THE HONOURABLE MR v. State rep byThe Deputy Superintendent of Police,Vigilance and Anti Corruption Department,Crime No.6/AC/Special/91,Salem

Bail slip--------The Appellants herein/Accused viz, Poovarangasamy,. Ponnvel were directedto eb released on bail as per order of this Hon'ble Court dated 11.6.2001in Crl.M.P.No 3050/2002 in C.A.No. 453/2001.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 24.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.453 of 20011.R.Poovaragasamy2.Ponnvel .. Appellants/A1 & A2Vs.State rep byThe Deputy Superintendent of Police,Vigilance and Anti Corruption Department,Crime No.6/AC/Special/91,Salem. .. Respondent/ComplainantPrayer:- This appeal has been preferred against the judgment dated30.4.2001 made in Special C.C.No.54 of 1992 on the file of the SpecialJudge-cum-Ist additional District and Sessions Judge-Cum-Chief JudicialMagistrate, Salem.For Appellants:Mr.D.Shivakumaran (for A1) Mr.K.Jayaraman (for A2) For Respondent :Mr.V.R.Balasubramanian Additional Public ProsecutorJUDGMENTThis appeal has been preferred by A1 & A2 in Special C.C.No.54 of 1992on the file of the Special Judge-cum-Ist additional District and Sessions https://hcservices.ecourts.gov.in/hcservices/ Judge-Cum-Chief Judicial Magistrate, Salem.2.The short facts of the prosecution case is that A1 being a panchayatUnion Additional Regional Development Officer and A2 being an Accountantin the Panchayat Union office at Vazhapadi Union, have demanded a sum ofRs.1,990/- from P.W.3 on 8.3.1991 as an illegal gratification for passingthe cheque to the tune of Rs.26,937/- being the balance amount payable toP.W.3 for the work of construction of a building in Muthampatti panchayatoffice and received the said amount on 8.3.1991 from P.W.3, which attractsan offence under Section 7 and 13(1)(d) r/w 13(2) of the Prevention ofCorruption Act, 1988.3.On appearance of the accused copies under Section 207 of Cr.P.C.,were furnished to the accused and charge under Section 7 & 13(1)(d) r/w 13(2) of the Prevention of Corruption Act was framed against the accused andwhen questioned, the accused pleaded not guilty. On the side of theprosecution P.W.1 to P.W.11 were examined and Ex.P.1 to Ex.P.23 wereexhibited and M.O.1 to M.O.14 were marked. 4.P.W.1 is the then Rural Development Commissioner, Chennai, duringthe relevant period. According to him, A1 was working as an AdditionalBlock Development Officer, Vazhapadi Panchayat Union and A2 was working asan Assistant in the same panchayat and that he had received a letter fromthe Directorate of Vigilance and Anti Corruption Department, Chennai,dated 16.17.19991, which was placed before him on 14.11.1991 along withrelevant documents, and after perusing those records and after gettinghimself satisfied regarding the prima facie case has been made out againstthe accused, he had issued sanction for prosecution against A1. Ex.P.1 isthe order of sanction for prosecution issued by him against A1 on9.12.1991.5.P.W.2 is the then Collector of Salem. According to him, he hadreceived a letter dated 16.7.1991 from the Directorate of Vigilance andAnti Corruption Department, requesting him to issue sanction order forprosecution against A2 and that he carefully perused the records sent bythe Vigilance and Anti Corruption Department and after getting himselfsatisfied regarding the prima facie case made out against A2, who wasworking as an accountant in the Vazhapadi Punchayat Union at that time,accorded sanction for prosecution against A2 on 31.7.1991.6.P.W.3-Annamalai is the then President of Vazhapadi Panchayat Union.He had also taken contract work during the relevant period and that he hadacquaintance with Block Development Officer and that on 1.3.1991 buildingwas constructed by him under Jawahar Rojana scheme and the said buildingwas opened by the District Collector on 1.3.1991 and the estimated valueof the building was Rs.65,000/- and the estimate was prepared by the BlockDevelopment Officer and and Engineer and that a sum of Rs.18,000/- wassanctioned to him for the purchase of cement and iron roads in the firstinstalment. But since both the cement and iron rods were