N. Vijayakumar vs State of Tamil Nadu

HELD : 1.1 PW-2 is the key witness. The sanctioning authority, who sanctioned to prosecute the appellant was examined as PW-1 and the complainant was examined as PW-2. It is evident from the deposition of PW-2, 3, 5 and 11 that they reached the office of the accused at 05:30 p.m. on 10.10.2003, and at that point of time the accused was not found in the seat and they have waited for him, and appellant has come to the office at 05:45 p.m. on his bike and took his seat. PW-2, in his deposition has stated that when he met the appellant-accused along with other witnesses, appellant has made a demand for Rs.500/- and cell phone. He has stated that in view of such demand he has handed over the powder coated currency notes and cell phone which were received by the accused and kept in the left side drawer of the table. The official witness is examined as PW-3. He also stated in his deposition, that when they reached the office of the accused, accused was not in the seat. Therefore, they have waited and accused arrived in the office at 05:45 p.m. PW-2 in his deposition has clearly stated that he met the accused earlier several times and again when he met on 09.10.2003 along with PW-5, the appellant-accused has demanded for Rs.500/- and a cell phone as illegal gratification. In the cross-examination PW2, has admitted that he never saw the accused earlier and the appellant has made a demand when he met firstly on 09.10.2003. It is also clearly deposed by PW-2 in the cross-examination that he was ill treated by the accused several times earlier as he belonged to scheduled caste community. From his deposition it is clear that there were ill feelings between the appellant and the PW-2. It is also clear from the evidence, after handing over currency and cell phone, he along with other witnesses who have accompanied him they came out of the office and signalled to the inspector. PW-2 also admitted in the cross-examination that he was not having any details regarding the purchase of M.O.2 cell phone. It is also clear from the evidence that though the trap was at about 05:45 p.m., phenolphthalein test was conducted only at 07:00 p.m. There is absolutely no evidence to show that why such inordinate delay occurred from 05:45 p.m. to 07:00 p.m. The office of the Town Assistant Health Officer and other officials of the department is also near to the office of the appellant. PW3 in clear terms, has deposed that only on demand of anticorruption officials, the accused had taken and produced the money and cell phone, which was in the drawer of the table. The Circle Health Inspector of Madurai Corporation, who was examined as PW-4 has deposed in the cross-examination that he had no idea what was going on before he reached the office and he has also deposed that he was not aware about Rs.500/- and cell phone, by whom and when it was kept. He, too has deposed in the cross-examination that only on the direction of the inspector the appellant-accused has taken out the money and the cell phone. The deposition of PW-5 is also in similar lines. Another key witness on behalf of the prosecution is PW-11, i.e., the Deputy Superintendent of Police, Bodinayakkanur Sub-Division, who was working as the Deputy Superintendent of Police, Vigilance and Anti-corruption Wing, Madurai during the relevant time. He also in his deposition has clearly stated that the appellant-accused was tested with the prepared Sodium Carbonate Solution at 19:00 hrs. It is clear from the deposition of all the witnesses, i.e., PW2, 3, 5 and 11 that trap was at about 05:45 p.m. and the hands of the appellant were tested only at 07:00 p.m. Further in the crossexamination, PW-11 has clearly stated that when they were monitoring the place of occurrence for about one hour and during that period many persons came in and out of the office of the appellant. Added to the same, admittedly, after completion of the phenolphthalein test, statement of the appellant was not recorded as required under Rule 47 Clause 1 of the Vigilance Manual. Further PW-11 also clearly deposed in the cross-examination that he did not test the hands of the appellant-accused immediately after payment and handing over of the money and cell phone. Further PW-4 and PW-11 both have stated in their evidence that, only when TLO has asked the bribe amount and cell phone, the accused produced the same by taking out from the left side drawer of his table. Mere recovery of tainted money, divorced from the circumstances under which such money and article is found is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In view of the material contradictions as noticed in the deposition of key witnesses, the benefit of doubt has to go to the accused-appellant. Having regard to material contradictions and also as referred to in the trial court judgment, it can be said that acquittal is a “possible view”. Even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellantaccused, appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PW-3, 5 and 11 that the currency and cell phone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cell phone were given to the appellant at 05:45 p.m. no recordings were made and the appellant was not tested by PW-11 till 07:00 p.m. There are material contradictions in the deposition of PW-2 and it is clear from his deposition that he has developed animosity against the appellant and he himself has stated in the cross-examination that he was insulted earlier as he belonged to scheduled caste. Further there is no answer from PW-11 to conduct the phenolphthalein test after about an hour from handing over tainted notes and cell phone. The trial court has disbelieved PW-2, 3 and 5 by recording several valid and cogent reasons, but the High Court, without appreciating evidence in proper perspective, has reversed the view taken by the trial court. Further, the High Court also has not recorded any finding whether the view taken by the trial court is a “possible view” or not, having regard to the evidence on record. Though the High Court was of the view that PW-2, 3 and

5 can be believed, unless it is held that the view taken by the trial court disbelieving the witnesses is not a possible view, the High Court ought not have interfered with the acquittal recorded by the trial court. In view of the material contradictions, the prosecution has not proved the case beyond reasonable doubt to convict the appellant. [Paras 9, 11][71-C-H; 72-A-H; 73-A-B; 77-A-G]

1.2 Mere recovery by itself cannot prove the charge of the prosecution against the accused. To prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. Even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. Initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. In view of the contradictions noticed in the depositions of key witnesses examined on behalf of the prosecution, the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record. The impugned judgments of conviction dated 28.08.2020 and 22.09.2020 and orders imposing sentence dated 15.09.2020 and 29.09.2020 are set aside. [Paras 12, 14][77-G-H; 78-A-B; 79-E-G; 80-D]

Murugesan & Ors. v. State through Inspector of Police (2012) 10 SCC 383 : [2012] 13 SCR 1; Chandrappa & Ors. v. State of Karnataka (2007) 4 SCC 415 : [2007]

2 SCR 630; Hakeem Khan & Ors. v. State of Madhya Pradesh (2017) 5 SCC 719 : [2017] 2 SCR 735; C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 : [2009] 2 SCR 1021; B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 : [2014] 4 SCR 554 – relied on.

Anil Rai etc. v. State of Bihar (2001) 7 SCC 318 : [2001]

1 Suppl. SCR 298 – referred to.