MADRAS HIGH COURT

PERIYASWAMY VS INSPECTOR, VIGILANCE AND ... ON 23 MARCH, 1999

Summarised Judgement  (Scroll for Complete Judgement)

Facts of the Case:

Periyasamy, the appellant herein was employed as a Revenue Inspector in Revenue Department, Vangal Firka, Karur Taluk, Trichy District. The Special Judge at Richy by his judgment dated 28-4-1987 in S.C. No. 2 of 1986 convicted the appellant under Section 161, I.P.C. and Section 5(2) read with 5(l)(d) of the Prevention of Corruption Act, 1947 and sentenced him to undergo imprisonment for six months, for having received a sum of Rs. 200/- as illegal gratification from the Jagannathan of Varapalayam village, Karur Taluk.

Challenging the above said conviction and sentence, the appellant filed an appeal before this Court in C.A. No. 268 of 1987. This Court, after hearing the counsel for the parties, by the order dated 24-9-1992 acquitted the appellant in respect of the charges mentioned above, mainly on the ground that the sanction granted for prosecution was invalid.

On S.L.P. being filed by the State on behalf of the respondent-police, the Apex Court by the order dated 8-1-1998 held that the sanction was valid, in the light of Section 465, Cr.P.C. and set aside the judgment of acquittal and remitted the matter to this Court for fresh disposal of this appeal on other points raised herein.

In pursuance of the said order, the above appeal was posted by the order by My Lord The Chief Justice before Hon'ble C. Shivappa, J. When the matter came up for the first time on 19- 2-1998, Mr. Sridhar, the counsel earlier appeared submitted that he had already handed over the papers to the appellant and therefore, requested this Court to issue notice to the appellant. Accordingly, notice was issued. Then, it came up on several dates before the learned Judge. The counsel for both the parties entered appearance, in the meantime. They also argued on several dates between 23-3-1998 and 4-3-1999.

Observation of Court:

In the instant case, as stated earlier, the plea of the defence is receipt of the money towards Flag Day collection. On consideration of the facts and circumstances of the case, this Court holds that the amount was received only as a bribe and not as a Flag Day collection. I do not propose to hold, in the light of the decisions referred to above, that the appellant received the said amount towards the Flag Day collection for showing favour to P.W. 1, since the demand towards Flag Day collection has not been established by the defence in this case.

Therefore, it is, in this context, appropriate for this Court to direct the State Government to take into consideration of the view expressed by this Court with reference to the difficulties experienced by both the public servants and the public due to the Circulars issued by the Government.

Judgement:

In view of the peculiar situation where he was acquitted by this Court earlier and in the S.L.P. filed by the State, the Apex Court remitted the matter to this Court for fresh disposal, I deem it fit to modify the sentence of six months imprisonment into that of imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/-.

So, the appellant is sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/-. The appellant who is present before this Court today is directed to be in the Court till the rising of the Court so as to undergo the sentence. The time for payment of fine of Rs. 1,000/- is one month from today.

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Complete Judgement

MADRAS HIGH COURT

PERIYASWAMY VS INSPECTOR, VIGILANCE AND ... ON 23 MARCH, 1999

  

Equivalent citations: 1999 CriLJ 2944

Author: M Karpagavinayagam

Bench: M Karpagavinayagam

JUDGMENT M. Karpagavinayagam, J.

1. Periyasamy, the appellant herein was employed as a Revenue Inspector in Revenue Department, Vangal Firka, Karur Taluk, Trichy District. The Special Judge at Richy by his judgment dated 28-4-1987 in S.C. No. 2 of 1986 convicted the appellant under Section 161, I.P.C. and Section 5(2) read with 5(l)(d) of the Prevention of Corruption Act, 1947 and sentenced him to undergo imprisonment for six months, for having received a sum of Rs. 200/- as illegal gratification from the Jagannathan of Varapalayam village, Karur Taluk.

2. Challenging the above said conviction and sentence, the appellant filed an appeal before this Court in C.A. No. 268 of 1987. This Court, after hearing the counsel for the parties, by the order dated 24-9-1992 acquitted the appellant in respect of the charges mentioned above, mainly on the ground that the sanction granted for prosecution was invalid.

3. On S.L.P. being filed by the State on behalf of the respondent-police, the Apex Court by the order dated 8-1-1998 held that the sanction was valid, in the light of Section 465, Cr.P.C. and set aside the judgment of acquittal and remitted the matter to this Court for fresh disposal of this appeal on other points raised herein.