supplied by the https://hcservices.ecourts.gov.in/hcservices/ Government they have deducted the said amount of Rs.18,000/- from hisbill and the balance of Rs.35,000/- was due to him and after deducting theabove said Rs.18,000/- towards the value of the cement and iron rods a sumof Rs.26,000/- remained to be paid by the Panchyat Union. In thatconnection on 26.3.1991 he met BDO (A1), who in turn had directed him tomeet the accountant (A2), who had demanded Rs.1,250/- to BDO and Rs.740/-to him (Accountant-A2) as a bribe to pass the said bill. A2 had demandedtotally Rs.1,990/-. Since P.W.2 was not inclined to give the said bribeamount of Rs.1,990/- to the accused, on 8.3.1991 he along with his sonP.W.5-Santhappan went to the Vigilance and Anti Corruption Office, Salem,and informed about the demand of bribe by A1 and A2 to the DSP-Krishnasamy, who had directed a Head Constable to write the compliant asnarrated by him. Ex.P.3 is the compliant preferred by him. TheVigilance Officials have brought two government officials viz.Chokalingamand Gokulan to whom Ex.P.3-complaint was handed over and the DSP had askedthem to read Ex.P.3, after introducing him to them and vice-versa. He hadhanded over Rs.1,990/- to DSP-Krishnasamy, who in turn had asked thewitnesses Chokalingam & Gokulan to count the same and he prepared asolution in a tumbler and asked witness Chokalingam to dip his fingers init, when he did so, there was no change in the colour occurred and thatthereafter, he had sprinkled a power on the currency notes handed over byhim (P.W.3) and then asked the witness Chokalingam to count the currencynotes. After he did so, he was asked to dip his finger in the saidsolution, when he dipped his finger in the solution, the colour of thesolution became pink. Ex.P.4-mahazar was prepared for the demonstrationconducted by the DSP-Krishnasamy in his office and after returning thedecoy amount to him (P.W.3), DSP-Krishnasamy had instructed him to handover the amount to the accused on demand and after receiving the amount heshould come out of the office and give a signal to the police who arewaiting out side the office of the accused by combing his head with hands.He along with the witnesses Santhappan and Chokalingam left the vigilanceoffice in a police jeep on the same day at 11.00 am and the jeep wasstopped near the railway gate, at Muthampatti, and the DSP-Krishnasamy hadasked him, Sathappan & Chokalingam to get down from the jeep andinstructed to go to the office of the accused and hand over the decoyamount on demand. P.W.3 would further depose that the distance betweenMuthampatti railway gate, where they got down from the jeep, and theoffice of the accused is about ¾ Km away and while he and the witnesseswere proceeding towards the office of the accused, the other policeofficials followed them at a distance and that at about 12.00 noon, he,Sathappan & Chokalingam reached the Panchayat Union Office and met theAccountant-A2, who after ascertaining that P.W.3 has brought the amountdemanded by him, instructed him to go and meet BDO (A1), who was sittingin the adjacent room of A2. When he met A1, he also ascertained whetherhe (P.W.3) had brought the amount as required by him, after answering inthe affirmative, he came out of the the room of A1 and met A2, who hadasked him to wait outside the office since RDO and DDO were present in theoffice and that he along with the other witnesses waited outside theoffice till 6.00 pm. After RDO & DDO left the office at about 6.00 pm, A2 https://hcservices.ecourts.gov.in/hcservices/ called him and had requested to bring the rubber stamp of the panchayatboard standing in his name, to his house at about 9.00 pm. As instructed,he brought the rubber stamp of the panchayat union and went to A2's houseat about 9.00 pm, which is situated within the campus of A2's office. Atthat time when he and other witnesses Santhappan and Chokalingam reachedthe house of A2, A2 demanded the amount and that he handed overRs.1,990/- along with the rubber stamp. After taking Rs.740/- towards hisshare, A2 took the balance amount Rs.1,250/- along with the seal and againwent to BDO's