(Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C, against the judgment pronounced by the learned Special Judge for Prevention of Corruption Act cases, Sivagangai in Spl.Case No.17 of 2014, dated 09.03.2017.)
Criminal Appeal filed under Section 374(2) Cr.P.C, against the judgment pronounced by the learned Special Judge for Prevention of Corruption Act cases, Sivagangai in Spl.Case No.17 of 2014, dated 09.03.2017.)
Common Judgment:
1. Both the Criminal appeals are directed against the judgment of conviction and sentence made in Spl.C.C.No.17 of 2014, dated 09.03.2017, on the file of the Special Court for trail of cases under the Prevention of Corruption Act, Sivagangai.
2. The case of the prosecution is
(a) The first accused was working as a Village Administrative Officer for Kirungakottai Group Village, Manamadurai Taluk and the second accused was a Village Assistant holding the additional charge for Kirungakottai Village and are public servants as contemplated under Section 2(c) of the Prevention of Corruption Act. The complainant – Maduraiveeran is a native of Thuthikulam Village and is residing along with his wife Pappal in the house situated in S.No. 250/2015, which was originally owned by Pappal's mother. After the death of Pappal's mother, Pappal's brothers and sisters executed a document dated 20.03.1990 giving the said house property along with an adjacent land to the said Pappal. In order to transfer the patta in the name of his wife Pappal, the complainant approached the first accused, two months prior to the date of complaint on 30.09.2005 and handed over the document dated 20.03.1990 and also patta in Patta No.89 stands in the name of his mother-in-law – Vellaichi. The first accused upon receipt of the above documents, demanded a sum of Rs. 3,000/- as gratification other than the legal remuneration for taking necessary steps to transfer of patta. The complainant expressed his difficulties to pay the amount demanded, but the first accused declared that he won't do anything, unless the amount is paid. Ten days thereafter, the complainant again approached the first accused, who in turn asked about the demanded amount and since the complainant expressed his inability to pay the amount and requested to reduce the amount, the first accused reduced the amount and directed the complainant to pay Rs.1,500/-.
(b) On 23.09.2005, the complainant after coming to know that Kirungakottai Village Administrative Office was shifted to the office of the Revenue Inspector at Muthanendal, went to that place and met the first accused and requested to expedite the process for transferring the patta and at that time, the first accused reiterated his earlier demand of Rs.1,500/-. Pandi, who belongs to the complainant's village of Thuthikulam, was present in the office of the first accused. The complainant informed the first accused that he had not brought the amount and requested to reduce the amount further. The said Pandi informed the first accused that the complainant belongs to his place and considering his poverty, the amount may be reduced. Thereafter, the first accused directed the complainant to pay the amount of Rs.800/- and bring the amount on Friday. The first accused drafted a petition and gave it to the complainant to get the signature of his wife.
(c) The complainant not willing to pay the amount, approached the respondent and on the basis of the complaint, a case was registered. As per the directions of the Inspector of Police attached to the respondent, he went to the office of the first accused at about 3.25p.m., on 30.09.2005 and gave the amount demanded. The first accused received the amount and gave it to the second accused, who was available in the said office, who in turn counted the amount and kept in his pocket. In the presence of official witness, phenolphthalein test was conducted on both the hands of the accused 1 and 2, which proved positive and the tainted amount of Rs.800/- was recovered from the second accused on his production from the floor under a chair. Both the accused had misused their official position and also obtained pecuniary advantages and that thereby the first accused committed the offence punishable under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and the second accused committed the offences punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and Section 109 I.P.C.
3. The Court of Chief Judicial Magistrate, Sivagangai, after the receipt of charge sheet, took the cae on file in Spl..C.C.No.17 of 2014 on its file and furnished the copies of records under Section 207 Cr.P.C., to the accused on free of costs. The learned Chief Judicial Magistrate, upon perusing the records and on hearing both sides, being satisfied that there existed a prima facie case against the accused, framed charges under Section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act against the first accused and under Section 13(1) (d) r/w 13(2) of the Prevention of Corruption Act and Section 109 I.P.C against the second accused and the same were read over and explained to the accused and on being questioned, they denied the charges and pleaded not guilty.
4. The prosecution, to prove its case, examined 12 witnesses as P.W.1 to P.W.12, exhibited 19 documents as Exs.P.1 to P.19 and marked six material objects as M.O.1 to M.O.6.
5. The case of the prosecution emerging from the evidence adduced by the prosecution, in brief, is as follows:
(a) P.W.2- Maduraiveeran – defacto complainant is the husband of P.W.7 Pappal. P.W.2 doing coolie work, is residing in Thuthikulam Village along with P.W.7. They are in possession of a house property along with adjoining vacant site owned by P.W.7's mother Vellaichi. After the demise of Vallaichi, P.W.7's brothers and sisters executed a document dated 20.03.1990 settling the property in favour of P.W.7. Since patta was in favour of P.W.7's mother, P.W.2 approached the first accused on 30.09.2005, who was the then Village Administrative Officer, Kirungakottai Village. When P.W.2 met the first accused earlier, he demanded Rs.3,000/- as bribe for transferring the patta and he expressed his inability to pay the amount. After ten days, P.W.2 again met the first accused and at that time, the first accused reiterated his demand of Rs.3,000/- and directed him to come by next week. P.W.2, after one week visited the first accused and expressed his inability to pay the amount. Hence, the first accused reducing the amount, directed P.W.2 to bring Rs.1,500/-. On 30.09.2005, P.W.2 went to the first accused office at Muthanendal and at that time P.W.3 – Pandi was found talking to the first accused. When P.W.2 requested for patta transfer, the first accused reiterated his earlier demand. P.W.2 again expressed his inability to pay the amount. P.W.3 informed the first accused that P.W.2 is doing coolie work and he is not having necessary means and requested the first accused to reduce the amount. The accused then directed P.W.2 to bring Rs.800/- and gave a paper directing him to get the signature of his wife. P.W.2 not willing to pay any bribe amount, went to the respondent's office and made a complaint of what had happened.