4. In pursuance of the said order, the above appeal was posted by the order by My Lord The Chief Justice before Hon'ble C. Shivappa, J. When the matter came up for the first time on 19- 2-1998, Mr. Sridhar, the counsel earlier appeared submitted that he had already handed over the papers to the appellant and therefore, requested this Court to issue notice to the appellant. Accordingly, notice was issued. Then, it came up on several dates before the learned Judge. The counsel for both the parties entered appearance, in the meantime. They also argued on several dates between 23-3-1998 and 4-3-1999. Since Hon'ble C. Shivappa, J. retired on superannuation on 4- 3-1999, the Registry placed the papers before My Lord The Acting Chief Justice soliciting the orders for posting the same before some other learned Judge. Accordingly, My Lord The Acting Chief Justice by the order dated 10-3-1999 directed the Registry to post it before me. That is how the above appeal has come up before me on 12-3-1999.

5. Mr. C. Selvaraj, the counsel for the appellant and Mr. Balasubramaniam, the learned Government Advocate appearing for the respondent were heard for some time. The matter was adjourned to. 15-3-1999 , 16-3-1999 and 17-3-1999 for further hearing. On these dates, Mr. N.T. Vanamamalai, the learned senior counsel representing Mr. C. Selvaraj appearing for the appellant, was fully heard. The learned Government Advocate, in reply, made his submission at length. After hearing both the counsel, the judgment is being pronounced today.

6. Let us now go into the facts leading to the conviction imposed upon the appellant by the trial Court :--

Periyaswamy, the accused is working as a Revenue Inspector in Revenue Department, Vangal Firka, Karur Taluk. PW 1 Jagannathan is a resident of Varapalayam village, Karur Taluk. His brother Palanisamy died recently. In order to withdraw the amount deposited in Karur Vysya Bank in the name of the said Palanisamy, he was advised by the Bank Officials that he shall obtain legal heir certificate and death certificate. PW 1 after obtaining the death certificate Ex. P2 from Taluk Office, presented the application Ex. PI requesting for the issue of legal heir certificate in favour of his mother in the same office. The Deputy Tahsildar after endorsing the same, instructed PW 1 to get the report from the Revenue Inspector, the accused after handing over Ex.P. 1 and P2 to him. So, on 21-8-1985 at 6.30 a.m. PW 1 went to the house of the accused at Karur and handed over the said documents and requested to give a report. The accused, in turn, demanded Rs, 300/- as bribe for the purpose of sending a report recommending for the issue of legal heir certificate. PW 1 stated that he was unable to give to Rs. 300/-, but however, he gave Rs. 100/- to the accused, who received it. He further instructed PW 1 that the balance amount of Rs. 200/- is to be paid to him within one week. On 28-8-1985 and I -9-1985 PW 1 went and met the accused, but the accused sent him away stating that he must come with the balance amount of Rs. 200/- as bribe for giving the report. Since PW 1 did not incline to pay the balance amount as bribe, on 2-9-1985 at about 2.00 p.m. he came to the Vigilance Office at Trichy and met PW 8, the Inspector of Police and gave the complaint Ex. P3.

On receipt of the said complaint, PW 8 registered the case. On 3-9-1985 early morning in the presence of one Gunasekaran (PW 2), working as Junior Assistant in Public Works Department and one Somasundaram, the Engineer, phenolphthalene demonstration test was conducted after smearing the phenolphthalene powder on the currency notes of Rs. 200/-, M.O. 1 series which was handed over by PW 1 to PW 8. The mahazar Ex. P4 was prepared, attested by PW 2 and another. On the same day at 4.00a.m. PW 1, PW 2, PW 8 and other Officers went to Karur. Near the house of the accused, the car was stopped and PWs 1 and 2 were instructed to go to the house of the accused with M.O. 1 series, It was about 6.20 a.m. PW 1 went and tapped the door of the house of the accused. The accused opened the door and asked PW 1 to come back half-an-hour later. Atabout7.15 a.m. PWs. 1 and 2 again went to his house. At that time, the accused was coming back to his house after getting vegetables from the market. Then, PW 1 was asked to come inside the room. PW 2 also accompanied him. Then, the accused asked PW 1 whether he had brought the money. PW 1 took out the currency notes and handed over to the accused, who in turn put the same in his shirt pocket. Then PWs 1 and 2 came out.

On getting the signal from PW 1, PW 8 and other officers came'inside the house of the accused. After introducing themselves as Vigilance Officers, PW 8 asked the accused whether he received any money from PW 1. The accused out of shock got perspired. He would state that he received Rs. 200/- towards Flag Day Collection from PW 1 and that when he was searching the receipt book the police had come. Then, phenolphthalene test was conducted on the right hand fingers, which proved positive. Thereafter, the accused took out the currency notes MO. 1 series from his pocket and handed over the same to Police Officers. On comparison with the notes mentioned in tin; Mahazar, it was found tallied with the numbers of the currency notes. The shirt M.O. 3 worn b'y the accused also was subjected to the test which proved positive. After the test, the solution was preserved in three bottles M.Os. 3 to 5. The mahazar Ex.P8 was prepared and the same was attested by PW 2 and another. PW 8 recovered Exs. PI and P2 and receipt book Ex. P7 and the circular Ex.P11 from the table of the accused. Ex. P9 is the observation mahazar. Ex. P18 is the rough sketch. Thereafter, the accused was arrested and brought to Trichy and after getting the statement he was released. PW 8 examined other witnesses. On 31-1-1986 he sent the report to the concerned authority through Vigilance Director and obtained the sanction Ex. P13. After finishing the investigation, PW 8 filed charge sheet for the offences referred to above.