office to see A1. At that time, when he entered into theroom of A1, A2 asked Sathappan(P.W.5) to accompany him and asked him(P.W.3) to wait outside the room. After a while, P.W.5 came out of theoffice room of A1 and informed him that A1 had signed in the cheque bookand asked him (P.W.3) to receive the cheque. Immediately, he went outsidethe office of A1 and signaled as instructed by DSP-Krishnasamy in theVigilance Office, by combing his hair with hands. Immediately, theofficials of the Vigilance and Anti Corruption Department entered into theoffice of A1, to whom he had identified A1 & A2, and also he handed overthe cheque to them and P.W.5 also handed over the seal to him (P.W.3) andthe Vigilance and Anti Corruption officials have also seized the seal fromhim under a mahazar. In the chief-examination P.W.3 had stated that on26.3.1991 he had seen A1 and that the demand was made by A2 on 26.3.1991.But by way of putting a leading question the Assistant Public Prosecutorafter getting permission from the Court has ascertained from P.W.3 thatthe demand was made only on 6.3.1991 and non on 26.3.1991.7.P.W.4-Chokalingam is the Assistant Director of Geo Technical Centre,Dindigal. According to him, during the relevant period he was working inthe same department at Salem and that he knows P.W.3-Annamalai and on8.3.1991 he went to Vigilance and Anti Corruption office at Salem, as perthe requisition made by the DSP-Krishnasamy and other witness Gokulan wasalso present there and that DSP-Krishnasamy handed over Ex.P.3-complaintpreferred by P.W.3-Annamalai and asked both of them to read the same afterintroducing Annamalai (P.W.3) to him and P.W.3 has also handed overRs.1,990/- being the decoy amount to the DSP-Krishnasamy, who in turn hadasked him to count the same. Thereafter, DSP-Krishnasamy had prepared aSodium Carbonate solution in a glass tumbler and asked him (P.W.4) to diphis finger in it, when he did so, there was no change of colour in thesolution. Thereafter, DSP-Krishnasamy had sprinkled the phenolphthaleinpower over the currency notes handed over by P.W.3-Annamalai and thenasked him (P.W.3) to count the same, the DSP-Krishnasamy had instructedhim to dip his finger in the sodium carbonate solution, when he did so,the colour of the solution turned into pink. After assigning letter S-1to the bottle containing the solution, DSP-Krishnasamy has prepared amahazar. M.O.2 is the said bottle containing the pink coloured sodiumcarbonate solution. Thereafter, DSP-Krishnasamy had handed over the decoyamount which was sprinkled with Phenolphthalein powder to P.W.3-Annamalai,directing him to handover the same only on demand to the accused. M.O.3is the bottle containing the sodium carbonate solution which was marked as'A', and M.O.4 is the cover containing the Phenolphthalein powder which https://hcservices.ecourts.gov.in/hcservices/ was marked as 'B', which were seized under Ex.P.4-mahazar. DSP-Krishnasamy has also instructed him (P.W.4) to accompany P.W.3-Annamalaiand that he accompanied Annamalai and other witnesses in a jeep and gotdown at railway gate Muthampatti and that they reached BDO's office atabout 12.30 pm and met A2, who had enquired P.W.3-Annamalai whether he hadbrought the amount required by him and after ascertaining the same he hadinstructed P.W.3 to meet A1-BDO, who was sitting in the adjacent room, whoalso had enquired P.W.3 whether he had brought the amount required by himand after ascertaining that P.W.3 had brought the amount, he instructedP.W.3-Annamalai to hand over the amount to A2 and to receive the cheque.As per the instructions of A2, he and other witnesses waited in the BDOoffice till 8.00 pm. Thereafter P.W.3 went to his house to bring his sealand went to A2's house along with the other witness, which is situatedwithin the campus of the office of BDO at about 9.30 pm, P.W.3 broughtthe seal from his house and he (P.W.3) handed over Rs.1,990/- to A2 asdemanded by A2. After affixing the seal in the cheque leaf and aftertaking Rs.740/- from Rs.1,990/- handed over by P.W.2 and keeping the sameon the table, with the balance amount, cheque book and seal, A2 wentinside the