(b) P.W.11, the then Inspector of Police reduced oral complaint into writing as Ex.P.2. On the basis of Ex.P.2 statement, P.W.11 registered a case in Cr.No.12 of 2005 under Section 7 of the Prevention of Corruption Act and prepared the F.I.R., under Ex.P.16. After recording statement from P.W.2, he made a request to the Government Statistics Department and HR&CE, Sivagangai to depute witnesses and accordingly, one K.Seenivasan from Statistics Department and P.W.4-Kathamuthu from HR&CE Department came to the office of the respondent. P.W.11 demonstrated the phenolphthalein test to P.W.2 in the presence of official witnesses and the amount of Rs.800/- given by P.W.2 was smeared with phenolphthalein powder and the same were put into the pocket of P.W.2 and P.W.2 was instructed to give it to the first accused on demand and also to give pre-arranged signal to P.W.11 and his team. P.W.11 prepapred an entrustment mahazar under Ex.P.4. Thereafter P.W.11 proceeded by 2.35p.m., in the official vehicle and stopped their vehicle 200 metres before Muthanendal bus stop and directed P.W.2 and P.W.4 to go and meet the first accused. Accordingly, P.W.2 and P.W.4 went to the office of the first accused and on seeing them, he directed them to sit and enquired about P.W.4. P.W.2 identified P.W.4 as his cousin. The first accused asked P.W.2 as to whether he brought the amount. P.W.2, taking the amount of Rs.800/- from his pocket, gave it to the first accused, who in turn handed over the amount to the second accused. The second accused counted the amount and kept it in his shirt pocket. P.W.2 along with P.W.4 came out of that office room and signalled to P.W.11 and his team.
(c) P.W.11 and his team entered into the office room of the first accused and P.W.2 identified the accused 1 and 2 and thereafter P.W.11 directed P.W.2 to go out of that office room. P.W.11 introduced himself and the witnesses to the accused. P.W.11 informed the purpose of his visit to P.W.5 – Revenue Inspector and requested him to witness the happenings. P.W.11 conducted phenolphthalein test in the hands of the first accused and the solution turned into pink colour. When the first accused was enquired about the bribe money, he stated that the amount was with the second accused. Immediately, phenolphthalein test was conducted in the hands of the second accused and the solution turned into pink colour. P.W.11 then asked about the money received by them. The second accused disclosed that the amount was available under “S” type chair placed on the left side of the second accused, which was meant for another Village Administrative Officer. Thereafter, P.W.11 recovered the amount under Exs.M.O.1 to M.O.3 and also recovered the documents under Exs.P.5 to P.9 under the cover of recovery mahazar under Ex.P.10. P.W.11 prepared the observation mahazar under Ex.P.11 and a rough sketch under Ex.P. 17 in the presence of the said witnesses. P.W.11 brought the accused officers to the Vigilance Office and arrested them.
(d) P.W.12 – the then Deputy Superintendent of Police attached to the Vigilance and Anticorruption department, took up the further investigation, examined the witnesses and collected the documents. After the arrest of the accused, the application of P.W.7 was enquired into and in pursuance of the order passed by the Tahsildar, Manamadurai, dated 11.11.2005 under ExP.12, a joint patta was issued in favour of P.W.7 and her brothers and sisters under Ex.P. 13. P.W.10 – Scientific Assistant attached to the forensic laboratory, receiving four solutions, examined the same and found that they contained phenolphthalein and Sodium Carbonate and issued their report under Ex.P.15. After completing the investigation, he filed the final report. With the examination of P.W.12, the prosecution has closed their side evidence.
(e) When the accused were examined under Section 313(1) (b) Cr.P.C with regard to the incriminating aspects as against them in the evidence adduced by the prosecution, they denied the same as false and stated that a false case was foisted against them. Both of them have stated that they are having defence evidence. The first accused after examining three witnesses as D.W.1 to D.W.3, examined himself as D.W.4 and exhibited one document as Ex.D.1. D.W.1 – Thiru.Sadamani was the Ex.Vice President of Kirungakottai Panchayat, D.W.2- Pandi was the Ex.Village Assistant of Kirungakottai Panchayat, P.W.3- Tamilnesan was the Ex.President of Kattikulam Panchayat. D.W.1 to D.W.3 stated that the first accused was having his office at Kirungakottai and not in the Revenue Inspector's office at Muthanendal. The first accused used to come between 09.00a.m., and 09.30a.m., morning and return by 05.00p.m. Since there were no hotel or shops in Kirungakottai, the first accused used to visit Muthanendal for taking lunch. D.W.1 to D.W.3 went to Muthanendal Revenue Inspector's office on the afternon of 30.09.2005. They noticed that P.W.2 entered into the room where the first accused was taking rest and returned immediately. Thereafter, four to five persons entered into that room and brought the accused 1 and 2 and took them in their vehicle.