7. The Special Court after examining P.Ws. 1 to 8 through whom Exs. P.I to 18 and M.Os. 1 and 5 were marked, recorded a statement of the accused under Section 313, Cr.P.C. According to the said statement of the accused, P.W 1 did not meet him either on 21-8-1985 or on 28-8-1985 and for the first time he came on the date of trap at 7.30 a.m. and the accused demanded money from P.W 1 towards Flag Day collection and received Rs. 200/-, in pursuance of the Circular issued by the Department to finish Flag Day collection on or before 5-8-1985 and the said explanation was given by the accused to P.W 8 and as such, he did not demand any bribe and he was innocent.

8. The learned Special Judge, on having accepted the case of prosecution, while rejecting the case of defence, convicted the accused for the offences charged.

9. Mr. N.T. Vanamamalai, the learned senior counsel appearing for the appellant, would at length contend by citing various authorities that the explanation given by the accused could be accepted as probable, inasmuch as the said explanation has been given by the appellant even at the earliest point of time, while the trap was conducted by the Inspector of Police, which is also mentioned in the mahazar prepared at that time, that the materials placed by the prosecution which suffer from various infirmities, would not be sufficient to hold that the prosecution has established that the accused received the money as a bribe for recommending for the issue of legal heir certificate and that therefore, the presumption under Section 4(1) of the Prevention of Corruption Act (hereinafter referred to as 'the Act') cannot be said to be raised and that even assuming such a presumption raises, the same is rebutted by the appellant herein by giving the probable explanation, especially when the said explanation is supported by some of the documents produced by the prosecution by which it is clear that the accused was directed to make Flag Day collection.

10. In reply to the above submissions, Mr. Balasubramaniam, the learned Government Advocate would contend that mere receipt of money which is. not a legal remuneration by the public servant would be enough to raise the presumption under Section 4(1) of the Act and that the said presumption cannot be said to be rebutted by merely giving some explanation without adducing any acceptable material to support the said explanation and as such, the trial Court's conclusion regarding conviction imposed on the appellant is justified.

11. I have carefully considered the submissions made by the counsel for the parties and also made thorough scrutiny of the evidence available on record in the light of the said submissions.

12. Before going into the intrinsic credit- worthiness of the respective pleas, it is appropriate to refer to the decisions cited by both the counsel, in order to have a clarity over the questions of law with reference to the presumption under Section 4(1) of the Act and the extent of the onus to be discharged by the accused for rebutting the said presumption.

13. Let us now quote the provision under Section 4(1) of the Act. Section 4( 1) of the Act reads thus :--

Where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code (or of an offence referred to in clause (a) or Clause (b) of sub-Section (1) of Section 5 of this Act punishable under sub-Section (2) thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempt to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be, without consideration for a consideration which he knows to be inadequate.

14. From a reading of the above section, it is manifestly clear that its operation, in terms, is confined to a trial of an offence, punishable under Section 161 or Section 165, Penal Code or under clause (a) or (b) of Section 5(1) read with sub-Section (2) of that section of the Act.

15. The prosecution in the instant case is also for the offence under Section 161, I.P.C. Therefore, there is no difficulty in holding that this section is applicable to the present facts of the case. It is also clear from this section that if the prosecution proves that the accused has accepted gratification other than legal remuneration, then the Court has to presume that the gratification was accepted as a motive or reward as mentioned in Section 161, I.P.C. But, with reference to the degree and character of the burden of proof to be discharged by the prosecution to invoke Section 4(1) of the Act, there are two views of judgments rendered by the Apex Court. One opinion is that mere receipt of money by the public servant would be enough to raise the presumption under Section 4(1) of the Act. The other is that mere receipt would not be enough, but it shall be further proved by the prosecution that the sum was received by the public servant/accused as a bribe, in order to raise the presumption as contained in Section 4(1) of the Act.

16. Let us now refer to the earlier decisions of the Apex Court in respect of the said concept.

17. In V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 : 1966 Cri LJ 1357 the Apex Court following the decisions in Dhanvantrai Balwantrai v. State of Maharashtra, AIR 1964 SC 575 : 1964 (1) Cri LJ 437 and C.T. Emden v. State of Uttar Pradesh, AIR 1960 SC 548 : 1960 Cri LJ 729 made an observation, the gist of which is given below :--

The plain meaning of Section 4(1) of the Act undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more. When it is shown that the accused has received a certain sum of money which was not a legal remuneration, then the condition prescribed by this section is satisfied and the presumption thereunder must be raised. Mere receipt of the money which is not a legal remuneration, was sufficient to raise a presumption under this section.