office room of A1 after asking Annamalai(P.W.3) and him(P.W.4)to wait outside. A2 took P.W.5-Sathappan along with him to the officeroom of A1 and after a while P.W.5-Sathappan came out of the office roomof A1 and informed P.W.3 and other witness that A1 had received the bribeamount and also signed in the cheque and requested P.W.3 to receive thecheque from A2. After hearing this, P.W.3-Annamalai had signaled the DSP-Krishnasamy and other police officials who were waiting outside the officeof A1. Immediately DSP-Krishnasamy entered into the office of A1 alongwith other police officials and witnesses. After introducing himself toA1 & A2, a sodium carbonate solution was prepared in a glass tumbler inwhich DSP-Krishnasamy had asked A1 to dip his fingers, when A1 did so, thecolour of the solution turned into pink. After collecting the solution intwo bottles, the DSP-Krishnasamy has assigned S-2 & S-3 marks to the saidbottles. They are M.O.5 & M.O.6 respectively. When the DSP-Krishnasamyasked A2 about the amount received by him, A2 informed that the amount isin his house. Thereafter, the sodium carbonate solution was prepared intwo bottles by the DSP-Krishnasamy and he asked A1 to dip his fingers init, when he did so, both the solution turned pink in colour, which werecollected in two bottles and sealed. They are M.O.7 & M.O.8 respectively.The solution in which the right hand fingers of A1 were dipped was markedas S4 and the solution in which A1 had dipped his left hand fingers wasmarked as S5 by the DSP-Krishnasamy. When the DSP-Krishnasamy asked aboutthe bribe amount to A1, he took out the same from his pant pocket andproduced. The numbers in the currency notes were tallied with the numbersmentioned in the mahazar prepared in the Vigilance office, A1 hadseparately placed Rs.50/- in the drawer n a zip bag out of the bribeamount received. The DSP-Krishnasamy has also recovered the pant and thezip bag from which Rs.50/- was taken out by A1 and the total sum seizedwas Rs.1250/-. M.O.10 is the pant. The DSP-Krishnasamy has also preparedanother sodium carbonate solution and dipped the pocket of the pantrecovered from A1, the colour of the solution turned pink. The said https://hcservices.ecourts.gov.in/hcservices/ solution was collected in a bottle and assigned the mark S6 on it. M.O.1is the said bottle containing the solution. When the DSP-Krishnasamyenquired A2 about the mode under which he brought the bribe amount to theroom of A1, A2 informed that he wrapped the amount in a kerchief andbrought the same to the office of A1. DSP-Krishnasamy seized the saidkerchief and also conducted a sodium carbonate test, when the kerchief wasdipped in the sodium carbonate solution, the solution turned pink incolour. M.O.13 is the said kerchief. M.O.12 is the said sodium carbonatesolution. Ex.P.5 is the file relating to the P.W.3's contract No.671/90of Vazhapadi Panchayat Union. Ex.P.6 is the voucher No.87/90. Ex.P.7 isthe second voucher No.290/90. Both the documents were seized by the DSP-Krishnasamy. Measurement book relating to P.W.3's contract is Ex.P.8.Ex.P.9 is the cheque book, which contained the cheque drawn in favour ofAnnamalai by A1 after receiving the bribe amount. Ex.P.10 is the chequeleaf bearing No.534700 in Ex.P.9-cheque book. Ex.P.11 is the cash bookand Ex.P.12 is the attendance register, in which he (P.W.4) has signed.DSP-Krishnasamy has arrested A1 & A2 and took A2 to his house from wherefrom the table a sum of Rs.740/- was seized by the DSP. The numbers inthe currency notes were also verified with the numbers in the mahazarprepared at the Vigilance and Anti Corruption Office and found tallied. Amahazar Ex.P.13 was prepared in which P.W.4 has signed. M.O.14 is theseal of the Muthampatti Panchayat. M.O.14 was recovered under Ex.P.14-mahazar. Afterwards, he returned along with the other witnesses and otherpolice officials to the Vigilance and Anti Corruption Office at Salem on9.3.1991 at about 9.00 am.8.P.W.5 is the son of P.W.3, who had also accompanied P.W.3 to theoffice of A1 and A2 on the date of occurrence. He would corroborate theevidence of P.W.3, his father. According to