P. Subburaj v. State

Bail SlipBail is granted to the Appellant/ Accused viz., P. Subbu Raj asper order in Crl.M.P.NO.6180/1998 in Crl.Appeal No.673/1998 dated27.8.1998 dated 27.8.1998 on the file of this High Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 23.12.2008CoramThe Hon’ble Mr.Justice M.JEYAPAULCriminal Appeal No.673 of 1998P.SubburajAppellant/ Accusedvs. State: Inspector of Police,C.B.I. (Crime No.R.C.71/87)Shastri Bhavan, Chennai-6.Respondent/ ComplainantPrayer:- Criminal Appeal against the judgment and sentence dated31.7.1998 made in C.C.No.18 of 1997 on the file of the PrincipalSpecial Judge for CBI Cases, City Civil Court Buildings, Madras.For appellant : Mr.Gopinath, Senior Counsel for M/s.K.SelvaranganFor respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBI.JUDGMENTThe accused P.Subburaj stood charged with offences punishableunder old section 161 of the Indian Penal Code and under section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947.The Trial ended in his conviction under those two penal provisions.He was sentenced to six months rigorous imprisonment for offenceunder section 161 of the Indian Penal Code and rigorous imprisonmentfor six months and to pay fine of Rs.500/= for offence under section5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947.Aggrieved by the above verdict of the Trial Court, the present https://hcservices.ecourts.gov.in/hcservices/ appeal has been preferred by the accused. Case of the prosecution:-2. The accused P.Subburaj was functioning as Junior Assistant inthe office of the Director of Accounts (Tamilnadu Postal Circle),Commander-in-Chief Road, Chennai. The complainant C.Natarajan (PW2)is a resident of Kadapperi Village in North Arcot District. He wasbadly in need of a job. He approached the accused P.Subburaj on6.9.1987 through his friend to secure a job for him. The accusedassured PW2 that he would secure a Nominal Muster Roll (NMR) job inthe office of the Public Works Department at Vellore. 3. On 7.9.1987, as per the instruction of the accused, PW2 methim at Vellore. The accused, having requested PW2 to remain outsidethe office of the Public Works Department, went inside the officeand came out and informed PW2 that appointment order would be issuedto him in a couple of days. Even after lapse of twenty days, thecomplainant did not receive any appointment order. 4. The complainant met the accused on 4.10.1987. The accuseddemanded illegal gratification of Rs.4000/= from PW2 for arrangingto despatch the order of appointment to him. PW2 expressed hisinability to meet such a demand. Again on 12.10.1987, PW2 met theaccused at Chennai. The accused demanded a sum of Rs.500/= to bepaid to him in a couple of days and the balance after receipt of theorder of appointment. 5. PW2 was not willing to pay the gratification of Rs.500/=demanded by the accused to secure an order of appointment. Heproceeded to the office of the Central Bureau of Investigation atChennai and gave a complaint, Ex.P2 to the Superintendent of Police,Central Bureau of Investigation, Chennai on 13.10.1987. TheInspector of Police, Mr.V.A.Mohan, PW5 registered a case inR.C.No.71 of 1987 based on the complaint given by PW2 under section161 of the Indian Penal Code. 6. The independent witnesses Mr.Shankar and Mr.Somasundaram, PW3were secured by PW5. PW3 is working as a Lower Division Clerk atthe Regional Office of the Textile Commissioner, Shastri Bhavan,Chennai. 7. PW2 produced the trap amount of Rs.500/= as directed by PW5.A demonstration with the solution of Sodium Carbonate was done byPW5 for the aforesaid two witnesses. The trap currency notes weresmeared with Phenolphthalein. On 13.10.1987 at about 5.10 pm, PW5,accompanied by the police party and PW2 and other trap witnesses, https://hcservices.ecourts.gov.in/hcservices/ proceeded to the office of the accused at Commander-in-Chief Road,Chennai 600 105. P.Ws.2 and 3 went inside the office of theaccused. Both of them came along with the accused to shamianarestaurant situate on the opposite side of the office in Commander-in-Chief Road. Pre-arranged signal was given by PW2. PW5 wentinside the restaurant along with the police party. The accusedstarted sweating. Mr.Shahul Hameed, Manager of the restaurant, PW4was informed of the presence of the police sleuth in his premises. 