court of Madras dated 4.7.2008 delivered in Criminal Appeal

No.664 of 2002.

3. The brief facts which are necessary to dispose of this

appeal are recapitulated as under.

4. The complainant, A. Alexander, PW1 was the proprietor

of M/s. OLOHV Engineering Services and the company was

doing contract work for the Railways. The company had 2

completed the contract work for Rs.1 crore from 1993 to 1997.

According to the prevalent rules, the bills could be cleared only

after the signature of the `Site Engineer' in the measurement

book. The contract work was completed in the year 1997 and

there was a balance of Rs.9 lacs due to the complainant PW1.

5. The appellant was the Site Engineer during the relevant

period and he had to verify the measurements and make entry

in the measurement book. The appellant informed that the

complainant PW1 had to return the unused materials to the

Railway department. The appellant demanded a bribe amount

of Rs.5000/- from the complainant PW1 at 9.30 am on

1.4.1998 to clear the final bill. The appellant also informed

that the bribe amount be paid during the lunch hour on that

date. The complainant PW1 was not willing to give the bribe

amount and consequently at about 10.30 a.m. on 1.4.1998 he

filed a report to the Deputy Superintendent of Police, CBI,

Chennai. The report was handed over to Prem Anand,

Inspector of Police by the Deputy Superintendent of Police and

at about 11.30 a.m. the above Inspector introduced the

independent witnesses Balachander and Prakash. The

complainant PW1 handed over the currency notes of 3

Rs.5000/- to the Inspector and the Inspector demonstrated

the Phenolphthalein test in the presence of the independent

witnesses. Subsequently, the Inspector prepared the

entrustment mahazar and the tainted currency notes were

placed in the shirt pocket of the complainant PW1 and the

Inspector informed that the above amount should be given to

the appellant on demand. The complainant PW1 was told that

after giving the bribe amount on demand he should give a

signal by wiping his face with handkerchief.

6. The above witnesses and the trap team were sent to the

office of the appellant at about 1.00 pm. The complainant

PW1and Balachander PW2 also went to the room of the

appellant and he (the appellant) took them to the room of the

Deputy General Manager. The appellant demanded the bribe

amount and the complainant handed over the bribe amount to

the appellant. The appellant started counting the currency

notes and Balachander PW2 went out and gave the pre-

arranged signal to the trap team. Immediately thereafter, the

Inspector entered into the room and introduced himself. 4

7. The Sodium Carbonate test was conducted on both the

hands of the appellant and there was a colour change in the

solution. The above solutions were preserved in separate

bottles and sealed. The appellant handed over the bribe

amount to the complainant PW1 and the serial numbers were

verified with the entrustment mahazar and they tallied.

8. The prosecution has examined seven witnesses.

Balachander PW2 is an independent witness and his

testimony is fully corroborated by the evidence of the

complainant PW1. Prem Anand, Inspector, CBI, PW3 arranged

the trap against the appellant in presence of the independent

witnesses. Smt. Kasturi Bai PW6 was working as a Scientific

Assistant Grade-I at the Forensic Science Department,

Chennai. She stated in her report that she had received two

solution bottles. On examination, the liquid contained

Phenolphthalein and Sodium Carbonate.

9. The appellant in his statement under section 313 of the

Code of Criminal Procedure (for short, the Cr.P.C.) stated that

as a Site Engineer, his duties were to supervise the erection of

girders at the work site of MRTS Project at Mylapore, to 5

monitor the safety parameters of both men and materials at

the site, to inspect whether the contract works are being

carried out according to the specifications and also

management of stores under direct supervision of the Project

Manager (Deputy General Manager).

10. The appellant in his defence stated that he had

purchased a second hand two-wheeler TVS Champ No.TN-21-

6743 in 1997 from A. Alexander PW1 for a sum of Rs.7000/-.

The appellant had already paid a sum of Rs.5000/- initially

and the balance amount of Rs.2000/- was to be paid after he

was satisfied with the vehicle. Since the vehicle had

mechanical defects, therefore, the appellant had asked

Alexander PW1 to take back the vehicle and return the money

(Rs.5000/-). The appellant further stated that at 1.00 p.m. on

1.4.1998, when he was working at the site at Mylapore, at that

time, Alexander PW1 came to return the amount given by him

towards the purchase two wheeler scooter and Alexander PW1

told him that his assistant Jayakanthan will handover the

money to him. Thereafter, he along with the complainant went

into the room of the Deputy General Manager Vaidyanathan to 6

discuss about the bills and at that time Vaidyanathan had

gone to the General Manager's room to attend a STD call. He

handed over the money by Jayakanthan. The appellant stated

that at that time he immediately asked his kalasi Govindan

and gave him the table key and asked him to take the vehicle

key from the table drawer and handover the vehicle to

Jayakanthan. At that time Vaidyanathan came back after

attending the telephone call and all of them went back to his

room and resumed the discussion. The appellant further

stated that when Vaidyanathan asked him what that money

was, he told him that it was given to him by Alexander PW1

through Jayakanthan as he was returning the two wheeler

TVS Champ purchased from Alexander PW1 and that he had

told Govindan to handover the vehicle to Jayakanthan.

