Criminal Appeal No. 727 of 2018 · Madrasdated High Court · 2024

Crl.A.No.727 of 2018government, a Final report was filed against A-1 and A-2. The prosecution examined P.W.1 to P.W.17 and marked Ex. P1 to Ex.P26. Material objects 1 to 11 were also marked. A-1 examined herself as D.W.1 and marked Ex.D1. 2.6. The trial court found that there are glaring contradictions in the evidence of witnesses PW2 to PW5 and also found that PW 2 and PW5 are not wholly reliable witnesses, acquitted the accused in Special C.C.No.58 of 2014 by judgment dated 31.10.2017. The appeal has been filed by the respondent State against the judgment of acquittal of the accused.3. Assailing the judgment of acquittal, Mr.Santhosh learned Government Advocate (Crl. Side) submitted his arguments as under:-i) It is a clear case of demand of illegal gratification by A1 and A2. The 1st accused was working as Assistant Engineer (O & M) TNEB, Mallamoopampatty and the 2nd Accused was working as Assistant Executive Engineer in Swarnapuri TNEB Office, Salem. ii) The cogent evidence of the prosecution witnesses would prove that the defacto complainant (Ramamoorthy)/PW2, who is a businessman, had applied to the office of the 1st accused for an electricity service connection 4 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018for his unit and the 1st accused demanded a sum of Rs.25,000/- as illegal gratification from him for the same. Since the complainant expressed his inability, the 1st accused refused to receive the application despite several requests and again on 2-3-2009, the complainant attempted to present the application to the 1st accused at her office, but she refused to receive the same and directed him to meet the 2nd accused/Assistant Executive Engineer, Salem on the same day. When the complainant met the 2nd accused, he had demanded illegal gratification of Rs.27,000/- from the complainant and the complainant expressed his inability to pay and requested the registration of his application. Hence the application was registered on the same day by paying the necessary fees. Subsequently on 19-3-2009 at about 4:30 pm, the defacto complainant had contacted the 1st accused through phone, who had, in turn, instructed him to meet the 2nd accused at his office. Since the Complainant was engaged in other work, he sent PW-5/Balamurugan to meet the 2nd accused, where both the accused reiterated the demand. When PW-5 Balamuruagn expressed inability to pay, both the Accused insisted on paying at least Rs.5000/- as initial payment and thereby PW-5 informed the same to PW-2 Ramamurthy. Since PW-2 5 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018Ramamurthy was not inclined to pay the amount demanded by the accused, he preferred an oral complaint to DVAC, Namakkal on 20-3-2009 at 8.00 AM, which was reduced into a statement (Ex-P2) and subsequently an FIR in Crime number 4/AC/2009 was registered at 9.00 a.m., by PW-16 Paneerselavm (TLO) and after summoning of official witnesses PW-3 Kandhaswamy and PW4 Rajan. PW-16 after observing pre-trap formalities, prepared Entrustment Mahazar Ex-P6 and proceeded to the office of the accused laid trap seized the money arrested the accused and prepared Seizure Mahazar/Ex.P-9. Subsequently, the investigation was conducted by PW-17/ Periyasamy and the final report was filed against the accused and the case was taken up for trial. iii) The prosecution, by examining PWs.2, 3 and 5, categorically proved the pre-trap demand, the demand on the date of the trap and that the accused had received the amount and the phenolphthalein test conducted in the presence of PW3 and PW4 also proved positive. In such circumstances, the prosecution is entitled to presumption under Section 20 of the Prevention of Corruption Act and Section 114 (a) of the Evidence Act. The accused have not rebutted the presumption, however, the trial Court, taking 6 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018into consideration the minor contradictions in the evidence of the witnesses, had erroneously held that the demand had not been proved and acquitted the accused and thereby the order of the trial Court is without proper appreciation of evidence which is perverse and thereby seek to set aside the order of the trial Court.4. In reply, Mr.S.Karthikeyan, learned counsel appearing for the respondent/accused would submit his arguments as under:-i) The trial Court, after a threadbare analysis of the evidence of PW2 to PW5, found that PW2 and PW5 are not wholly reliable witnesses and the trial court has also found that PW2 has suppressed the earlier application submitted and to get the connections, had given a false complaint against the accused. ii) The trial Court also found that the demand made by the accused has not been proved beyond all reasonable doubts and further finding that except mere recovery, the foundational facts have not been proved by the prosecution, held that the prosecution is not entitled to seek benefit under Section 20 of Prevention of Corruption Act. 7 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018iii) The trial Court, placing reliance on Ex.D1, which contained the previous application of the complainant and consequent rejections, held that the statement of PW2 cannot be believed. Though the prosecution claims to have proved the recovery, the mere recovery itself cannot incriminate the accused unless the demand has been proved by the prosecution. iv) The trial court, after thoroughly analysing the evidence of key witnesses viz., PW2, PW3 and PW5, found that there were several