18. However, in Suraj Mal v. State (Delhi Administration) AIR 1979 SC 1408 : 1979 (4) SCC 725 : 1979 Cri LJ 1087, the Apex Court, by indicating a slight variation from the above principle, would observe as follows :--

Mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money as bribe.

But, in this judgment, the Apex Court did not refer about the earlier judgments.

19. At any rate, this position has now become clear, in view of the latest Supreme Court's judgment, which is , (Mohmoodkhan Mahboobkhan Pathan v. State of Maharashtra) in which the earlier decision, viz. is referred to. The following is the relevant observation :--

Section 4(1) of the Act enjoins that upon proof of a certain premise "it shall be presumed, unless the contrary is proved that" he accepted the gratification as a motive or reward etc. If the primary condition specified in the sub-section is satisfied by the prosecution the Court is legally bound to proceed on the footing that the public servant/accused has accepted the gratification as a motive or award for doing any official work in exercise of official functions. The burden stands shifted to the accused to prove the contrary. But such shifting would not become necessary until prosecution proves that what the accused has accepted was gratification.... The primary condition for acting on the legal presumption under Section 4(1) of the Act is that the prosecution should have proved that what the accused received was gratification.... In other words, unless the prosecution proves that the money paid was not towards any lawful collection or legal remuneration, the Court cannot take recourse to the presumption of law contemplated in Section 4(1) of the Act.

20. Since this latest decision has been rendered by three Judges of the Apex Court referring the earlier decision rendered by the Apex Court in , it could be very well concluded that unless prosecution proves that money paid to the accused was a gratification or bribe, Section 4(1) of the Act cannot be invoked. So, it is bounden duty of the prosecution to establish that the money paid was not towards any lawful collection or legal remuneration but as bribe. Then only the Court can take recourse to the presumption of law contemplated in Section 4(1) of the Act and therefore, mere receipt of money by the accused or mere recovery of money from the accused would not be sufficient.

21. Now, the next aspect is the duty cast on the accused for rebutting the presumption raised under Section 4(1) of the Act. The consistent view of the Court as well as the Apex Court from the beginning is that the burden of proof under Section 4(1) cast on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which rests on the prosecution to prove its case, namely, the receipt of money as bribe. The accused may rebut the presumption by showing a mere preponderance of probability in his favour. It is not necessary for him to establish his case beyond a reasonable doubt.

22. As stated earlier, if the case put forward by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception. But, once the case of the prosecution is proved giving rise to a presumption under Section 4( 1) of the Act, it is sufficient for the accused to offer probable explanation or defence. In other, words, if the prosecution proves that acceptance of the amount by the accused as bribe and the amount does not represent legal remuneration or lawful collection, the accused shall establish that the amount was not accepted by him as a motive or reward such as is mentioned in Section 161, I.P.C. However, the accused can establish his case by preponderance of probabilities, that is to say, he need not prove his case beyond a reasonable doubt.

23. Where the burden of proof lies upon the accused under Section 4(1) of the act, he is not required to discharge that burden by leading evidence to prove his case. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused, but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4(1) of the Act. It is sufficient if the accused person succeeds in proving his defence by preponderance of probability. It is not necessary for the accused person to prove his case beyond a reasonable doubt. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts, i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.

24. To put it shortly, it is settled law that if the statute places the burden of proof on an accused person, he is not required to establish his plea, but the degree and character of proof which the accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case.

25. Coming back to Section 4(1) of the Act, it is clear that the word 'proving' as contained in the said section is common for both prosecution as well as the accused. Accordingly to section, when it is proved by the prosecution that an accused person has accepted any gratification other than legal remuneration, it shall be presumed that he accepted the said gratification as a motive or reward as mentioned in Section 161, I.P.C. unless the contrary is proved by him. Though the word 'proved' has been used with reference to both the parties, namely, the prosecution and the accused, the interpretation of the said section by the Apex Court would go to show that the burden of proof on the accused is not as onerous as that of the prosecution. In other words, the word 'proved' mentioned in the earlier part of the section in relation of the duty of the prosecution would mean to be proved beyond reasonable doubt, whereas the word 'proved' in the latter portion of the section in regard to the burden of proof on the part of the accused would mean, the same could be proved by mere preponderance of probability and need not be beyond reasonable doubt.

26. The above principles have been laid down in the following decisions :--

(1) (supra);

(2) AIR 1974 SC 773 : 1974 Cri LJ 509, M.P. Gupta v. State of Rajasthan;

(3) , Trilok Chand v. State of Delhi;

(4) , Man Singh v. Delhi Administration.

27. In the light of the above legal situation, the point for determination in this appeal is whether the prosecution had discharged its initial onus by proving that the accused had received the money as bribe, and if it be so, whether the accused had by preponderance of probability displaced the presumption under Section 4(1) of the Act, so far as to cast a doubt on the truth of the prosecution case ? .