8. Two separate solutions of Sodium Carbonate were prepared. Theaccused dipped his left and right hand fingers separately in thesolutions as directed. The solutions turned pink in colour. Thesolutions, poured in two different bottles, M.Os.2 and 3, werepacked and labelled. The currency notes of five numbers of hundredrupee notes accepted by the accused from the complainant were markedas M.O.1 series. The left side inner pocket of the shirt of theaccused was dipped in a separate Sodium Carbonate solution preparedin a Tumbler. It also turned pink. It was preserved in twobottles, M.Os.4 and 5. The accused was taken to his room at EllisRoad, Anna Salai, Chennai from where recommendation letters wererecovered under search list, Ex.P6. A bunch of applications, Ex.P9series were also recovered from the room of the accused. Theaccused, who was arrested by PW5, was released on bail on the verysame day. The Inspector of Police Mr.Ramesh, PW6 took up theinvestigation and having examined witnesses, laid final report undersection 161 of the Indian Penal Code and section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947. 9. Disbelieving the version of the accused P.Subburaj, the TrialCourt convicted and sentenced him as stated supra. Receipt of Rs.500/= by the accused from PW2:-10. PW2 has categorically stated that pursuant to the demand ofRs.500/= towards initial payment, he approached the Central Bureauof Investigation, who laid the trap and the trap money of Rs.500/=(M.O.1 series) was received by the accused. The evidence of PW2 wasnot shaken inspite of the searching cross-examination done by theaccused. No motive was also attributed to him for coming out withsuch a version as against the accused. A villager, far away fromthe City of Chennai, could not have had any grouse as against theaccused, who was employed in a Central Government Department andstationed in Chennai. 11. Mr.K.Somasundaram is found to be an official attached to theRegional Office of the Textile Commissioner, Shastri Bhavan,Chennai. He gives a graphic account of the demand of a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.500/= by the accused from PW2 and the payment of the same by PW2to the accused. The occurrence, which led to the arrest of theaccused, took place in the shop of Shahul Hameed, PW4. The SodiumCarbonate solutions, M.Os.2 to 4 containing pink colour, in thebackground of the Chemical Analysis report, Ex.P12 would establishthat the amount, M.O.1 series recovered from the accused was theamount used by the respondent police for the purpose of trapping theaccused. The prosecution has established beyond reasonable doubtthat PW2 paid a sum of Rs.500/= as initial payment as per the demandmade by the accused. The learned Senior Counsel appearing for theaccused/appellant did not advert to the payment of R.500/= by PW2 tothe accused in the trap laid by the respondent police. The TrialCourt has rightly come to the conclusion that in the trap laid bythe respondent police, PW2, on demand, paid a sum of Rs.500/= andthe same was accepted by the accused. Offence under section 161 of the Indian Penal Code:-12. Learned Senior Counsel appearing for the appellant wouldvehemently submit that old section 161 of the Indian Penal Code isnot attracted in the instant case as the accused had not receivedthe said amount in his capacity as public servant. It is hisfurther submission that even as per the case of the prosecution, PW2believed that the accused would use his political clout and secure ajob for him and therefore, PW2 parted with a sum of Rs.500/= to himas advance. The visiting cards, Ex.P8 series would go to establishthat the accused had acted in his individual capacity while holdingout a promise that he would secure a job for PW2 and received a sumof Rs.500/= from him, he would further contend. 13. Learned Special Public Prosecutor for CBI Cases would submitthat the last limb of section 161 of the Indian Penal Code wouldmake it clear that when a public servant accepts gratification as areward for rendering a service with any State Government or with anypublic servant, he is liable to be punished for offence under theold section 161 of the Indian Penal Code. He has further submittedthat the accused, being a public servant, attempted to influence aGovernment official in the State Government and in the said process,he had received initial payment of Rs.500/= from the accused.Further, he would submit that there arises a presumption undersection 4 of the Prevent of Corruption Act, 1947 that the amountaccepted by the accused is nothing but a gratification as a rewardas mentioned in section 161 of the Indian Penal Code. Therefore, hewould submit that the Trial Court has rightly convicted the accusedfor offence under section 161 of the Indian Penal Code. 14. Old Section 161 of the Indian Penal Code reads as follows:-"Public Servant taking gratification other than https://hcservices.ecourts.gov.in/hcservices/ legal remuneration in respect of official act –Whoever, being or expecting to be a publicservant, accepts or obtains, or agrees toaccept, or attempts to obtain from any person,for himself