(Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C. praying to allow this Appeal, set aside the conviction and sentence awarded against the Appellant by the Learned Special Judge cum Chief Judicial Magistrate, Chengalpattu of Cases under the Prevention of Corruption Act, Chengalpattu in Spl.CC.No.5/2009 on his file and acquit him of the charges framed against the Appellant.)

1. This criminal appeal has been filed praying to set aside the judgment passed in Spl.CC.No.5 of 2009 on the file of the Special Judge cum Chief Judicial Magistrate, Chengalpet (Cases under the Prevention of Corruption Act) dated 30.08.2023 thereby convicting the accused for offences punishable under Section 7 and 13(2) r/w. 13(1)(d) of Prevention of Corruption Act, 1998, (hereinafter referred to as “PC Act”).

2. The case of the prosecution is that while the accused was working as Junior Engineer from 30.03.2008 to 10.10.2008, the defacto complainant as power of attorney of the original owner of the property comprised in survey no.65/6A and 65/12 situated at plot No.7A to an extent of 1292 sq.ft., Ambal Nagar, Hasthinapuram, Chennai, submitted application for temporary electricity service connection on 03.10.2008 at about 11 a.m., in the office of the accused, whereby the accused demanded a sum of Rs.5,000/- as bribe to provide temporary electricity service connection for construction purpose, for which the defacto complainant stated that he had no money. Thereafter the accused gave his mobile phone number and asked to contact him. Accordingly on 07.10.2008, the defacto complainant called the accused to provide temporary electricity service connection and the accused reiterated the demand for a bribe of Rs.5,000/- and instructed the defacto complainant to come to his office on 10.10.2008 with money. Unwilling to pay any bribe, the defacto complainant lodged a complaint. After registration of FIR, a trap was laid by the Trap Laying Officer, during which, the appellant/accused was caught red handed after accepting of bribe amount of Rs.5,000/- on 10.10.2008 at about 1.55 p.m. Upon completion of investigation, the respondent filed final report against the accused for the offences under Sections 7, 13(2) r/w. 13(1)(d) of the PC Act.

3. In order to bring the charges to home, the prosecution examined PW1 to PW13 and marked Ex.P1 to Ex.P20, and produced Material Objects MO1 to MO5. On the side of the accused, Ex.D1 to Ex.D7 were marked and the Court Ex.B1 to Ex.B4 were also marked. Upon perusal of oral and documentary evidence, the Trial Court found the accused guilty for the offences punishable under Sections 7 and 13(2) r/w. 13(1)(d) of the PC Act and sentenced him to undergo three years of simple imprisonment and to pay a fine of Rs.20,000/-, in default to undergo six months simple imprisonment for the offence punishable under Section 7 of the PC Act. The accused was also sentenced to undergo three years simple imprisonment and to pay a fine of Rs.20,000/- in default to undergo six months simple imprisonment for the offence punishable under Section 13(2) r/w. 13(1)(d) of the PC Act. Aggrieved by the conviction and sentence, the accused has preferred the present Criminal Appeal.

4. The learned Senior Counsel appearing for the appellant submitted that sanctioning authority accorded sanction to prosecute without due application of mind. The alleged application for temporary electricity service connection was invalid on the face of it, as it was submitted for constructing a house, which requires a permanent service connection. However, it was erroneously alleged in the complaint that the application was given for temporary electricity connection. Hence, there was no occasion or requirement for the accused to demand any bribe. The accused established the motive for lodging a false complaint by proving that one Krishnamurthy, a local Councillor of Hasthinapuram, had previous enmity towards the accused and instigated the complainant to lodge a false complaint. He further submits that the PW4 had clearly deposed that the accused was present with him at their office during the entire day on 03.10.2008, thereby ruling out that no demand was made by the accused on that date. Further the Ex.D2 to Ex.D7 also demonstrate that no building construction was taken place on the subject property until 2012. And the land was sold as vacant plot on 29.01.2010 and again on 21.03.2012. Therefore, in order to trap the accused, a false complaint has been lodged by the complainant.

5. The learned Senior Counsel further submitted that PW5 was a benamidar for the said Krishnamurthy in his real estate business. PW5 obtained a Power of Attorney from the owner of the property and applied for electricity connection in his own name without the owner’s knowledge or authorization. Furthermore, the Trap Laying Officer failed to conduct a preliminary enquiry before registering the FIR. The complaint was received at about 9.30 a.m. on 10.10.2008 and the FIR was registered by 10.30 am., and the trap was laid prior to 12.00 noon on the same day. In fact, the tainted money was recovered from one Logaprakash, Commercial Assistant who handed it over to the accused. The prosecution failed to establish the very demand itself. PW6 had deposed that the accused was on leave from 04.10.2008 to 09.10.2008. Hence, the alleged meeting with the defacto complainant could not have occurred at all. Since the said Logaprakash died on 23.04.2016, the accused was deprived of examining him as defence witness. Under these circumstances, the prosecution failed to prove the charges beyond any reasonable doubt, as such the conviction and sentence imposed on the accused cannot be sustained and liable to be set aside.

6. Per contra, the learned Counsel for Government of Tamil Nadu (Criminal Side) appearing for the respondents submitted that by examining PW1 to PW13, the prosecution categorically established the demand, acceptance and recovery. The sanctioning authority, examined as PW1 affirmed that sanction was accorded under (Ex.P12) after careful perusal of all records and complete satisfaction. The endorsement mahazar (Ex.P2), seizure mahazar (Ex.P3), inventory mahazar (Ex.P4), complaint (Ex.P16) and FIR (Ex.P17). clearly corroborate the prosecution’s case. The complainant was accompanied by PW2 during the trap proceedings, thereby witnessing the recovery of tainted money. Further, minor contradictions with regards to time in respect of trap proceedings would not vitiate the entire conviction. Hence, the Trial Court judgment warrants no interference by this Court.