material contradictions, improvements and embellishments and thereby discarded their evidence in respect of demand. v) The trial court, which had the benefit of seeing the demeanour of the witnesses, had also held that PW2 and PW5 are not “wholly reliable witnesses” that the complaint Ex.P2 was not genuine and that there is no iota of evidence on record to establish the initial and final demand. vi) Further A1, by confronting PW2 with Ex D1 at the time of cross-examining him and by examining herself as DW1 raised a probable defence stating that there was no demand and that the defacto complainant had applied for an industrial connection and since there was some technical problem on account of insufficient load, there had been delay and the 8 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018defacto complainant, who was desperate to have a service connection, had given a false complaint. vii) Further, the trial Court after analysis of the evidence of DW1, held that the defence of the accused is a probable and possible one, had acquitted the accused. The respondent/accused has proved innocence and the presumption of innocence is in favour of the accused and therefore the presumption of innocence gets bolstered when the case ends in acquittal. and in such circumstances, the well-reasoned order of acquittal cannot be set aside unless the view of the trial court is found to be perverse and thereby he would seek for dismissal of the appeal.5. Heard Mr S.Santhosh, learned Government Advocate (Crl. Side) appearing for the appellant/State and Mr. Karthikeyan, learned counsel appearing for the 1st accused. It is represented by the learned Government Advocate that the 2nd accused namely Senthilnathan, Assistant Executive Engineer, Salem had passed away pending appeal and therefore, the challenge in this appeal is only as against the acquittal of 1st Accused/respondent herein.9 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 20186. At the outset, before embarking on the rival contentions raised before this court, while dealing with a judgment of acquittal it is essential to keep in mind the well-settled principles of law that in the event of possibility of taking two views, this Court shall not interfere with a judgment of acquittal. At the same time, there cannot be any doubt that in the event of the court concluding that only one view is possible on the basis of the materials brought on record, a judgment of acquittal may be interfered with. 7. Further, before venturing into analysis and assessment of the entire evidence available on record, to appraise the reasons assigned by the trial Court in acquitting the accused, it is relevant to refer to a few decisions of the Honourable Apex Court in respect of the principles regarding the power of the appellate Court to interfere in an appeal against the judgment of acquittal.10 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 20188. In "Chandrappa v. State of Karnataka" MANU/SC/7108/2007 : ((2007) 4 SCC 415), the Hon'ble Supreme Court held that the appellate Court should not ordinarily interfere with a judgment of acquittal in a case where two views are possible even though the trial Court's view may not appear “more probable one” and further held as follows:"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal 11 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018against acquittal. Such phraseologies are more in the nature of"flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."9. In"Mrinal Das v. State of Tripura" MANU/SC/1030/2011 : (2011) 9 SCC 479, the Hon'ble Supreme Court has held that the appellate Court being the final Court of facts is fully competent to re-appreciate, 12 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018reconsider and review the evidence and take its own decision keeping in mind that the acquittal provides for a presumption in favour of the accused and also that if two reasonable views are possible on the basis of the evidence on record, the appellate Court should not disturb the findings of the trial Court. The appellate Court can also review the conclusions arrived at by the trial Court both on questions of fact and law and it is the duty of the appellate Court to marshal the entire evidence on record and only by giving cogent and adequate reasons, set aside the judgment of acquittal. Paragraph No. 8 of the aforesaid judgment is quoted hereunder for ready reference: "8. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words,law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in 13 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State,it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."10. In Sudershan Kumar Vs. State of Himachal Pradesh reported in 14 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018MANU/SC/1206/2014 :2014:INSC:889 : (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment, has held that it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.11. In Jafarudheen and others Vs. State of Kerala, reported in MANU/SC/0531/2022 : ((2022) 8 Supreme Court Cases 440), at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as under: " 25.While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only 15 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."12. The aforesaid view of the Hon'ble Supreme Court has been reiterated in numerous later decisions of the Hon'ble Supreme Court including the case in "Vijayakumar Vs. State of Tamil Nadu, (2021) 3 SCC 687; Ravi Sharma v. State (NCT of Delhi)" MANU/SC/0856/2022: 2022:INSC:699 : (2022) 8 SCC 536 