The High Court acquitted appellants convicted under the Prevention of Corruption Act because the sanction for prosecution was tainted by the sanctioning authority consulting the TLO, and the presumption of bribery under Section 20 was rebutted by evidence of Flag Day collection targets.
Judgment of conviction and sentence set aside; appellants acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl. A. No.285 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 19.10.2024
Pronounced on : 08.11.2024
CORAM : JUSTICE N.SESHASAYEE
Criminal Appeal No.285 of 2020
1.K.Rajendiran 2.M.Mani
... Appellants
Vs.
State represented by the Inspector of Police V&AC, Villupuram (Crime No.5/2006)
... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code to set aside the judgment and order of conviction and sentence dated 30.06.2020 passed in Special Case No.10 of 2014 on the file of the learned Special Judge, Special Court for Prevention of Anti-Corruption Act Cases, Villupuram and acquit the appellants.
For Appellants : Mr.R.Natarajan for 1st Appellant Mr.S.Anbalagan for 2nd Appellant For Respondent : Dr.C.E.Pratap Government Advocate (Crl. Side)
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JUDGMENT
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The appellants herein challenge the judgment of the Special Court for V&AC cases, Villupuram dated 30.06.2010 made in Special Case No.10 of 2014, by which the Special Court had convicted the first appellant (A1) for offences under Section 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act and imposed a sentence of four years rigorous imprisonment and a fine of Rs.5,000/- in default of which to undergo six months simple imprisonment and the second appellant (A2) was convicted for offences under Section 12 of the Prevention of Corruption Act and imposed a sentence of three years rigorous imprisonment and a fine of Rs.3,000/- in default of which to undergo three months simple imprisonment.
purposes vide Ext.P2, application dated 01.08.2002. These applications would be processed by the Electricity Board based on seniority. One of the
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requirements for granting free electricity connection to agriculturists is to produce a NOC from PWD (WRO).
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which at 4 p.m, PW15, registered Ext.P4, FIR (and also marked as Ext.P22).
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7.2 Of these two provable facts, payment of bribe-money is perhaps the easiest to prove. So far as the proof of acceptance of bribe-money goes, as stated earlier, through a trap procedure the prosecution at the best can only prove the receipt of money planted for trap, and not its acceptance as bribe. Receipt and acceptance are two different acts. A receipt of money involves only an act of receiving it, and it need not be accompanied by any mensrea to accept it as bribe. To state it differently, acceptance of bribe surely requires an intent to hold what was received, and hence mensrea will be an indispensable factor for proving acceptance. Therefore, proof of receipt of planted currencies cannot be equated to its acceptance as bribe money. In other words, the intent of the bribe-giver in tendering the money must fit in with the intent of the bribe-taker in accepting it as bribe money like two pieces of jig-saw puzzle.
7.3 But, whether there has been an intent to hold the money received as bribe will only be within the personal knowledge of the accused-person, where the burden will be on him to explain. It is hence, when the planted money is paid and received, the two facts which are adequate to establish the success of a trap, the presumption under Sec.20 will come to play, because the prosecution may not
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know the intent of receiving the planted currencies. And since the intent of the accused person behind receiving the money is within his personal knowledge, he is given an opportunity to rebut the presumption with a believable explanation. Here, the explanation of the accused-person must emanate from evidence, and it must be a plausible and not fanciful explanation once evidence undergoes judicial scrutiny. If however, an accused person could not offer even a plausible and believable explanation as to why he touched the sinned currencies, then his explanation fails, and the presumption under Sec.20 of the PC Act will fix him firmly to the crime alleged against him. And, only after the court is satisfied that the person facing a charge under Sec.7 of the Act has not been able to offer a plausible explanation on evidence to rebut the presumption under Sec.20 of the Act, can the court draw an inference regarding demand for bribe. It is therefore, axiomatic that unless the evidence on record leads to an irresistible conclusion that the intent of the bribe-taker in receiving the planted currencies is towards accepting it as bribe, even an inference of demand cannot be made.
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bribe-money, but only towards Flag Day contribution for meeting the target fixed by the Tahasildar.
Court in Periaswamy case. It reads:
" 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
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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 way. 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 sometimes 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.”