11. The appellant also stated that when the CBI people came

and told him to raise his hands, he told Prem Anand PW3 that

the money in his hand was for the vehicle transaction money

and not the bribe money. The appellant further stated that he

did not receive any bribe amount. He stated that it was not

within his power to prepare the bills for the complainant PW1

as the matter was being dealt with at the Deputy General 7

Manager level. The appellant also submitted that the

complainant PW1 had deliberately filed this false complaint

against him to forestall any action by the Indian Railway

Construction Company (IRCON) as more than Rs.16 lakhs

could be deducted from his bills.

12. The Trial Court, after a detailed discussion, rejected the

defence version of the appellant. The Trial Court held the

appellant guilty of the offences under section 7 and 13(1)(d)

read with section 13(2) of the Prevention of Corruption Act,

1998 (for short, the Act) and sentenced the appellant to

undergo one year rigorous imprisonment for the charge under

section 7 of the Act and fine of Rs.1000/- and in default to

undergo further six months rigorous imprisonment. Two

years' sentence was given along with a fine of Rs.2000/- for

the charge under section 13(1)(d) read with section 13(2) of the

Act and in default of payment of fine, one year rigorous

imprisonment was given. Both the sentences were ordered to

run concurrently and any period of imprisonment already

undergone was ordered to be set off under section 428 of the

Cr.P.C.

8

13. On appeal, the High Court re-examined the matter and

confirmed the findings of the trial court, but reduced the

sentence of two years into one year for the offence under

section 13(1)(d) read with section 13(2) of the Act.

14. The appellant aggrieved by the said judgment has

preferred this appeal.

15. We have heard learned counsel for the parties. Mr. Altaf

Ahmed, learned senior counsel appearing for the appellant,

submitted that in corruption cases demand and acceptance

are two most important aspects and both, the demand as well

as the acceptance, must be proved by the prosecution. In

absence of clear evidence of demand and acceptance, the

conviction in corruption cases cannot be sustained.

16. Reliance was placed on the case of Subash Parbat

Sonvane v. State of Gujarat (2002) 5 SCC 86. In this case

there was no statement of any prosecution witness by which

the demand of any amount from the complainant could be

proved. In this case when the appellant asked the complainant

to come in the evening and while the accused was going

towards the toilet, the complainant followed him and gave him 9

something from his pocket which the appellant put in his

pocket. The Court took the view that it could not be inferred

that the appellant had demanded any amount from the

complainant or that he had obtained the same.

17. There is no quarrel with the proposition of law that in

corruption cases, the prosecution must prove both the

demand and acceptance of the bribe amount, but the facts of

the present case are altogether different and the

aforementioned judgment is of no assistance to the appellant

in the present case.

18. In the instant case, the appellant had clearly demanded

the amount from PW1. The relevant portion of the statement

of the complainant reads as under:

"......He is the Proprietor of OLOHV Engineering Services and the above company was doing contract work for the Railways. From the year 1993 to 1997, he has completed the contract work for Rs.1 Crore. The Site Engineer will sign in the measurement book. The payment will be made by cheque. The contract work was completed in the year 1997 and there was a balance of Rs.9 lacs due to P.W.1. During that period, the accused was the Site Engineer and he has to verify the measurement and entry to be made in the measurement book. The accused informed that P.W.1 has to return the unused materials to the Railway Department. On 10

1.4.98, at about 9.30 a.m. the accused demanded a bribe amount of Rs.5000/- to be paid to clear the final bill......"

19. According to Balachander PW2, the money was handed

over to the appellant in his presence. Immediately after the

bribe amount was handed over to the appellant, he started

counting the currency notes. At that time Balachander PW2

came out and gave the pre-arranged signal. Soon thereafter

the Inspector and the trap team entered into the above room

and the appellant was arrested. The Sodium Carbonate

solution was prepared and Phenolphthalein test was

conducted on both the hands of the appellant separately.

There was colour change in the solution and they were

preserved in separate bottles.

20. Balachander PW2 is an independent witness and he has

corroborated the evidence of the complainant PW1. Therefore,

in the facts and circumstances of this case, it is difficult to

accept the submission of the appellant that there was no

demand and acceptance of the bribe amount. Both the Trial

Court and the High Court rejected the defence version of the

appellant.

11

21. This Court in State of U.P. v. Dr. G. K. Ghosh (1984) 1

SCC 254 has aptly observed that by and large a citizen is

somewhat reluctant, rather than anxious, to complain to the

Vigilance Department to have a trap arranged even if illegal

gratification is demanded by a Government official. The

relevant para 9 at page 261 of the judgment reads as under:

"9. By and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait for a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort whilst doing so. Thereafter, he has to attend the court at the time of the trial from day to day. He has to withstand the searching cross-examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of 12

being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go-bye to the rules, the official refuses to yield."

22. We have heard the learned counsel for the parties at

length and carefully perused the impugned judgment of the

High Court as well as the judgment of the Principal Special

Judge for the CBI Cases. We have also carefully examined the

evidence and documents on record. The view which has been

taken by the courts below seems to be the correct view. In the

facts and circumstances of the case, no interference is called

for. The appeal being devoid of any merit is accordingly

dismissed.

...............................J. (Dalveer Bhandari)

...............................

J. (P. Sathasivam) New Delhi;

13

August 24, 2009