(f) D.W.2 stated that the said persons directed the second accused to take the amount which was lying there and that since he refused, they assaulted him and compelled him to take that amount. Thereafter they have compelled the first accused to count the amount. D.W.1 to D.W.3 subsequently came to know that the said persons are from Vigilance Department and no test was conducted in that place and there was no occurrence as alleged. D.W.4- first accused stated that P.W.2 and P.W.3 were working under one Ramasamy, Malarmangai lorry owner. Since the first accused was taking action against the said Ramasamy for taking more sand than the permit limit, the said Ramasamy developed enmity with the first accused. The first accused had taken steps for auctioning velikaruvai trees and the same was opposed by the people of Thuthikulam including P.W.3. Though P.W.3 participated in the auction process, he was not successful and hence, he developed enmity with the first accused. The said Ramasamy set up P.W.2 and P.W.3 to lodge the above complaint.
6. The learned Special Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both sides, passed the impugned judgment dated 09.03.2017 convicting the first accused for the offence under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and sentenced him to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo 6 months Simple Imprisonment for the offence under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act and convicted the second second accused for the offence under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act and 109 I.P.C., and sentenced him to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo six months Simple Imprisonment. Aggrieved by the impugned judgment of conviction and sentence, the accused 1 and 2 have preferred the above Criminal Appeals.
7. A learned Judge of this Court, taking the appeal for final hearing, considering the materials available on record and on hearing the arguments of both sides, passed a judgment dated 19.03.2024, partly allowing the appeal, confirming the conviction passed against the accused 1 and 2, but modified the sentence. The sentence of three years Rigorous Imprisonment for the offence under Section 7 of the Prevention of Corruption Act and three years Rigorous Imprisonment for the offence under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act imposed on the first accused are modified to undergo one year Simple Imprisonment for the offence under Section 7 of Prevention of Corruption Act and one year Simple Imprisonment for the offence under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. The sentence of three years Rigorous Imprisonment for the offence under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and Section 109 I.P.C., imposed on the second accused is modified to one year simple imprisonment. The learned Judge confirmed the fine amount.
8. Aggrieved by the said judgment dated 19.03.2024, the first accused preferred a S.L.P.(Crl)No.4514 of 2025 and the Hon'ble Supreme Court by observing that while passing the impugned judgment, the Court below erred in not considering the evidence in defence adduced by the accused, set aside the judgment dated 19.03.2024 and remanded the matter back to the High Court and directed to take up and dispose of the matter expeditiously, preferably within a period of six months.
9. When the matter was listed before this Court on 23.10.2025, considering the fact that the matter was lastly taken on 21.08.2025 before the then Portfolio Judge, who directed the Registry to list the matter in the first week of September 2025, the Registry was directed to submit a report as to why the matter was not listed, despite the direction of the Hon'ble Supreme Court. Since it was informed that the trial Court records were sent back to the concerned Court, this Court directed the Registry to get the records within two days and list the matter on 13.10.2025.
10. After the receipt of the trial Court records, this Court heard the learned Senior Counsel appearing for the appellant in Crl.A.(MD)No.94 of 2017, the learned Counsel for the appellants in Crl.A.(MD)No.87 of 2017 and the learned Additional Public Prosecutor appearing for the State and perused the materials available on record.
11. The learned Senior Counsel appearing for the first accused would submit that there is no charge for demand, but straightaway the charge for acceptance has been framed twice, that since there is no charge for demand, the evidence adduced for proving the alleged demand cannot be looked into, that the sanctioning authority (P.W.1) has deposed that he perused all the documents including the accused statement, but there is no such statement of the first accused placed before him and as such, the sanction is the defective sanction, that though the charge was for the incident held on 30.09.2005, P.W.2 deposed that he met the first accused on 30.09.2005 and prior to that, he met twice and at all the meetings, the first accused demanded the bribe amount, but the prosecution case is that the demand was made only on 30.09.2005 and as such, the very demand itself is doubtful.
12. The learned Senior Counsel would further contend that according to the prosecution, the first accused received the money and handed over the same to the second accused and it is not stated that whether the first accused received the amount though his left hand or right hand, but phenolphthalein test was conducted on both hands and found the same as positive and that would create a doubt about the prosecution case. The learned Senior Counsel would further submit that the first accused being the Village Administrative Officer, has no authority to issue patta and if that be so, there is no explanation as to why P.W.2 contacted the first accused to get the patta, that the defence witnesses have attributed motive against one Ramasamy, who is a sand quarry owner and the village people for cutting karuvelam trees and all the defence witnesses have stated that the occurrence alleged by the prosecution never took place, that neither P.W.1 nor P.W.2 conducted investigation as to the place where the bribe money was found available, that the defence has taken a specific stand that while the first accused was taking rest in the said room, P.W.2 threw the money inside the office, that the second accused has been assaulted by the police and directed him to take the money from the floor and also compelled the first accused to count the money, that P.W.7 in whose favour patta transfer was sought for, has not deposed that the accused had demanded illegal gratification, that since the prosecution has not proved the foundational facts, the question of drawing presumption under Section 20 of the Prevention of Corruption Act does not arise and that the learned Special Judge, without considering the above material aspects and without taking note of the defence evidence, has proceeded to convict the accused in a mechanical fashion and that therefore, the impugned conviction is liable to be interfered with.