him, the contract work takenby P.W.3, his father, was carried out only by him and that the PanchyatUnion building was completed within three months from the date of contractand the building was opened by the District Collector and a bill forRs.26,000/- was due to P.W.3 in this regard and that on 6.3.1991 hisfather P.W.3 went to BDO's office and enquired about the passing of thebill for Rs.26,000/-, but he (P.W.3) returned and informed him (P.W.5)that for passing the said bill the accused were demanding Rs.1,990/-towards bribe. Since he is not inclined to give any bribe amount he tookhis father to the Vigilance and Anti Corruption office on 8.3.1991 atabout 7.00 am and that his father P.W.3 has preferred a complaint to theSuperintendent of Police. He would also depose about the arrival of twowitnesses viz. Chokalingam and Gokulan and also about the demonstration ofsodium carbonate and Phenolphthalein tests conducted by the DSP-Krishnasamy. He would further corroborate the evidence of P.W.3 & P.W.4relating to the trap conducted in the office of A1 and also in the houseof A2 after receiving the bribe amount of Rs.1250/- and Rs.740/-respectively. According to him, the bribe amount Rs.1,250/- was paid bythe A2 to A1 in his (P.W.5) presence in the office room of A1.9.P.W.6 is the Engineer in Vazhapadi Panchayat Union. He has produced https://hcservices.ecourts.gov.in/hcservices/ Ex.P.5 to Ex.P.8 records which were maintained in his office. Ex.P.5 isthe file relating to the building contract taken by P.W.3-Annamalai.According to him, as per Ex.P.16 a sum of Rs.26,937/- was due to P.W.3 inconnection with the said contract.10.P.W.7 is the Junior Assistant, who had maintained Ex.P.5-file. Hewould also corroborate the evidence of P.W.6 to the effect that a sum ofRs.26,937/- was due to P.W.3 under the said contract.11.P.W.8 is the then Regional Development Officer of Salem Region. Hehad produced Ex.P.17 office notes to show that on 8.3.1991 A1 was workingas BDO, Vazhapadi Panchayat Union.12.P.W.9 is the then Head Clerk of Chief Judicial Magistrate Court,Salem. According to him, as per Ex.P.18-letter of requisition by the DSP,Vigilance and Anti Corruption Department, the material objects connectedwith this case were sent for chemical analysis through Ex.P.19-letter ofrequisition from the Court. Ex.P.20 is the chemical analyst's report.13.P.W.10 is the then DSP of the Vigilance and Anti CorruptionDepartment, Salem. He had registered the compliant preferred by P.W.3under Cr.No.117/98. Ex.P.21 is the FIR. He had secured independentwitnesses viz.Chokalingam and Gokulan from the Tamil Nadu Housing Board atSalem and Statistics Department respectively. After demonstrating theimportance of sodium carbonate and phenolphthalein tests and afterpreparing mahazar Ex.P.4, he had sent P.W.3, Sathappan (P.W.5) andChokalingam (P.W.4) and another witness Gokulan and the team of officialsin a jeep to the office of A1 & A2 and that P.W.3, P.W.5-Sathappan andP.W.4-Chokalingam alighted at Muthampatti railway gate from the jeep andthey proceeded to the office of A1 & A2, and that he and other officialsand other witness Gokulan followed them to the BDO's office and waitedoutside the office expecting the signal from decoy witness. He would alsodepose that the numbers of the currency notes of Rs.1,250/- recovered fromA1 and the numbers of the currency notes of Rs.740/- recovered from A2tallied with the numbers of the currency notes noted in Ex.P.4-mahazarprepared at his office. He also speaks about the sodium carbonate andphenolphthalein tests conducted during the trap and that A1 & A2 dippedtheir fingers in the sodium carbonate solution and the colour of thesolution turned pink. The kerchief used by A2 and the pant seized from A1were, when subjected to phenolphthalein test also answered positive forthe test.14.P.W.11 is the Investigating Officer, who had examined the witnessesand recorded their statements and after following the formalities, hadlaid the charge sheet against the accused under Section 7 & 13(1)(d) r/w13(2) of the Prevention of Corruption Act, 1988. https://hcservices.ecourts.gov.in/hcservices/