or for any other person, anygratification whatever, other than legalremuneration, as a motive or reward for doing orforbearing to do any official act or for showingor forbearing to show, in exercise of hisofficial functions, favour or disfavour to anyperson, with the Central or any State Governmentor Parliament or the Legislature of any State orwith any local authority, Corporation orGovernment Company referred to in Section 21 orwith any public servant, as such, shall bepunished with imprisonment of either descriptionfor a term which may extend to three years,orwith fine, or with both."15. To attract the offence under old section 161 of the IndianPenal Code, the following ingredients will have to be satisfied:-1. The accused shall be a public servant or heshould be expecting to be appointed as publicservant;2. He should accept or agree to accept from anyperson any gratification whatsoever;3. The said gratification should have noconnection with his legal remuneration;4. The said gratification should have beenaccepted or obtained as a motive or reward; and5. Such gratification should have been receiveda) for doing or purporting to do any officialact; orb) for showing or forbearing to show, in exerciseof his official functions, favour or disfavour toany person orc) for rendering any service or disservice to anyperson with the Central or any State Governmentor with any local authority or Corporation orGovernment Company or with any public servant.16. The prosecution pitches the third limb rather than the firstand second limbs of section 161 of the Indian Penal Code. It is notthe case of the prosecution that gratification was received by theaccused to do any official act nor is it the case of the prosecutionthat the accused received any bribe to do any favour to PW2 in https://hcservices.ecourts.gov.in/hcservices/ exercise of his official function. The prosecution comes out with acase that the accused approached a public servant in the office ofthe Public Works Department at Vellore for doing service to theaccused in his capacity as public servant. 17. If the prosecution fails to establish that the accused hadnot acted in his capacity as a public servant, while receiving a sumof Rs.500/= being the trap amount, the charge under section 161 ofthe Indian Penal Code levelled as against the accused would fall tothe ground. There is evidence galore that the accused went alongwith PW2 to the office of the Public Works Department Vellore andcame out and informed PW2 that the order of appointment was readyand the same would be despatched in a couple of days. 18. Firstly, PW2 would say that he was informed that the accusedhad political clout and therefore, he would secure a job for him.It is not his version that he was informed by his acquaintance thatthe accused, being a public servant, had the capacity to wieldinfluence. 19. The prosecution also failed to examine any of the publicservants in the office of the Public Works Department, Vellore tobring home the point that the accused influenced anybody in thatoffice in his capacity as public servant. The various visitingcards, Ex.P8 series would strengthen the case of the accused that hehad not acted in his capacity as public servant while holding out apromise to PW2 that he would secure a job for him and also receivingthe amount of Rs.500/= from him. 20. In a similar case in S.KRISHNAMURTHY (1960 MLJR (Criminal)248), this court, relying upon the ratio laid down by Wanchoo, J inSTATE OF ADJMER (NOW RAJASTHAN) v. SHIVJI LAL ((1959) MLJ (CRL.)589), held that the mere fact that a person takes money in order toget a job for another person somewhere would not by itselfnecessarily be an offence under section 161, Indian Penal Codeunless all the ingredients of that section are made out. In otherwords, if the prosecution miserably fails to establish that theaccused accepted gratification in his capacity as public servantwhile doing some services to a person with the public servant, theaccused cannot be hauled up for offence under section 161 of theIndian Penal Code. 21. In DALPAT SINGH v. STATE OF RAJASTHAN (AIR 1969 SC 17), theaccused Police Officer extorted money from the villagers notintending to show any official favour to those persons. Thevillagers too did not expect any official favour from the accused.The payments were made solely with a view to avoid being ill-treatedor harassed by the police officers. It was held therein by the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court that in the absence of an element of motive of aparticular kind referred to in section 161 of the Indian Penal Code,the facts complained of do not constitute offence under section 161of the Indian Penal Code. To raise presumption under section 4 ofthe Prevention of Corruption Act, 1947, the prosecution shouldprove, at the first instance, that the accused, being a publicservant, accepted gratification. 