28. On my careful consideration of the entire records of the case and the legal situation discussed in the earlier paragraphs and the respective submissions made by the counsel with reference to the merits of their respective pleas, I am of the considered opinion that the prosecution has established its case by placing the acceptable materials to show that the accused received money of Rs. 200/- bribe for recommending the issue of legal heir certificate in favour of the complainant in this case.

29. Before showing those circumstances which make this Court to derive such conclusion, it is better to refer to the charges framed in the instant case.

30. As per the first charge framed under Section 161, the accused as a Revenue Inspector, Vangal Firka Karur Taluk demanded Rs. 300/- as the illegal gratification on 2-8-1985 as his house for the purpose of recommending for the issue of legal heir certificate on the death of the brother of PW 1 and accepted Rs. 100/- on the said date and directed PW 1 Jagannathan to pay the balance of Rs. 200/-within a week's time and again demanded for the balance amount on 28-8-1985 and 1-9-1985 and in pursuance of the said demand, he received the sum of Rs. 200/- at about 7.30 on 3-9-1985 at his house.

31. As per the second charge framed under Section 5(l)(d) read with 5(2) of the Prevention of Corruption Act, the accused received the bribe amount of Rs. 100/- on 21-8-1985 and Rs. 200/- on 3-9-1985 from PW 1 by abusing the official position as Revenue Inspector and thereby committed criminal misconduct in the discharge of his official duty.

32. The circumstances through which the prosecution has established its case by the prosecution could be summarised as follows :--

(1) The brother of PW 1 died on 29-1-1985. When the deposit made in the Bank in the name of the brother was sought to be withdrawn, the Bank Officials insisted PW 1 to get death certificate and legal heir certificate. Therefore, he applied for the same and obtained the death certificate Ex.P2 dated 20-8-1985. This was issued by PW 4, the Headquarters Deputy Tahsildar on 20-8-1985. On the same day, PW 1 presented a petition Ex. P1 requesting the Tahsildar to issue legal heir certificate in favour'of his mother. On the same day, PW 5, the Record Clerk of the Taluk Office obtained the signature of Thiru Muthusamy, Deputy Tahsildar with an endorsement directing the Vangal Revenue Inspector/ accused to send a report and handed over, the paper Ex. P 1 with the said endorsement to PW 1 and asked him to meet the Revenue Inspector, accused, in order to get a report from him. In this situation, PW 1 on 21-8-1985 i.e. next day went to Karur and handed over Ex. P1 and Ex.P2, containing the endorsement made by the Deputy Tahsildar and requested him to give the report. So, the fact that the connected records have been handed over by PW 1 to the accused on 21-8-1985 has been clearly brought out by the evidence of PW 1, the complainant and PWs 4 and 5, the Revenue Officials. In the corruption case, it must be shown that the accused has got some capacity to demand for gratification as a motive or reward for doing some official act in the exercise of his official functions. The evidence of PW 1, PW 4 and PW 5 giving out the circumstances under which PW 1 was constrained to meet the accused by handing over of the documents Exs. P1 and P2, would clearly go to show, that the accused had opportunity to demand some! gratification for doing favour by sending the report in favour of the complainant. It cannot be contended that Exs. P1 and P2 have not beer received by the accused, as there is no material for the same. On the other hand, PW 5, the Record Clerk would specifically state that those documents Exs. P1 and P2 were sent to the accused through PW 1 on 20-8-1985. He would also state that the sending of the documents to the accused was not entered into the Despatch Register, since they were handed over to PW 1 in order to give the same to the accused in person. This evidence has not been challenged in the cross-examination. The evidence of PW 1 relating to the handing over of the documents to the accused on 21-8-1985 has also not been challenged in the cross-examination. Therefore, on 21-8-1985 the accused was in a position, on receipt of those documents Exs.Pl and P2 to show some favour to PW 1 which was taken as an opportunity for demanding the amount as bribe for doing the said favour.

(2) The demand of the bribe is spoken to by PW 1 alone PW 1 went and met the accused on 21-8-1985. On insistence by the accused that he shall pay Rs. 300/- as bribe for sending the report in his favour, he gave Rs. 100/- on that day. Again on 28-8-1985 P.W. 1 met him at Ottakurichi. There also he demanded the money. Then, he asked him to come on 1-9-1985 Sunday at his house. When he met on 1-9-1985 the accused said that he would be able to give the report in his favour, if he comes with the balance of Rupees 200/- two days later, that, is, on 3-9-1985. Since PW 1 did not incline to give any more amount as bribe, on 2-9-1985 itself he went to PW 8, the Vigilance Inspector and gave a complaint Ex. P3. Relating to the demand of Rs. 300/- on 21-8- 1985, the receipt of portion amount of Rs. 100/- on the said date and subsequent demand for the balance amount of Rs. 200/- on 28-8-1985 and 1- 9-1985, have all been mentioned in Ex. P3 complaint. These details have been given by PW 1 both in chief examination and cross-examination. There is no suggestion in the cross-examination by the accused that he never made by such demand of bribe from PW 1 or he did not meet him earlier. Therefore, the evidence of PW 1 regarding the demand of Rs. 300/- on various dates and receipt of Rs. 100/- on 21-8-1985, is reliable and acceptable.