and also in Roopwanti Vs. State of Haryana and others, reported in MANU/SC/0162/2023 :2023:INSC:157 :AIR 2023 SC 1199.13. In the case of an appeal against acquittal, this court is burdened with the task of finding outi. Whether the trial Court has properly appreciated the evidence on record.ii. Whether the findings or the reasoning of the trial Court acquitting the accused suffers from any illegality or perversity.iii. Whether the view taken by the trial Court acquitting the accused is a probable or possible view.16 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 201814. A perusal of the judgment would show that the trial Court, after careful analysis, found that the star witnesses PW2/defacto complainant and PW5/Balamurugan are wholly unreliable witnesses. The reasons for treating them as wholly unreliable witnesses have been set out in paragraphs 32 to 58 of the judgment.16. This Court has to re-appreciate and analyse the evidence to conclude as to whether the reasoning given by the trial court to disbelieve PW2 and PW5 and holding them to be wholly unreliable witnesses is on proper appreciation of evidence.17 . Now coming to the evidence of PW2 admittedly, it is the case of PW2/defacto complainant that 40 days before the occurrence, there was a demand by the accused and subsequently there were demands nearly 6 to 7 times before 02.03.2009. Further, as per PW2, there were also demands between 02.03.2009 and 19.03.2009 and also on the date of trap i.e.,on 20.03.2009. However, from Ex.D1 it is seen that PW2 had suppressed the 17 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018earlier application dated 03.06.2008. Ex.D1 had been tendered into evidence during the cross-examination of PW2. This would prove that the application dated 03.06.2008 seeking electricity connection got cancelled since PW2 had not rectified the defects pointed out in the letter of the AE and also for non-remittance of the additional deposit amount. The subsequent application was also for the same cause and a continuation of the earlier one and there is no mention of the same in the complaint Ex P2. This suppression speaks about the credibility of PW2. Further, in respect of the alleged telephonic conversations, the prosecution had examined PW14, the Legal Officer of Aircel, the service provider and marked the CDR particulars as Ex.P17. Even as per the CDR particulars, admittedly, excepting one call between A1 and PW2 on 12.03.2009, there is no other call and furthermore, since PW17 does not have any certification under Section 65B of the Indian Evidence Act, no reliance can also be placed on the same.18. Coming to the aspect of demand, the trial court had framed charges under Section 7 of the PC Act in respect of 18 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018(1) Demand of Rs.25000/= 40 days before 20.03.2009 by A1 at her office.(2) Subsequent reiteration on several occasions.(3) Demand of Rs 27000/= by A2 on 02.03.2009 from PW2 at Swarnapuri AE office in the presence of PW5. (4) Reiteration of demand by A1 and A2 to PW5 on 19.03.2009. In respect of the same, there had been several material contradictions in the evidence of PW2 and PW5 about the demand. The relationship between PW2 and PW5 was doubtful. Further, there is no mention in Ex P2 as to the place of receipt of the bribe amount; i.e., whether at the AE office at Mallamoopanpatty or the AEE's office at Swarnapuri Salem. There is no explanation as to how the place of the trap was fixed. The presence of PW5 at the time of trap is also doubtful. While it is the evidence of PW2 that he went along with the official witness in a two-wheeler, PW5 has deposed that he came in a separate two-wheeler. 19. The evidence of the prosecution witnesses being with such contradictions, the explanation of A1 seems to be more probable. A1 states that she had not demanded any illegal gratification from PW-2 19 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018Ramamurthy. The 1st Accused had processed the application given by PW2 Ramamurthy on 2-3-2009 and on perusal of files, she had found about the earlier application given by PW2 on 3-6-2008 and she had instructed PW2 to pursue the old application itself, which was not accepted by PW2 Ramamurthy. On scrutiny of the application, it was found that the application area is an industrial estate and adequate load was not available in the transformer and since enhancement was required, she prepared an estimate and submitted the same to the AEE office on 13-3-2009 itself, which was also informed to PW2 also. She had further asserted that she had not met PW2 or PW5 on 19-3-2009. On 20-3-2009, while she was on inspection along with the 2nd Accused, PW2 had called her at Noon and later at 1.30 pm also and later, after inspection, when she and the 2nd Accused were sitting in the office and going through the files, PW2 came and enquired about the connection, for which she had answered that it would take 60 days and was was continuing her work, whileso, she saw money scattered on the table and on the floor and when she and A-2 started collecting the same, DVAC officials came and later what happened are in the case. Further, this fact is strengthened by the evidence of PW-6 and 20 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018PW-7, who are employees of TNEB. As per their evidence, they were present at the scene of the Trap and they left when told by TLO, but conspicuously they did not speak about the payment of money.20. From an overall analysis, it is seen that the evidence adduced by the