13. The learned Counsel for the second accused would submit that there is no material to show that the second accused instigated the first accused to demand bribe from P.W.2 and the prosecution has not proved that the second accused intentionally aided the first accused and thereby the prosecution failed to prove the charge under Section 109 I.P.C., that P.W.2 has categorically deposed that the second accused was not present at the time of alleged first and second demand and even on the date of occurrence the second accused came to the scene only after the acceptance and as such, he has no knowledge about the occurrence and the bribe amount, that there are material contradictions between the evidence of P.W.2 and P.W.4 regarding the possession and recovery of tainted money, that P.W.2 stated that the first accused met three times prior to the date of occurrence, but not the second accused that neither the complainant nor the prosecution witnesses stated anything incriminating against the second accused that he abetted the first accused to commit the offence punishable under the Prevention of Corruption Act, that there are several infirmities and lacuna in the prosecution and the guilt of the second accused is not at all proved by the prosecution from any angle and that the reasons given by the trial Court in convicting the second accused is unreasonable and not in conformity with law.
14. The learned Additional Public Prosecutor appearing for the respondent would submit that P.W.2 – defacto complainant has clearly narrated all the events from the beginning, that he deposed about the demands made earlier and the demand made on 30.09.2005, that P.W.2 has categorically stated that the first accused received the bribe amount from him and gave it to the second accused, who in turn counted the same and kept in his shirt pocket, that P.W.3 who was present on 23.09.2005 in the office of the first accused has stated about the demand made by the first accused and subsequent to his request reduction of the bribe amount from Rs.1,500/- to Rs.800/-, that P.W.4 – official witness and P.W.5 – Revenue Inspector have deposed what had happened during the enquiry by P.W.11, conducting of phenolphthalein test, recovery of tainted money and preparation of recovery mahazar, that the evidence of P.W.2, P.W.3, P.W.4, P.W.5 and P.W.11 would go to prove the demand and acceptance and also the recovery of bribe amount from the accused, that P.W.10 – scientific officer deposed about the conducting of test on the solutions and detection of phenolphthalein and sodium carbonate in all four bottles and issuance of report under Ex.P.5 and that since the prosecution through the above evidence has proved that the accused received illegal gratification from P.W.2, the Court can draw legal presumption under Section 20 of the Prevention of Corruption Act.
15. The learned Additional Public Prosecutor would further submit that P.W.4 – official witness, P.W.5-Revenue Inspector, P.W.11-Investigation officer, deposed about the conduct of phenolphthalein test on the hands of the accused and recovery of bribe amount, that P.W.5, who is the superior officer to both the accused had no animosity against them and corroborates the evidence of P.W.4 with regard to the recovery proceedings. He would further submit that P.W.4 and P.W.11 categorically deposed that when they disclosed their identity to the first accused, he was found perplexed and the said factum of perplexion is a sound material in drawing inference about the receipt of money and that by itself is relevant and admissible in evidence under Section 8 of the Indian Evidence Act. He would further submit that the evidence of D.W.1 to D.W.4 are mutually contradictory, not trustworthy and unbelievable, that the first accused has taken a plea that P.W.2 and P.W.3 foisted the above case with the assistance of one Malarmangai Lorry owner Ramasamy due to some previous motive, that D.W.1 to D.W.3 have not stated anything about the version of the accused that P.W.2 and P.W.3 were employed under the said Ramasamy, that though the first accused in his evidence had taken a stand that he never kept his records and run his office at Muthanendal, Revenue Inspector's office cum residence, P.W.5 – Revenue Inspector categorically deposed that 10 days before the occurrence, the first accused started to run his office at the office cum residence of Revenue Inspector, Muthanendal.
16. The learned Additional Public Prosecutor would further submit that though the defence has taken a stand that there are certain discrepancies between the evidence of P.W.2, P.W.3 and P.W.4, it is important to notice that P.W.1 was examined in chief on 17.06.2014 after the lapse of 7 years from the occurrence, that the evidence of P.W.3 and P.W.4 were also recorded after the lapse of 7 years, that the minor discrepancies in the evidence of trap witnesses occurred due to the long period of 7 years having been passed, cannot be given any weightage, that the defence of the first accused that on 30.09.2005 while he was sleeping in the Revenue Inspector's office at Muthanendal, P.W.5 came there and planted the bribe amount in his room, but the said plea is an invented theory to escape from the clutches of law and that the accused did not come forward to offer such explanation at the earliest point of time. He would further submit that the second accused has taken a stand that his name was not mentioned in the complaint and F.I.R, but it is the clear case of prosecution that on 30.09.2005 when P.W.2 met the first accused at his office at Muthanendal, the first accused reiterated his demand and accepted Rs.800/- as bribe in the presence of official witness and handed over the same to the second accused, who in turn, knowing the fact very well that it was a bribe amount, received the same, counted and kept in his possession.