(3) PW 1 gave the complaint Ex. P3 to PW 8 on 2-9-1985 at 2 .00 p.m. On 3-9-1985 at about 3.15 a.m. the test of demonstration was conducted by PW 8 in the presence of PW 2 who is Junior Assistant working in Public Works Department and an Engineer, the currency notes handed over by PW 1 were smeared with phenolphthalene and Ex. P4, the mahazar was prepared, attested by PW 2 and another. According, to Ex.P4, PWs. 1 and 2 were instructed to go to the house of the accused and if the money is paid on demand, PW 1 should come out and show the signal by wiping out his face with his towel. After the preparation of the mahazar, PW 8 accompanied by PWs 1 and 2 and others went to Karur in a car and PWs 1 and 2 were dropped near the house of the accused. Both of them went at 6.30 a.m. to the house of the accused, door was tapped and the accused opened the door and came to out and told PW 1 that he could come after half an hour and in the meantime, he would finish his morning ablusions. Therefore, PWs 1 and 2 went back to PW 8 and informed the same. Then, at about 7.15 a.m. PWs 1 and 2 went to the house of the accused. The accused was found entering into the house on returning from the market purchasing vegetables. Within few minutes, PW 1 was asked by the accused to come inside the room. PW 2 also accompanied. Then, the accused asked PW 1 whether he has brought the amount. PW 1 took out Rs. 200/- kept in the pocket and gave it to the accused, who is turn, received it by right hand and put the same in his pocket. Thereafter, the accused was found searching the papers given by PW 1 earlier. In the meantime, PWs 1 and 2 came out and on getting signal from PW 1, PW 8 came inside. After introducing himself, he asked the accused whether he got the amount from PW 1. The accused got shocked and perspired. Then, he said that he got the amount of Rs. 200/- for Flag Day collection. The test conducted on his right hand proved positive. Thereafter, the accused took out the amount and handed over the same. The numbers in the currency notes were found tallied with the numbers mentioned in the mahazar. Thereafter, PW 8 recovered Ex.Pl application by PW 1 and Ex.P-2 death certificate, Ex. P7 Flag Day collection receipt book and Ex.Pl 1 circular. Ex. P8 is the mahazar. It is to be pointed out that in the cross-examination of PW 1 a suggestion was put to him that on all the dates when PW 1 met the accused, the accused demanded Rs. 200/- only towards Flag Day collection. It is also questioned in the cross-examination of PW 2 as to whether the accused asked PW 1, whether he brought the money for the Flag Day collection. PW 2 would categorically state that the accused never referred about the Flag Day collection, when he demanded money. Though the explanation given by the accused to the Inspector was even during the time of trap after recovering from the initial shock and perspiration, in the light of the specific assertion made by PWs 1 and 2 that no such demand was made by the accused by referring Flag Day collection, the testimony of PW 1 and PW 2 appears to be trustworthy. It may be true that Ex.P7 receipt book and Ex.P11 circular kept in the table of the accused would have given a clue to the accused to make such an explanation. But, when no such Flag Day collection was referred by him to PW 1, when he demanded and received money, as pointed out by PW 2, who has no axe to grind against the accused, there is no difficulty in accepting the evidence of PW 1 that the balance amount of Rs. 200/- was paid towards the balance of bride by PW 1, in pursuance of the demands made by him on the earlier dates, 21 -8-1985,28-8-1985 and 1-9-1985.

33. In the light of these materials, there is every reason for this Court to accept the evidence of PW 1 and PW 2, who are truthful witnesses who stated that the alleged sum was received by the accused at his house only towards the gratification, which is not a legal remuneration or lawful collection, in order to show favour to PW 1, and as such, the prosecution case certainly appears to merit acceptance.

34. As stated earlier, once the prosecution proved its case, the burden of proof shifts on the accused under Section 4(1) of the Act, but he need not establish his case by the test of proof beyond reasonable doubt and it would be enough if he establishes his case by preponderance of probability.

35. In the context of the above legal situation, the defence plea can now be considered from two different angles. The first angle will be to find out, if any dent has been caused in the case of the prosecution by the defence. Secondly, to note whether the defence had established its plea by preponderance of probability that its case was acceptable on its inherent merit so as to cast a suspicion on the basic truth of the prosecution case.

36. Let us now go into the intrinsic merits of the defence plea, as put forward by the appellant through the answers elicited from the witnesses in the cross-examination and his statement under Section 313, Cr.P.C.