prosecution witnesses especially, by P.Ws.2 to 5, is is not only glaring and incompatible but also with material contradictions with the contents of the complainant's statement (Ex.P2). Further, the recitals in Ex.D2 discloses a completely different case. Additionally, there are glaring contradictions in PW2's evidence regarding the relationship between the complainant and PW5. The trial Court also considered the fact that although PW2 was allotted a plot for industrial purposes, he did not comply with the allotment conditions, leading to a risk of cancellation and there was a desperate need for him to obtain the connection at any cost. 21. The trial Court had also taken into consideration the contradictions, discrepancies, improvements and embellishments in the evidence of PW2, PW3 and PW5. Further during the cross-examination of 21 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018PW2, the counsel for A1 had confronted him by producing Ex.D1, which are attested copies of a letter dated 03.06.2008 sent by the Assistant Engineer of the Mallamoopampatty TNEB Office, Salem, to PW2, along with two earlier applications dated 03.06.2008 seeking service connection for welding works and lathe works. PW2 admitted to have concealed the details of the above two earlier applications made to the Board for a service connection at the same location during the year 2008. This aspect raises legitimate doubts about the conduct of the defacto complainant/PW2. 22. The trial court, after thoroughly analyzing the statement of PW1 to PW5, and taking into consideration the suppression of details and also disbelieving the evidence about the presence of PW5 at the place of occurrence, held that the demand had not been proved. The trial Court had disbelieved the alleged demands as projected by the prosecution. The trial Court, after having found that the demand has not been proved, taking into consideration the earlier decisions of the Hon'ble Apex Court (1.Krishna Ram vs. State of Rajastthan(AIR 2009 SC 2112) and 2. Narendra Champak Lal Trivedi Vs. State of Gujarat (2012 -7 – SCC 80) ), held that 22 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018in the absence of proof of demand of illegal gratification alleged to have been made by the accused, neither the statutory presumption envisaged under Section 20 of the Prevention of Corruption Act nor the factual presumption envisaged under Section 114(a) of the Evidence Act can be invoked in favour of the prosecution to drive home the charges for an offence under Section 7 and 13(1)(d) of the Prevention of Corruption Act.23. In this regard, it is useful to refer the judgment of the Hon'ble Apex Court rendered in N.Vijayakumar Vs. State of Tamil Nadu, reported in (2021) 3 SCC 687, wherein the Hon'ble Apex Court. after referring to its earlier decisions, had elaborately discussed the powers of the High Court in the Appeal against acquittal and the analysis of the view taken by the trial court, has held that 'in the absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. It is also held that even the presumption under Section 20 of the Act can be drawn only after the demand for and acceptance of illegal gratification is proved'23 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 201824. As stated above, in the case on hand, the trial Court after meticulous analysis of evidence both oral and documentary and by giving cogent reasons, held that PW2 and PW5 are wholly unreliable witnesses and also found that the demand, as alleged by the prosecution, has not been proved beyond all reasonable doubts and the foundational facts have not been proved by the prosecution and the explanation offered by the accused was probable.25. In this regard it is relevant to refer to the decision in P.Sathyanarayana Murthy vs. District Inspector of Police, State of AP reported in (2015) 10 SCC 152), wherein the Hon'ble Apex Court has held as under:- "26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam [MANU/SC/0564/2013 : (2013) 12 SCC 406 : (2014) 1 SCC (Cri) 677] had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible 24 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018surmise or conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 27.The materials on record when judged on the touchstone of the legal principles adumbrated herein above, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly unsafe to sustain the conviction of the appellant under Sections 13(1)(d) (i) and (ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds."26. The presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence is that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law. In the present case, the accused having secured her acquittal, the presumption of her innocence is further reinforced. This Court finds that the trial Court rightly observed that the prosecution has failed to prove its case beyond all reasonable doubts and found the accused not guilty of the offences registered against them. The view taken by the trial court is also a 25 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018probable and possible one. This court does not find any illegality or perversity in the view taken by the trial court.27. In the result the criminal appeal is dismissed. The judgment of the trial Court is confirmed insofar as the acquittal of A1/respondent herein is concerned. 20.02.2024 Internet: Yes/NoIndex :Yes/NoakTo1. Special Judge, Special Court for trial of Cases under the Prevention of Corruption Act), Salem. 2. The Inspector of Police, Vigilance and Anti-Corruption, Salem. 3. The Public Prosecutor, High Court, Madras.26 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018A.D.JAGADISH CHANDIRA, J.ak Criminal Appeal No.727 of 201820.02.202427