Therefore P.W.3's evidence cannot be ignored by the Court as an irresponsible statement. Acting on the evidence of P.W.3, this Court has to hold that A1 has
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been able to provide a plausible explanation, if not a believable explanation that the tainted currencies were received not with intent to accept it as bribe but with an intent to meet the target for contribution of Flag Day Fund. The presumption under Sec.20 of the Ac thus stands rebutted and consequently it has to be held that A1 is not guilty of the charges for which he faced trial.
a) how even the Flag Day fund which is supposed to be mobilised through public contribution for the welfare of our armed forces during the Flag Day Celebrations on 7th of every December can be visited with an allegation of target-collection, leaves room for being exploited by it and adopt it as a line of defence in criminal trial. An individual may suffer from aberrations of integrity, but the system shall not create a space for it. Here the guilty may manage to sneak away, and the innocent might be victimised. Neither is good for public service. Where a system is put in place by the Executive which paves way for corrupt practices then it should be eliminated. Indeed, it would be appreciable if the Government of the day leaps beyond the politics of its existential demands and propagates a sense of national pride among the citizenry and promotes voluntary contribution by the
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citizenry through net-banking and wallets, then it may eliminate the possibility for the corrupt to sneak through system-bred gaps. This may also be extended to collection of land tax ( kist ), where it is said, that taxtargets are fixed for Village Administrative Officers for a fasli. What generally happens is that, without he actually collecting tax from the landowners, anyone who approaches VAO officially is often fleezed to meet the target. To repeat, an individual may corrupt himself and get victimised, but the system should not enable victimisation of any. These are areas for reforms, and it is not the Court to take a call. Here it is apposite to reproduce the following passage from Periasamy case. The learned single Judge observes:
“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.”
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b) Fund raising for Flag Day must be a national movement where society participates with a sense of pride. Several decades back school children were encouraged to participate in the fund raiser, which it might have to be sated, had helped them appreciate that the nation is safe because some among them guard our borders. The children of yesteryears joyfully participated in it, and no parents took any offence to it. There was a pride all around. However, it might be an over ambitious expectation from the contemporary parents and their children that they will feel encouraged to participate in Flag Day Fund raising, as they are seriously seen stuck deep in a confusion in understanding and differentiating empowerment and entitlement. During the course of the arguments this court even checked with many Advocates in the court hall if they had seen any Flag Day Fund collection on the roads or elsewhere around the Flag Day celebration, but the unanimous answer it got was a disappointing 'No'. Should this court take judicial notice of this downfall? In his inaugural address in 1961, John. F. Kennedy thundered, “' ask not what your country can do for you, ask what you can do for your country ” but it ignited the national pride not just for his audience in America but everyone from every nation who prided his country. A Flag Day fund raiser is a minimalistic effort of a
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common citizen towards building the national pride. But in today's India, which is a republic in its adolescence, it might be a difficult proposition to remind the citizenry to stand by our jawans. “ Why should my child do it? ” And, “ why should I do it ” would be the most likely questions that will fill the social media, and a story will be spun as if the nation cares its children the least, and dignity of the one who advocates will be mercilessly preyed on. Quo vadis the national psyche?
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the sanction for prosecution is not an “ idle formality” but is “ sancrosanct which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against public servant.” A sanction, therefore, must emerge as a pure spring sourced directly from the mind of the sanctioning authority upon he applying it to the materials before it. He need to ask his conscience and none others. Having stated thus, this Court partly accepts the submission of the prosecutor that there is nothing wrong if someone who is unfamiliar with the process of applying one's mind to the facts placed before him from consulting the one who is familiar with the process to learn how to decide on the issue of granting sanction for prosecution. But it is underscored that:
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from the policemen who investigates a crime. Any consultation of any kind with the prosecuting or investigating agency will taint the sanction with bias, and it is the least recommended practice which no court wedded to neutrality of its conscience can appreciate.
P.W.1 very obviously had walked on the wrong lane, plucked and ate the sinned fruit when he conceded, rather innocently, that he had consulted the TLO for the preparation of Ext.P1. It might have been done unwittingly, but it does affect the sanctity of the sanction he had accorded. Necessarily this court has to hold that the sanction as accorded is no sanction in law. This would imply that irrespective of the merit of the case on evidence, the prosecution still has to lose.
08.11.2024
Index : Yes / No Neutral Citation : Yes / No Asr/ds
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To :
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N.SESHASAYEE, J.
ds
Pre-delivery Judgment in Criminal Appeal No.285 of 2020
08.11.2024
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3 issues framed by the court
Whether the sanction under Section 19 of the PC Act is valid when the sanctioning authority consulted the TLO?
Whether the receipt of money for Flag Day contribution rebuts the presumption under Section 20 of the PC Act?
Whether the second appellant abetted the crime of accepting bribe?
Colour shows how this judgement treated each authority
Periyaswamy Vs Inspector V & AC, TiruchirapalliReferred¶79
Periyaswamy Vs Inspector V & AC, Tiruchirapalli [1999 Cri LJ 2944] · Who else cites this
Periaswamy caseReferred¶80
Periaswamy case
Mohd.Iqbal Ahmed Vs State of A.P.Relied on¶108
Mohd.Iqbal Ahmed Vs State of A.P. [(1979)$ SCC 172 : AIR 1979 SC 677] · Who else cites this
5 provisions across 2 enactments
K.Rajendiran
M.Mani
State represented by the Inspector of Police V&AC, Villupuram
N.Seshasayee
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