17. Regarding the plea of defective charge, the learned Additional Public Prosecutor would submit that P.W.2 categorically deposed about the demand of bribe by the first accused reiterating the contentions in Ex.P.2 statement, that the cross-examination made by the first accused side and the evidence adduced by him as D.W.4 clearly established that the first appellant was fully aware of the nature of the case projected by the prosecution and participated in the entire proceedings, that there was no prejudice caused to the first accused and that the conviction cannot be set aside on the ground of defective or improper charge as contemplated under Section 464 Cr.P.C. He would further submit that P.W.1 – sanctioning authority categorically deposed that he applied his mind and arrived at subjective satisfaction and accorded his sanction and that even assuming that there is any error or irregularity in the sanction, conviction shall not be reversed or altered on the ground of absence of or any error, omission or irregularity n the sanction required as contemplated under Section 19 of the Prevention of Corruption Act and the learned Special Judge rightly appreciating the evidence available on record, has come to a decision that the prosecution has proved its charges against the accused and that therefore, the same does not warrant any interference.
18. Let us take up the technical objections first. The learned Counsel for the first accused would submit that P.W.1 – Sanctioning Authority gave evidence that he perused all the documents including the accused's statement, but there is no such statement of the first accused. The learned Counsel for the second accused would submit that P.W.1 has specifically admitted that after discussion with the Investigating Officer, he accorded sanction. The learned Counsel for the accused would submit that in view of the above evidence of P.W.1, it is clear that P.W.1 has not applied his mind and accorded sanction in a mechanical fashion and that therefore, the defective sanction vitiates the entire proceedings.
19. The learned Additional Public Prosecutor would submit that P.W.1 in his evidence has stated that he consulted the Investigating Officer, but he specifically stated that he applied his mind and on arriving subjective satisfaction, accorded sanction and a cursory perusal of the evidence of P.W.1 would clearly indicate that after going through the entire materials placed before him, he accorded sanction, after applying his mind.
20. At this juncture, it is necessary to refer a decision of the Hon'ble Supreme Court in C.S.Krishnamurthy Vs. State of Karnataka reported in (2005)4 SCC 81, wherein the Hon'ble Apex Court has specifically held that in case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order and the relevant passages are extracted hereunder:
“9. Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the report of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified.
10. In the case of Balaram Swain V. State of Orissa reported in 1991 Supp. (1) SCC 510 the High Court reversed the finding of the trial court that the sanctioning authority has not applied its mind on the materials placed before him. It was observed in para 9 that the sanctioning authority , namely, PW 4 has stated on oath that he perused the consolidated report of the vigilance and fully applied his mind and thereafter issued the sanction. The admission of PW-7 in that case that the entire record was not looked into, was held to be not fatal to the sanction. The finding of the High Court was affirmed by Apex Court. Likewise, P.W.40, i.e. the sanctioning authority in the present case, has gone through the report of the Superintendent of Police and after discussing the matter with the legal department has accorded sanction. That is enough to show that there is due application of mind in the present case.”
21. As rightly pointed out by the learned counsel for the accused, P.W.1 admitted discussing the case with the Deputy Superintendent of Police, Vigilance and Anticorruption, as the produced documents were copies. However, the Additional Public Prosecutor correctly noted P.W.1 stated he accorded sanction after perusing all documents and getting full satisfaction, not just based on the discussion. Ex.P.1 sanction order reflects the Sanctioning Authority's satisfaction. As observed by the Hon'ble Apex Court, the examination of the Sanctioning Authority is formal, and P.W.1 gave evidence of his satisfaction and granting of sanction before the trial Court.
22. As rightly contended by the learned Additional Public Prosecutor, even if there is an error, omission or irregularity in granting sanction, Section 19 of the Prevention of Corruption Act and Section 465 Cr.P.C., contemplate that conviction cannot be reversed or altered, unless a failure justice is shown. Even if the defence's mistakes are evident, the accused must establish failure of justice; mere mistakes do not invalidate the sanction or vitiate the conviction.
23. The learned Counsel for the accused would contend that there is no specific charge for the demand and the two charges which were framed by the trial Court were only referring the factum of alleged acceptance, that the charges do not contain any date, place or other particulars regarding the demands alleged by the complainant and that since there is no charge for demand, the evidence adduced cannot be looked into and that even assuming that there was a charge for acceptance and recovery and evidence was adduced, charges under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act cannot be sustained in the absence of any proof for demand.
24. No doubt, as rightly pointed out by the learned Counsel for the accused, the trial Court has not framed any specific charge with regard to demand, but while questioning the accused at the time of framing of charges, the demands alleged by the prosecution were referred and it is necessary to refer the exact questioning made.
25. As rightly pointed out by the learned Additional Public Prosecutor, P.W.2 and P.W.3 were cross-examined with regard to the demands alleged by the prosecution. Moreover, the first accused as D.W.4 gave evidence denying and disputing the demands alleged by the prosecution. Considering the above, it is clearly evident that the first accused had participated in the trial, fully knowing the nature of the charges, which includes the demand charge.