15.When the incriminating circumstances were put to the accused theydenied their complicity with the crime. D.W.1 & DW.2 were examined on theside of the accused and no documents produced on the side of the accused.The defence taken by the accused at 313 stage was that A2 had borrowedRs.1,200/- from A1 and on 8.3.1991 at about 10.30 pm A2, according to A1,had returned the hand loan of Rs.1,200/- and at that time the Vigilanceand Anti Corruption Police have caught hold of him. According to A2,P.W.5-Sathappan is known to him and he had borrowed Rs.1,500/- from him on13.4.1990 but he has not repaid the said loan inspite of his repeateddemands and during the first week of March-1991 he met P.W.5-Sathappan inhis house and requested him to repay the loan amount immediately and atthat time Sathappan's second wife, who is working in the policedepartment, interfered and there arose a quarrel and he (P.W.3) alsocriminally intimidated him and took a vow to take vengeance against himand on 8.3.1991 at about 10.00 pm P.W.5-Sathappan came to his house andtendered Rs.1,990/50 being the amount due towards principal and interestfor Rs.1,200/- borrowed as a hand loan by Sathappan. D.W.1 is the wife ofA2 and D.W.2 is A1. They also deposed in accordacne with the statementfiled at the time when the incriminating circumstances were put to themunder Section 313 of Cr.P.C.16.Now the point for determination in this appeal is whether thecharge under Section 7 & 13(1)(d) r/w 13(2) of the Prevention ofCorruption Act, 1998 has been made out to warrant conviction, or thefindings of the learned trial Judge in Special C.C.No.54 of 1992 on thefile of the Special Judge-cum-Ist additional District and Sessions Judge-Cum-Chief Judicial Magistrate, Salem, is liable to be set aside for thereasons stated in the memorandum of appeal?17.The Point:- 17(a)The learned counsel appearing for A2Mr.K.Jayaraman and the learned counsel appearing for A1 Mr.D.Shivakumaranwould point out some of the discrepancies in the evidence of P.W.1 andwould contend that the demand of bribe amount and the receipt of the samewill not be true and not as alleged by the prosecution. The learnedcounsel Mr.D.Sivakumaran focused the attention of this Court to theevidence of P.W.3-Annamalai, the complainant, and contended that accordingto P.W.3, the demand of Rs.1,990/- for passing his bill for Rs.26,000/- byA1 & A2 was made on 26.3.1991 whereas in the complaint Ex.P.3, date ofdemand of bribe amount of Rs.1,990/- by A1 &A2 was on 6.3.1991. Eventhough in the chief examination P.W.3 has stated at one place as thedemand was made by the accused on 26.3.1991, at the fag end of his chiefexamination the mistake was clarified by the Public Prosecutor by puttinga leading question with the permission of the Court to the effect that thedemand was made by A1 & A2 only on 6.3.1991 when he met them on 6.3.1991.Further the complaint under Ex.P.3 was also preferred by P.W.3-Annamalaion 8.3.1991 itself. Under such circumstances, it cannot be said that thedemand of bribe amount of Rs.1,990/- for passing a bill in favour of P.W.3for a sum of Rs.26,000/- was made on 26.3.1991.17(b)Yet another flaw, according to the learned counsel for A1 https://hcservices.ecourts.gov.in/hcservices/ Mr.D.Shivakumaran is that as per the instructions of P.W.10, the decoyamount was handed over to P.W.3 with an instruction that on demand by theaccused he shall hand over the same to them and then to give a signal tothe Vigilance and Anti Corruption Officials, who were waiting out side theoffice of A1 and A2, but according to P.W.3 after the demand was made byA2, the amount was handed over by P.W.5, the son of P.W.3, which willvitiate the entire trap conducted by the prosecution. P.W.5 is none otherthan the son of P.W.3. After the demand made by A1, P.W.3 in his chief-examination has stated that the decoy amount was handed over by him(P.W.3). But in the cross-examination he would admit that after thedemand his son P.W.5 gave the decoy amount to A2. He would further deposethat he is not present at the time when A1 had received the bribe amount.It is not in dispute that the amount recovered from