37. As held by the Apex Court in (supra), the mere plausibility of an explanation given by an accused under Section 313, Cr.P.C. is not enough to rebut the presumption raised under Section 4(1) of the Act and however, the said presumption would stand discharged, if the effect of the materials brought on record in the chief-examination and the cross-examination of the witnesses of the prosecution coupled with the statements of the accused under Section 313, Cr.P.C. in its totality renders the existence of the fact presumed improbable, then it can be stated that the defence plea has been established through the preponderance of probability in its favour. In other words, the accused in order to rebut the presumption, need not examine the defence witnesses on his behalf, it would be enough for him to establish his case through the materials already available on record placed by the prosecution and through his statement under Section 313, Cr.P.C.

38. Keeping these principles in mind, let us now go into the explanation offered by the appellant in the instant case.

39. This is a peculiar case, where we find that the explanation was given by the accused even during the trap. It is also relevant to notice that the prosecution witnesses, namely, P.W. 2 trap witness and P.W. 8 the Inspector of Police, would refer about the explanation offered by the appellant even during the course of trap. Furthermore, the same has been mentioned in the trap mahazar Ex. P8 attested by P.W. 2 and signed and prepared by P.W. 8, the investigating officer. Therefore, it cannot be said that it is a belated explanation.

40. But, the question arises at this juncture as to whether such an explanation could be accepted merely because the same was rendered by the appellant to the officers even during the period of trap, that is, at the earliest point of time. In my considered opinion, the answer for the said question is 'emphatic 'No. The Court cannot accept blindly the explanation offered by the accused merely on the reason that it was immediately made to the officers. The Court is expected to further probe into the truth or otherwise of the said explanation, in the light of the various other materials available on record. In view of that fact situation, we have to see whether the said explanation given by the accused has been consistent throughout and there are any materials to support the said explanation.

41. On careful consideration and proper scrutiny of the materials placed before the Court, it is clear that the explanation offered by the appellant though was immediate is not acceptable for the following reasons :--

(1) The plea of the accused in 313 statement is that P.W. 1 met him only on one day, that is, on the date of trap and he never met him on 21-8-1985, 28-8-1985 and 1-9-1985. He would also state that he never received Rs. 100/- on 21-8-1985. But, when P.W. 1 was cross-examined, the accused put questions to P.W. 1 by putting the plea that P.W. 1 on several occasions met him for getting legal-heir certificate and during the said occasions, the accused scolded him, as he was being disturbed by P.W. 1 often as he had to spend a lot of time for the collection work and that P.W. 1 gave a false complaint against him, since P.W. 1 was made to come to the house of the accused for several days in order to give a legal heir certificate and that he only demanded from P.W. 1 Rs. 200/-towards the Flag Day collection. It is also suggested to P.W. 1 that on those occasions, the accused expressed his regret and grief to P.W. 1 stating that the accused was being compelled by the Government to collect money for so many purposes. This would clearly show that the stand taken in 313 statement by the accused stating that P.W. 1 met him only on 3-9-1985 the date of trap and requested money towards the Flag Day collection is quite contrary to the stand taken by him during cross-examination of witnesses.

(2) The accused in 313 statement admitted that along with P.W. 1 on the date of trap another person also came. It is also stated that he received the amount of Rs. 200/- from P.W. 1 and counted the same and put it in the shirt pocket. Even in the cross-examination of P.W. 2 it was suggested by the accused that P.W. 2 came along with P.W. 1 and was standing in the Veranda of the house of the accused. According to P.Ws. 1 and 2 both in chief and cross, the accused received the amount of Rs. 200/- through the right hand and kept it in the shirt pocket. Both P.Ws. 1 and 2 would say that the accused P.W. 1 (Vernacular matter omitted)" (have you brought Rs. 200/- which I have demanded?). As a matter of fact, when P.W. 2 was suggested that the accused asked the money towards the Flag Day collection, P.W. 2 denied the same stating that he only asked whether P.W. 1 brought the money. The main important aspect is that the phenolphthalene test was conducted on both the hands. P.W. 8 and P.W. 2 who were witnessing the phenolphthalene test would clearly say that the test conducted on the left hand fingers did not prove positive, but the test on right hand fingers proved positive. This would make it clear that the evidence of P.Ws. 1 and 2 who stated that the accused as soon as received the amount from P.W. 1 through the right hand, kept it in the shirt pocket, must be correct, inasmuch as the statement of the accused regarding counting of notes by the fingers of both the hands cannot be a true one, in the light of the fact that the test conducted on the left hand did not prove positive.