22. The learned Special Public Prosecutor for CBI cited theauthorities in V.D.JHINGAN v. STATE OF UTTAR PRADESH (AIR 1996 SC1762), MADHUKAR BHASKARRAO JOSHI v. STATE OF MAHARASHTRA ((2000) 8SCC 571) and STATE OF ANDHRA PRADESH v. R.JEEVARATNAM ((2004) 6 SCC488). 23. In all those three cases, it was established that theaccused, being a public servant, demanded bribe and received thesame for doing an official favour. In the instant case, nothing hasbeen shown by the prosecution that any official favour was shown bythe accused to anybody while receiving the sum of Rs.500/= from PW2.The materials on record would clinchingly show that the accused hadacted in his individual capacity and not as public servant.Presumption under section 4(1) of the Prevention of Corruption Act,1947 would be drawn only where the prosecution proves that theaccused, in his capacity as public servant, received bribe to doservice to a third party with a public servant. Therefore, theaforesaid three authorities pronounced by the Supreme Court do notapply to the facts and circumstances of this case. In view of theabove, the court comes to the conclusion that no case has been madeout as against the accused for offence under the old section 161 ofthe Indian Penal Code.Offence under section 5(1)(d) of the Prevention of Corruption Act,1947:-24. The learned Senior Counsel appearing for the accused wouldvehemently submit that nothing is on record to show that the accusedabused his position as a public servant to attract the offence undersection 5(1)(d) of the Prevention of Corruption Act, 1947. There ismaterial to show that the accused had acted in his individualcapacity and not as a public servant. Therefore, the offence undersection 5(1)(d) of the Prevention of Corruption Act, 1947 is notattracted to the facts and circumstances of the case, he wouldfurther submit. 25. The learned Special Public Prosecutor for CBI would contendthat the fact that the accused, being a public servant, approachedanother official working in the office of the Public WorksDepartment Vellore, would go to show that he had abused his positionas public servant, having holding out a promise to PW2 to secure a https://hcservices.ecourts.gov.in/hcservices/ job for him and received bribe of Rs.500/=. Therefore, he wouldcontend that the prosecution has established that the accusedcommitted an offence under section 5(1)(d) of the Prevention ofCorruption Act, 1947. 26. It is apposite to refer to section 5(1)(d) of the Preventionof Corruption Act, 1947 which reads as follows:-"5.Criminal misconduct in discharge of officialduty:- (1) A public servant is said to commit theoffence of criminal misconduct..........(d) if he, by corrupt or illegal means or byotherwise abusing his position as public servant,obtains for himself or for any other person anyvaluable thing or pecuniary advantage;"The following ingredients will have to be satisfied to attract theoffence:-(1) The accused shall be a public servant;(2)He should have abused his position as apublic servant;(3) He should have obtained for himself or forany other person any pecuniary advantage; and (4) such pecuniary advantage shall be taintedwith corrupt or illegal means or by otherwise.27. In the instant case, the prosecution has established thatthe accused was a public servant. He received a sum of Rs.500/=which was the trap money used by the respondent through PW2. Theprosecution should primarily establish that the public servantabused his position while obtaining pecuniary advantage. 28. As already pointed out, it is not the case of PW2 that heapproached the accused on being informed that he was wielding hisposition as public servant to secure a job. The consistent case ofPW2 is that the accused had political influence which would easilysecure him a job. The visiting cards seized and produced by theprosecution would also establish that the accused had politicalaffiliation. None of the officials from the office of the PublicWorks Department, Vellore was examined to show even remotely thatthe accused approached anyone of them in his capacity as publicservant or wielded influence abusing his position as public servant.Further, it is not as if the office of the Public Works Departmentor the officials working therein were controlled by the office ofthe Director of Accounts (Tamilnadu Postal Circle) wherein theaccused was working as Junior Assistant. Therefore, there is nomaterial to show that the accused misused his official position tomake an attempt to secure a job for PW2. https://hcservices.ecourts.gov.in/hcservices/