A1 & A2 are the decoyamount and in my view it is immaterial whether the bribe amount after thedemand was handed over either by the father P.W.3 or son P.W.5 to theaccused. But the phenolphthalein test conducted after the trap asevidenced by P.W.4 and P.W.10 will go to show that both the accused havereceived the decoy amount. Even though P.W.3 was not present at the timewhen A2 had handed over Rs.1,250/- the bribe amount demanded by A1 to A1,P.W.5 was present in the office room of A1 and only in his presence A2 hashanded over the bribe amount of Rs.1,250/- to A1 and immediately P.W.5came out of the room of A1 and informed the same to his father P.W.3 thatA1 had agreed to sign in the cheque for the amount due to P.W.3.Thereafter as instructed by P.W.10 signal was given by P.w.3 andimmediately P.W.10 along with his team rushed to the office room of A1 andrecovered the bribe amount of Rs.1,250/- from A1.17(c)The learned counsel for A1 Mr.D.Shivakumaran would attackthe test conducted by P.W.10 was not proper on the ground that evenaccording to the prosecution, the sum of Rs.50/- was recovered from a zipbag, but the said zip bag was not subjected to phenolphthalein test eventhough the pant pocket from which Rs.1,200/- was recovered was subjectedto phenolphthalein test. Even though the zip bag was not subjected tophenolphthalein test the zip bag recovered by P.W.10 was marked as M.O.9.The trap was conducted in the presence of the independent witnesses P.W.4Chokalingam. There is no motive attributed against P.W.4 to deposefalsehood against the accused. It is the definite case of the accusedwhile they were subjected to question under Section 313 of Cr.P.C., inrespect of the incriminating circumstances against them, P.W.5-Sathappanhad borrowed a sum of Rs.1,500/- from A2 and that while the said loanamount was demanded to be repaid by A2 both P.W.5 and his second wife, apolice constable, took a vow that they will take revenge against A2 andaccordingly they have foisted this case against A1 and A2. Even if it istrue, there is no motive against P.W.5 and his wife to make a falsecomplaint against A1. But according to A1 as D.W.2, A2 had borrowedRs.1,200/- from him and on 8.3.1991 at about 10.30 pm A2 came to hishouse to repay the said loan of Rs.1,200/- and at that time VigilancePolice came and seized the amount. But according to P.W.5, A2 had handedover Rs.1,250/- in his presence to A1 on 8.3.1991 and not Rs.1,200/-. https://hcservices.ecourts.gov.in/hcservices/ Under such circumstances, the defence story that A2 had borrowedRs.1,200/- from A1 and P.W.5 had borrowed Rs.1,500/- from A2 cannot bebelieved. P.W.3 is a contractor and he had taken a contract building workunder Vazhapadi Panchayat Union and that the sum of Rs.26,937/- is theamount due to P.W.3 are all spoken to in detail by P.W.6 & P.W.7. Undersuch circumstances, I do not find any reason to interfere with the wellconsidered judgment of the learned trial judge in Special C.C.No.54 of1992 on the file of the Special Judge-cum-Ist Additional District andSessions Judge-Cum-Chief Judicial Magistrate, Salem.17(d)The learned trial Judge has convicted the accused underSection 7 & 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. Asper the ratio decidendi in 2007(1) SCC (Cri 520 (State represented byInspector of Police Pudukottai,T.N, vs A.Parthiban), even though aconviction under Section 7 & 13(1)(d) r/w 13(2) of the Prevention ofCorruption Act is maintainable, there cannot be a sentence under both thesections. The relevant observation in the above said dictum for thepurpose of this case runs as follows:-"Every acceptance of illegal gratification, whetherpreceded by a demand or not, would be covered by Section 7 ofthe Act. But if the acceptance of an illegal gratification isin pursuance of a demand by the public servant, then it wouldalso fall under Section 13(1)(d) of the Act. The act allegedagainst the respondent, of demanding and receiving illegalgratification constitutes an offence both under Section 7 andunder Section 13(1)(d) of the Act. The offence being a singletransaction, but falling under two different sections, theoffender