26. The learned Additional Public Prosecutor would rely on a Constitutional Bench judgment in Willie (William) Slaney Vs. State of Madhya Pradesh reported in (1955)2 SCC 340, wherein it was specifically held that an omission to frame a charge as well as irregularities, errors and omission in a charge are all irregularities that do not vitiate or invalidate a conviction unless there is prejudice and the relevant portion is extracted hereunder:
“We agree that a man must know what offence he is being tried for and that he must be told in clear and unambiguous terms and that it must all be "explained to him " so that he really understands (section 271(1) in sessions trials, section 255(1) in warrant cases) but to say that a technical jargon of words whose significance no man not trained to the law can grasp or -follow affords him greater protection or assistance than the informing and the explain- ing that are the substance of the matter, is to base on fanciful theory wholly divorced from practical reality; and the same applies to the vast bulk of jurors who attend our courts. They are none the wiser because of a formal charge except in a vague and general way that is of no practical account. The essence of the matter is not a technical formula of words but the reality. Was he told? Was it explained to him? Did he understand? Was it done in a fair way?”
27. It is also necessary to refer a decision of in Kammari Brahmaiah and others Vs. Public Prosecutor, High Court of A.P., reported in (1999)2 SCC 522, wherein the Hon'ble Supreme Court, while considering the scope of Section 464 Cr.P.C., has observed as follows:
“Section 464 is in mandatory terms and specifically provides what is to be done in cases where a charge is not framed or there is an error, omission or irregularity in framing of the charge. From the unequivocal terms of the section, it can be stated that a finding, sentence or order could be set aside only in those cases where the facts are such that no valid charge could be preferred against the accused in respect of the facts proved. Secondly, if the facts are such that a charge could be framed and yet it is not framed but no failure of justice has in fact been occasioned thereby, the finding, sentence or order of the court of competent jurisdiction is not to be set aside on that ground. Thirdly, if there is failure of justice occasioned by not framing of the charge or in case of an error, omission or irregularity in the charge, retrial of the case is to be directed under subsection( 2).”
28. The Hon'ble Apex Court has reiterated that non-framing of a charge doesn't vitiate conviction if no prejudice is caused to the accused. A trial should be fair to the accused, State, and public. The Code of Criminal Procedure is a procedural law aimed at furthering justice, not frustrating it with technicalities. Here, the first accused was aware of the charges and participated in the trial. With no prejudice or failure of justice, the defective charge doesn't vitiate the conviction.
29. Before proceeding, it is necessary to refer Section 20 of the Prevention of Corruption Act, which creates a legal presumption that if a public servant accepts an undue advantage, it was for improperly or dishonestly performing their duty. Once the prosecution proves the bribe was accepted, the Court presumes it was accepted as a motive or reward, and it's up to the accused to rebut this presumption and prove innocence.
30. No doubt, the above presumption is not absolute and the accused public servant can very well prove that the undue advantage was not accepted as bribe. It is pertinent to note that the above presumption is trigged after proving that the public servant accepted or ready to accept undue advantage. At this juncture, it is necessary to refer a decision of the Hon'ble Supreme Court in Neeraj Dutta Vs. State (Government of NCT of Delhi) reported in (2023)4 SCC 731, wherein three Judges Bench of the Hon'ble Apex Court summarised the principles and it is relevant to extract the same:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of Criminal Appeal No.1669 of 2009 illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is Criminal Appeal No.1669 of 2009 a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1) (d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said Criminal Appeal No.1669 of 2009 presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.”
31. Now turning to the case of demand, acceptance and recovery of tainted money, the learned Counsel for the accused would submit that the prosecution has referred that the demand was made only on 30.09.2005 and there was no reference to the eaerlier demands and that the evidence of P.W.2 complainant is not clear about the demand theory. But as rightly contended by the learned Additional Public Prosecutor, P.W.2 in his evidence referred about the demands made earlier thrice and the demand made on 30.09.2005 and is necessary to refer the evidence of P.W.2 for better appreciation:
37. P.W.11, the Trap Laying Officer corroborated P.W.5's account of the phenolphthalein test and recovery of tainted money from the accused.
38. As rightly contended by the learned counsel for the accused, there existed contradictions between P.W.2, P.W.3, P.W.4, P.W.5, and P.W.11's evidence on demand, acceptance, and recovery of tainted money. However, as rightly contended by the learned Additional Public Prosecutor, the incident was on 30.09.2005. P.W.2, an illiterate coolie from a village, was examined in chief on 17.06.2014 and cross-examined on 08.10.2014. P.W.4 and P.W.5 were examined in chief and cross-examined on 01.12.2015. P.W.2 and P.W.4 testified nearly 9-10 years post-incident, with P.W.4 being 61 and retired.
39. As rightly contended by the learned Additional Public Prosecutor, the contradictions are natural, given the witnesses were examined years later. Moreover, the contradictions elicited and relied on by the defence are not significant enough to doubt the case of the prosecution.
40. The Hon'ble Supreme Court in Jai Prakash and four others Vs. State of U.P., and three others reported in (2020)17 SCC 632, has specifically observed that witnesses who have deposed in the Court after considerable lapse of time, of course, cannot be expected to have photographic memory of the case and that the minor discrepancies not touching upon the core of the prosecution case would not affect the credibility of the witnesses or the prosecution case.