(3) The case of the defence is that as per the statement under Section 313, Cr.P.C. that before filling up the receipt book after obtaining the amount of Rs. 200/- P.W. 1 went out. As per the prosecution case, the police officers came inside the house after getting the signal from P.W. 1, P.W. 8 would state that he was standing along with the other officers at a considerable distance from the house. Therefore, it would have taken at least 5 or 10 minutes to enter into the house. If he has really received the amount towards Flag Day collection, there is no difficulty for the accused to fill up the receipt Ex. P7 which was kept in the table. As a matter of fact, Ex. P7 the receipt book contains several receipts which is to be collected and returned the same to the authorities on or before 5-8-1995. The trap was on 3-9-85, i.e., long after the due date. Moreover, the first page of the receipt book contains the name of one Kandasamy. Though the name is mentioned there, the amount is not filled up. The perusal of the first sheet would show that the dates on 24-8-1985 and 25-8-1985 have been mentioned. According to the accused, Kandasamy, his friend promised to give some amount to the accused towards the Flag Day collection. Since the amount was not mentioned by him, the accused stated that he has not put the amount in the receipt. If that is so, there is no reason to prepare the receipt for P.W. 1 whose name is already known to the accused and who has already given the amount towards the alleged Flag Day collection. Therefore, the explanation given by the accused on the basis of the receipt book kept in the table that he received Flag Day collection, cannot be said to be a probable one.

42. In view of the above discussion, I am of the considered opinion that the prosecution has proved its case against the appellant beyond reasonable doubt and that the appellant failed to rebut the presumption raised under Section 4(1) of the Act even on mere preponderance of probability in his favour.

43. In the result, the appeal is dismissed. The conviction under Section 161, I.P.C. and Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947 is confirmed. As regards the sentence, I deem it fit to reduce six months' imprisonment into three months, in view of the age of the appellant and of the fact that he has to lose his job. Accordingly, the sentence is modified.

44. Before parting with this case, a word with the State Government for consideration. In most of the corruption cases, this Court invariably noticed, especially when the revenue officials are involved, that the defence taken by the accused persons is the receipt of money for Flag Day collection or some other collection, as directed by the State Government.

45. This Court in Palania Pillai v. State, 1991 Cri LJ 1563 and a Division Bench of the Gujarat High Court in Sumanlal v. State of Gujarat, 1977 Cri LJ 626, would hold that the amount received by a public servant from the complainant, for doing an official act, even if received as contribution to Flag Day Fund, the conviction under Section 161, I.P.C. read with Section 5(2) of the Prevention of Corruption Act is justified. The Division Bench would further state that even though the accused received the amount not for his personal purpose, but for a charitable purpose, if a public servant insisted upon the payment as consideration for discharge of his duties, he would be liable for the offences under the Prevention of Corruption Act.

46. In the instant case, as stated earlier, the plea of the defence is receipt of the money towards Flag Day collection. On consideration of the facts and circumstances of the case, this Court holds that the amount was received only as a bribe and not as a Flag Day collection. I do not propose to hold, in the light of the decisions referred to above, that the appellant received the said amount towards the Flag Day collection for showing favour to P.W. 1, since the demand towards Flag Day collection has not been established by the defence in this case.

47. But, difficulty arises in these cases in this Jvay. By the circular being issued by the State Government directing the public servants to make collection for Flag Day etc., those public servants are constrained to approach the public. Incidentally, those public servants are making such a request to public, who come to them for showing some favour in discharge of their official duties. Therefore, indirectly the public also are made to make a payment to the public servants towards the Flag Day collection etc., in order to see that they get favour from the public servants in exercise of their official duties. So, ultimately, both public and public servants would suffer in a way through the Circulars.

48. This could be viewed in yet another angle. The public servants also would some times take the advantage of the circular to take up the defence plea in these corruption case, though the demand of the amount was towards bribe.

49. Therefore, it is, in this context, appropriate for this Court to direct the State Government to take into consideration of the view expressed by this Court with reference to the difficulties experienced by both the public servants and the public due to the Circulars issued by the Government. If the State Government, on the strength of the decision of this Court in 1991 Crl LJ 1563 and the Division Bench of the Gujarat High Court in 1977 Cr LJ 626, would take a policy decision not to ask the public servants to make any collection for any purpose, it would be a great service to both the public and the public servants.

50. The Registry is directed to issue a copy of this judgment to the Public Prosecutor, High Court, who in turn, is directed to send the same to the Chief Secretary to Government, along with a covering letter intimating the view of this Court for necessary steps.

51. After the pronouncement of the Judgment, Mr. Selvaraj, the learned Counsel appearing for the appellant, would request this Court to modify the sentence into fine along with the period of imprisonment already undergone.

52. I heard Mr. V.R. Balasubramaniam, the learned Government Advocate.

53. In view of the peculiar situation where he was acquitted by this Court earlier and in the S.L.P. filed by the State, the Apex Court remitted the matter to this Court for fresh disposal, I deem it fit to modify the sentence of six months imprisonment into that of imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/-.

54. So, the appellant is sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/-. The appellant who is present before this Court today is directed to be in the Court till the rising of the Court so as to undergo the sentence. The time for payment of fine of Rs. 1,000/- is one month from today.

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ABHISHEK 04012020