cannot be liable for double penalty. But the Highcourt committed an error in holding that a single act ofreceiving an illegal gratification, where there was demand andacceptance, cannot be an offence both under Section 7 and underSection 13(1)(d) of the Act. As the offence is one which fallsunder two different sections providing different punishments,the offender should not be punished with a more severepunishment than the court could award to the person for any oneof the two offences. In this case, minimum punishment underSection 7 is six months and the minimum punishment under Section13(1)(d) is one year. If an offence falls under both sections 7and 13(1)(d) and the Court wants to award only the minimumpunishment, then the punishment would be one year."I am of the view that the accused in this case are liable to be sentencedunder Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act.Point is answered accordingly.17(e)At this juncture the learned counsel for the appellants wouldrepresent that A1 is now aged 74 years and A2 is having seven children andon that score some leniency may be shown on them while confirming thesentence. But the trial Court itself has given only a minimum sentence.The learned Additional Public Prosecutor relying on (2007)1 SCC(cri)1 https://hcservices.ecourts.gov.in/hcservices/ (State of M.P.-vs- Shambhu Dayal Nagar), would contend that the offence ofthis nature cannot be viewed lightly and in support of this contention,the learned Additional Public Prosecutor relied on an observation of theHonourable Apex Court in the above said dictum which runs as follows:-"It is difficult to accept the prayer that a lenient view betaken in this case. The corruption by public servants hasbecome a gigantic problem. It has spread every where. No facetof public activity has been left unaffected by the stink ofcorruption. It has deep and pervasive impact on thefunctioning of the entire country. Large-scale corruptionretards the nation-building activities and every one has tosuffer on that count. Corruption is corroding, like cancerouslymph nodes, the vital veins of the body politics, social fabricof efficiency in the public service and demoralising the honestofficers. The efficiency in public service would improve onlywhen the public servant devotes his sincere attention and doesthe duty diligently, truthfully, honestly and devotes himselfassiduously to the performance of the duties of his post."18.In fine, the appeal is dismissed confirming the conviction of thetrial Court in Special C.C.No.54 of 1992 on the file of the Special Judge-cum-Ist Additional District and Sessions Judge-Cum-Chief JudicialMagistrate, Salem, under Sections 7 & 13(1)(d) r/w 13(2) of the Preventionof Corruption Act. The sentence of six moths RI and a fine of Rs.500/-each under Section 7 of the prevention of Corruption Act passed by thetrial Court, is hereby set aside, but the sentence of one year RI and afine of Rs.1000/- each in default to undergo 2 months RI imposed underSection 13(1)(d) r/w 13(2) of the Prevention of Corruption Act passed bythe trial Court, is hereby confirmed. The learned trial Court is directedto secure the accused and send them to prison to serve the unexpendedportion of the sentence. It is represented on behalf of the appellantsthat they may be permitted to approach the Government under Section 432 ofCr.P.C., for necessary relief. It is open to the appellants herein toapproach the government under Section 432 of Cr.P.C., for any leniency asprovided by the said provision of law. The accused are entitled to therefund of the fine levied under Section 7 of the Prevent of CorruptionAct, 1988, by the trial Court.SsvSd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To,1.The Additional District and Sessions Judge -cum-Chief Judicial Magistrate, Salem.2.The District and Sessions Judge, Salem3.The Public Prosecutor, High Court, Madras.4.The Deputy Superintendent of Police, Vigilance and Anti Corruption Department, (Crime No.6/AC/Special/91+ One cc to M/s U. Jayaraman, Advocate SR 45751+ One cc to M/s D. Shivakumaran, Advoacate sR 45719GK (co)sg 3/8/07Crl.A.No.453 of 2001