29. In Dalpat Singh's case referred to above, it has beencategorically held that extortion of amount from the villagers bythe police officers in the Rajasthan Armed Constabulary notintending to show any official favour to the villagers, would notconstitute an offence under section 5(1)(d) of the Prevention ofCorruption Act, 1947. 30. The learned Senior Counsel appearing for theaccused/appellant cited a ratio laid down down by the Supreme Courtin STATE OF GUJARAT V. M.P.DWIVEDI (1972 CRI.LJ 1247). That was acase where a Lecturer working in a Government College was appointedas a Examiner by the University. The charge as against him was thathe accepted gratification of Rs.500/= for showing favour to acandidate in the Physics Practical Examination. The Supreme Courthas held that the act was committed by the Lecturer of a GovernmentCollege when he was holding a different position which was not thatof a Government Servant. Therefore, receipt of gratification from astudent in his capacity as an Examiner in Gujarat University and notin his capacity as public servant would not amount to misusing hisofficial position as public servant as adumbrated under section 5(1)(d) of the Prevention of Corruption Act 1947, it has been declared. 31. Placing reliance upon the aforesaid ratio, the Supreme Courtin STATE BY SPECIAL POLICE ESTABLISHMENT v. D.KRISHNAMURTHY (1996SCC (CRI.) 102) has held that if abuse of the position as a publicservant is lacking in the prosecution case, the offence undersection 5(1)(d) of the Prevention of Corruption Act, 1947 would notbe attracted. 32. Relying upon the ratio laid down by the supreme Court in THESTATE OF GUJARAT v. MANSHANKAR PRABHASHANKAR DWIVEDI AND ANOTHER(1972 CRI.LJ 1247), the Andhra Pradesh High Court, in RAMAKRISHNARAO v. STATE (1981 MLJ 104), has held that collection of money fromthird parties by an employee of Port Trust promising them to secureshops in other Departments would not amount to abuse of his positionas public servant. It has been held therein that the said employeeof the Port Trust has acted in his individual capacity whilecollecting money holding out a promise to secure job in otherDepartments. 33. I am in respectful agreement with the authority pronouncedby the Andhra Pradesh High Court in the aforesaid case placingreliance upon the ratio laid down by the Supreme Court in THE STATEOF GUJARAT v. MANSHANKAR PRABHASHANKAR DWIVEDI AND ANOTHER (1972CRI.LJ 1247). https://hcservices.ecourts.gov.in/hcservices/

34. There is evidence galore to establish that the accused hasnot misused his position as Government servant but acted in hisindividual capacity. No evidence also is forthcoming from the sideof the prosecution to bring home the point that the accused everventured to misuse his position with the official of the PublicWorks Department, Vellore in order to extract money from PW2.Further, a close reading of section 4 of the Prevention ofCorruption Act, 1947 would reveal that no presumption can be raisedas adumbrated therein as far as offence under section 5(1)(d) ofthe Prevention of Corruption Act, 1947 is concerned. 35. In view of the above facts and circumstances, it is foundthat the Trial Court has misdirected itself in interpreting theingredients of the offence punishable under section 161 of theIndian Penal Code and section 5(1)(d) of the Prevention ofCorruption Act, 1947. The prosecution has failed to establish thatthe accused committed offences punishable under section 161 of theIndian Penal Code and section 5(1)(d) of the Prevention ofCorruption Act, 1947. The accused/appellant has made out a case foracquittal. 36. In the result, the Criminal Appeal stands allowed. Thejudgment of the Principal Special Judge for CBI Cases in C.C.No.18of 1997 dated 31.7.1998 is set aside and the accused is found notguilty of the offence punishable under section 161 of the IndianPenal Code and section 5(1)(d) of the Prevention of Corruption Act,1947 and consequently, he is acquitted of those two charges. Fineamount, if any, paid by the accused shall be refunded forthwith.Bail bond executed by the accused/appellant shall stand cancelled. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssk. To1. The Principal Special Judge for CBI Cases, City Civil Court Buildings, Madras.2. The Inspector of Police, C.B.I., Shastri Bhavan, Chennai-6. https://hcservices.ecourts.gov.in/hcservices/

3. The District CollectorChennai District4. The Director General of Police, Chennai5. The Section OfficerCrl. Section,High Court, Madras6. The Public Prosecutor,High Court, Madras.1 cc to Mr.K. selvarangan, Advocate, Sr. 721891 cc to Mr.N. chandrasekaran, Spl. Public Prosecutor for CBI, SR. 72174Crl.A.No.673/1998GR (CO)kk 4/2