41. In the present case, the evidence of P.W.2 with regard to demand and acceptance of tainted money is cogent and consistent. As already pointed out, P.W.4 supported P.W.2's account of demand and acceptance of tainted money on 30.09.2005. P.W.5 and P.w.11 corroborated the phenolphthalein test and recovery of tainted money from the accused.
42. The learned Counsel for the first accused would contend that there is ambiguity on which hand the first accused received the bribe. But according to the prosecution, both hands turned positive in the phenolphthalein test. As rightly pointed out by the learned Additional Public Prosecutor, P.W.11 explained that after introducing himself and the official witnesses, the first accused joined his hands (nuz;L iffshy; Brh;j;J Fk;gpl;lhh;), likely transferring the powder to both hands, explaining the positive result.
43. The learned Counsel for the first accused would rely on a decision of the Hon'ble Supreme Court in Munshi Prasad and others Vs. State of Bihar in Crl.A.No.s491-492 of 2000, dated 10.10.2001, wherein it was held that the defence witnesses are entitled to equal respect and treatment as that of prosecution. The learned Senior Counsel would also rely on a decision of the Hon'ble Supreme Court in P.Somaraju Vs. State of Andhra Pradesh reported in 2025 INSC 1263 wherein also it was held that the defence theory must be given equal importance to that of prosecution.
44. The defence of the first accused is that he was running his Village Administrative Office at Kirungakottai and not in the office cum residence of Revenue Inspector, Muthanendal, that he used to come to Muthanendal for taking lunch in a hotel and used to take rest for sometime in the office cum residence of Revenue Inspector, Muthanendal, that while the first accused was taking rest, on 30.09.2005 P.W.2 threw money inside the office room and no incident was occurred as alleged by the prosecution, that one Ramasamy of Malarmangai lorry owner had previous enmity with him, as he opposed for taking more sand than the licenced limit and since the said Ramasamy and his men had attacked the first accused, the Revenue Inspector and others, they were constrained to lodge a police complaint and on that basis, Ex.D.1 – F.I.R., came to be registered.
45. It is the further case of the first accused that since the first accused called for tender with regard to karuvela trees, the same was opposed by Thuthikulam village people including P.W.3 Pandi and some other person not belonging to Thuthikulam Village has become the successful auctioner and therefore, P.W.3 had enmity with the first accused and that the said Ramasamy had set up P.W.2 and P.W.3 who were his workers and lodged the above false complaint. To prove the said defence, he examined D.W.1 to D.W.3.
46. It is the specific case of the first accused that Vigilance police directed the second accused to take the alleged tainted money available on the floor of that room and since he refused, they assaulted the second accused and compelled to take that amount and that they have also threatened the first accused to receive that amount and count the notes. P.W.5 – Revenue Inspector in whose office cum residence, the acceptance and recovery of tainted money was done, would specifically say that the first accused was running his Village Administrative Office in his campus for ten days. The defence witness – D.W.3 in crossexamination would admit that some Village Administrative Officers were running their office in the office campus of Revenue Inspector, Muthanendal. D.W.2 – a retired Village Assistant would only say that the second accused was assaulted and threatened to take the tainted money and hence, he had taken the amount and that the first accused was directed to count the amount and since he refused, he was also threatened.
47. D.W.1 and D.W.3 did not corroborate the alleged attack on the second accused or threats to the accused. P.W.4, an official witness with no apparent motive, and P.W.5, a superior officer to both accusedat that time, supported the prosecution. P.W.5 witnessed the proceedings, and both P.W.4 and P.W.5 testified about the phenolphthalein test and recovery of tainted money. No motive was attributed to P.W.4 and P.W.5. by the accused, and no such suggestion was made either.
48. Even according to the first accused, he was not the complainant in Ex.D.1 – F.I.R., and the complaint was lodged by the Revenue Inspector. There is no evidence to show that he had taken action against the said Ramasamy. Moreover, though the defence has alleged that P.W.2 and P.W.3 were working under the said Ramasamy, which was specifically disputed by P.W.2 and P.W.3, no evidence was adduced in this regard. The first accused has not produced any material to show that P.W.2 and P.W.3 were working under the said Ramasamy and were acting at the instigation of the said Ramasamy.
49. Admittedly, Ex.D.1 F.I.R., was registered on 26.03.2012 and it is not the case of the first accused that the charge sheet was filed against the said Ramasamy and others and except Ex.D.1 – F.I.R., the first accused has not produced any iota of material to connect the said Ramasamy with him or with the present case. On considering the evidence of the defence, as rightly contended by the learned Additional Public Prosecutor, the defence theory is hard to believe. Though the accused alleged attack and threatens by the Vigilance officers, they did not complain to higher officials or police. D.W.1 and D.W.3 claimed no phenolphthalein test was conducted, but as already pointed out, official witnesses P.W.4 and P.W.5 contradicted this, testifying about the test.
50. As rightly contended by the learned Additional Public Prosecutor, the second accused received and counted the bribe, threw it under a chair when Vigilance officials entered, and later showed them its location and that the above makes it a discovery of evidence, admissible under Section 27 of the Indian Evidence Act.