7. Heard, the learned counsel appearing on either side and perused the entire materials available on record.

8. On perusal of the complaint marked as Ex.P16 dated 10.10.2008, reveals that the accused had allegedly demanded a bribe of Rs.5,000/- on 03.10.2008 at about 11.00 a.m., to grant temporary electricity connection and subsequently reiterated the demand on 07.10.2008 at about 1.30 p.m. over phone, thereby instructing the defacto complainant to meet him at his office on 10.10.2008 at about 1.00 p.m. However, on perusal of records reveals that no application for temporary electricity connection was submitted prior to 10.10.2008. The application was submitted only on 10.10.2008 marked as Ex.P5. Therefore, the very statement in the complaint that the application was submitted on 03.10.2008, itself is false. In fact the defacto complainant Velu was passed away on 23.04.2016 during trial, thereby the accused was deprived of his right of an opportunity to cross-examine him.

9. Furthermore, in the complaint it is alleged that the accused had inspected the premises on 04.10.2008 and after inspection, he reiterated the demand on 07.10.2008. However, the prosecution failed to substantiate this claim since no application was submitted prior to 10.10.2008 as such, it is improbable for the accused to inspect the premises prior to receiving the application. Thus, the prosecution was miserably failed to prove the prior demand. Insofar as the acceptance of bribe, there is no collection counter at the office of the accused. The Vigilance Report Ex.D1 confirms that due to the absence of collection counter, the Commercial Assistant routinely collected the charges from the consumers and remitted the same at Nehru Nagar Section. Further, the defacto complainant had paid Rs.2,000/- towards charges for a legitimate service connection. Due to the demise of the the said Logaprakash, Commercial Assistant, the accused lost the opportunity of cross-examine him as well. It was also admitted by PW4 in his cross examination. He deposed as follows:



10. Thus, it is clear that the Commercial Assistant collected sum of Rs.2,000/- as service connection charge from the complainant. Hence, there is no evidence to show that the accused accepted the bribe. Therefore, the prosecution failed to prove the acceptance of bribe beyond any reasonable doubt. Admittedly during the trap, the tainted money was not received by the accused. The tainted money was recovered from one, Logaprakash who was the Commercial Assistant at that juncture. It is also evident from the evidence of PW4 and the relevant portion of his evidence is extracted hereunder:



11. Further PW2 and PW3 who are official witnesses had deposed that the tainted money was recovered from the accused and thereafter they conducted phenolphthalein test. It is clear violation of Rule 46(1) of Vigilance Manual. Accordingly, when the trap laying team entered into the office of the accused, they must conduct phenolphthalein test in both the hands of the accused and thereafter recovery has to be made. In the case on hand, the appellant was subjected for phenolphthalein test after recovery of the tainted money. The accused also proved the motive behind the trap. PW5 is a relative of one, Krishnamurthy who was the Councillor of Hasthinapuram. He owned a building, in which he has his political office. The evidence of PW5 is as follows:



12. Thus, it is clear that the accused was allotted work and while doing the same was he was obstructed by the said Councillor Krishnamurthy, resulting in enmity towards the accused. In fact, the said Krishnamurthy had lodged a complaint to the Higher Officials to transfer the accused. The accused also lodged complaint before Inspector of Police, Chitlapakkam Police Station, Chennai on 01.09.2008 seeking police protection to carry out the work that had been prevented by the said person. Therefore, the accused successfully established the motive behind the false complaint. 13. Further it is also evident that for the property which was sold out by the said Krishnamurthy, PW5 signed as one of the witnesses. It is also admitted by PW5 and the relevant portion of his evidence is as follows:



14. Further, in the present case the complaint was lodged on 10.10.2008 at about 9.30 a.m., and was immediately registered as FIR at about 10.30 a.m. Thereafter the trap was laid at about 11.15 a.m. This, clearly demonstrate that the Trap Laying Officer without verifying the genuineness of the complaint, general reputation of the accused, the motives, reliability of the antecedents of the complainant, mechanically registered FIR and set the trap. In fact, upon receiving the complaint, the Trap Laying Officer did not conduct any enquiry, regarding the applicant nor did he visit the premises for which the electricity service connection had been applied. It is a fundamental pre-requisite condition to inquire the relevant factors prior to registration of FIR. There is no absolute necessity to register FIR immediately upon receipt of the complaint.

15. Therefore, this constitutes a complete violation of the procedure laid down in the Vigilance Manual. As per Rule 43 of the Vigilance Manual, it is the duty of the Trap Laying Officer to submit a discreet inquiry report to the Superintendent of Police, DVAC. Furthermore, since the accused is a ‘B’ Grade Officer, the Superintendent of Police must obtain permission from the Director of Vigilance and Anti- Corruption prior to registration of FIR. Consequently, the prosecution failed to prove the alleged demand through cogent and substantial evidence. In view of the overall facts and circumstances, the prosecution has failed to bring home the charges against the accused beyond any reasonable doubt, and the benefit of doubt goes in favour of the accused.

16. Accordingly, this criminal appeal is allowed and the judgment passed in Spl.CC.No.5 of 2009 on the file of the Special Judge cum Chief Judicial Magistrate, Chengalpet (Cases under the Prevention of Corruption Act) dated 30.08.2023 is hereby set aside. The appellant is acquitted of all the charges in Spl.CC.No.5 of 2009 and is directed to be set at liberty forthwith. Bail bond, if any executed, shall stand cancelled. Fine amount, if any paid, shall be refunded to the appellant forthwith.