51. Admittedly, no confession was allegedly taken from the second accused. Even if Section 27 doesn't apply, Section 8 can be invoked. It is necessary to refer the decision of our Hon'ble Supreme Court in Siju Kurian Vs. State of Karnataka reported in 2023 LiveLaw SC 338, where the accused's act of pointing out the burial site was deemed relevant under Section 8. Similarly, the second accused's act of showing where he threw the bribe is relevant under Section 8 of the Indian Evidence Act.
52. The learned Counsel for the first accused would rely on a decision of the Hon'ble Supreme Court in T.Subramanian Vs. State of Tamil Nadu reported in 2006(1) SCC 401,wherein the Hon'ble Apex Court held that the appellant's immediate explanation raised doubts about the bribe. Unlike that case, the first accused did not give an explanation to P.W.11 and his team immediately after the phenolphthalein test and recovery of tainted money.
53. It is not in dispute that after arresting the accused, they were released on bail on medical ground. It is not the case of the accused that they immediately sent a letter or notice to the respondent police explaining their version and theory now canvassed by them. The learned Counsel for the accused would rely on the evidence of P.W.7, wife of P.W.2 and submit that she stated that she did not meet the accused or give a petition. It is not the case of the prosecution that P.W.7 met the accused and requested for patta transfer, but on the other hand, P.W.2 – husband of P.W.7 alone met the first accused and produced the copies of documents with request for patta transfer. P.W.7 in chief examination would say categorically that she directed her husband to approach Kirungakottai Village Administrative Officer for patta transfer.
54. The learned Additional Public Prosecutor would submit that the respondent police conducted phenolphthalein test as required under Rule 46(1) of Vigilance Manual and test conducted on the hands of both accused were positive, that P.W.10- Scientific Officer certified that the solutions contain phenolphthalein and sodium carbonate and that the said results showed both accused handled the tainted money.
55. The learned Counsel for the second accused would submit that without seizing the currency notes, the phenolphthalein test conducted was illegal. The learned Additional Public Prosecutor would submit that only after confirmation about the handling of tainted currency notes by conducting phenolphthalein test, recovery will commence. It is necessary to refer Rule 46(1) of the Vigilance Manual, which is extracted hereunder:
“46. Phenolphthalein test:
(1) Before recovering the tainted money or other articles in the course of trap proceedings, what is known as “Phenolphthalein Test” should invariably be conducted the fingers of both hands of the Accused Officer and on other items such as his pant/shirt pocket, dhoti, etc., with which the notes/articles are known to have come into contact. It will be a corroborative piece of evidence to establish the acceptance of tainted money by the Accused Officer.”
56. As rightly pointed out by the learned Additional Public Prosecutor, the above Rule contemplates that the phenolphthalein test should be conducted before recovering the tainted money or other articles in the course of trap proceedings and that the result of the said report will be a corroborative piece of evidence to establish the acceptance of the tainted money by the accused officer.
57. The learned Counsel for the second accused would submit that though the second accused was connected with the present case with the help of Section 109 I.P.C., the prosecution has not produced any material to show that the second accused instigated the first accused to demand bribe from P.W.2 or that the second accused had intentionally aided the first accused. He would further submit that even according to the prosecution, there was no demand from the second accused and he was not present at the time of demands allegedly made.
58. No doubt, even according to the prosecution, the second accused was not present at the time of earlier demands, but according to P.W.2 when he gave the amount to the first accused, he received the same and gave it to the second accused, who was very much available at that time. As rightly contended by the learned additional Public Prosecutor, it is evident that the second accused after seeing the respondent police party threw the amount underneath the chair and that would go to show that he was aware about the nature of the amount received.
59. As already pointed out, P.W.4, P.W.5 and P.W.11 would say that the second accused received the amount knowing fully that it was a bribe amount received by the first accused and when he was asked about the bribe amount, he produced the amount of Rs.800/- under the chair. On considering the evidence adduced by the prosecution, it can easily be inferred that they have shown the foundational facts required for drawing a presumption under Section 20 of the Prevention of Corruption Act, but the evidence adduced by the defence is not sufficient to rebut this presumption. As rightly contended by the learned Additional Public Prosecutor, the prosecution's evidence, including the phenolphthalein test results, supports their case and the accused didn't provide a credible explanation for the money.
60. Considering the above, this Court concludes that the prosecution has proved the charges under Section 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act against the first accused and under Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act r/w 109 I.P.C. as against the second accused. The second accused passed away during the appeal and his legal representatives were impleaded, since his death benefits were not disturbed. According to the first accused he is aged about 70 years.
61. Considering the facts and circumstances, age of the first accused and also the fact that the F.I.R., was registered in the year 2005, this Court is inclined to reduce the sentence awarded by the trial Court and the sentence of three years each for the offence under Section 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act is modified to one year Rigorous Imprisonment each.
62. In the result, the Criminal Appeals are partly allowed and the conviction passed against the appellant / first accused for the offences under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and and the conviction passed against the appellant/second accused for the offence under Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act r/w 109 I.P.C., in Spl.C.C.No.17 of 2014, on the file of the Special Court for the Prevention of Corruption Act cases, Sivagangai, dated 09.03.2017 is confirmed and the sentence is modified from three years Rigorous Imprisonment to one year Rigorous Imprisonment for each offence and the sentences are to run concurrently. The judgment with regard to fine amount is hereby confirmed.
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