Crl.A.No.727 of 2018government, a Final report was filed against A-1 and A-2. The prosecution examined P.W.1 to P.W.17 and marked Ex. P1 to Ex.P26. Material objects 1 to 11 were also marked. A-1 examined herself as D.W.1 and marked Ex.D1. 2.6. The trial court found that there are glaring contradictions in the evidence of witnesses PW2 to PW5 and also found that PW 2 and PW5 are not wholly reliable witnesses, acquitted the accused in Special C.C.No.58 of 2014 by judgment dated 31.10.2017. The appeal has been filed by the respondent State against the judgment of acquittal of the accused.3. Assailing the judgment of acquittal, Mr.Santhosh learned Government Advocate (Crl. Side) submitted his arguments as under:-i) It is a clear case of demand of illegal gratification by A1 and A2. The 1st accused was working as Assistant Engineer (O & M) TNEB, Mallamoopampatty and the 2nd Accused was working as Assistant Executive Engineer in Swarnapuri TNEB Office, Salem. ii) The cogent evidence of the prosecution witnesses would prove that the defacto complainant (Ramamoorthy)/PW2, who is a businessman, had applied to the office of the 1st accused for an electricity service connection 4 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018for his unit and the 1st accused demanded a sum of Rs.25,000/- as illegal gratification from him for the same. Since the complainant expressed his inability, the 1st accused refused to receive the application despite several requests and again on 2-3-2009, the complainant attempted to present the application to the 1st accused at her office, but she refused to receive the same and directed him to meet the 2nd accused/Assistant Executive Engineer, Salem on the same day. When the complainant met the 2nd accused, he had demanded illegal gratification of Rs.27,000/- from the complainant and the complainant expressed his inability to pay and requested the registration of his application. Hence the application was registered on the same day by paying the necessary fees. Subsequently on 19-3-2009 at about 4:30 pm, the defacto complainant had contacted the 1st accused through phone, who had, in turn, instructed him to meet the 2nd accused at his office. Since the Complainant was engaged in other work, he sent PW-5/Balamurugan to meet the 2nd accused, where both the accused reiterated the demand. When PW-5 Balamuruagn expressed inability to pay, both the Accused insisted on paying at least Rs.5000/- as initial payment and thereby PW-5 informed the same to PW-2 Ramamurthy. Since PW-2 5 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018Ramamurthy was not inclined to pay the amount demanded by the accused, he preferred an oral complaint to DVAC, Namakkal on 20-3-2009 at 8.00 AM, which was reduced into a statement (Ex-P2) and subsequently an FIR in Crime number 4/AC/2009 was registered at 9.00 a.m., by PW-16 Paneerselavm (TLO) and after summoning of official witnesses PW-3 Kandhaswamy and PW4 Rajan. PW-16 after observing pre-trap formalities, prepared Entrustment Mahazar Ex-P6 and proceeded to the office of the accused laid trap seized the money arrested the accused and prepared Seizure Mahazar/Ex.P-9. Subsequently, the investigation was conducted by PW-17/ Periyasamy and the final report was filed against the accused and the case was taken up for trial. iii) The prosecution, by examining PWs.2, 3 and 5, categorically proved the pre-trap demand, the demand on the date of the trap and that the accused had received the amount and the phenolphthalein test conducted in the presence of PW3 and PW4 also proved positive. In such circumstances, the prosecution is entitled to presumption under Section 20 of the Prevention of Corruption Act and Section 114 (a) of the Evidence Act. The accused have not rebutted the presumption, however, the trial Court, taking 6 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018into consideration the minor contradictions in the evidence of the witnesses, had erroneously held that the demand had not been proved and acquitted the accused and thereby the order of the trial Court is without proper appreciation of evidence which is perverse and thereby seek to set aside the order of the trial Court.4. In reply, Mr.S.Karthikeyan, learned counsel appearing for the respondent/accused would submit his arguments as under:-i) The trial Court, after a threadbare analysis of the evidence of PW2 to PW5, found that PW2 and PW5 are not wholly reliable witnesses and the trial court has also found that PW2 has suppressed the earlier application submitted and to get the connections, had given a false complaint against the accused. ii) The trial Court also found that the demand made by the accused has not been proved beyond all reasonable doubts and further finding that except mere recovery, the foundational facts have not been proved by the prosecution, held that the prosecution is not entitled to seek benefit under Section 20 of Prevention of Corruption Act. 7 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018iii) The trial Court, placing reliance on Ex.D1, which contained the previous application of the complainant and consequent rejections, held that the statement of PW2 cannot be believed. Though the prosecution claims to have proved the recovery, the mere recovery itself cannot incriminate the accused unless the demand has been proved by the prosecution. iv) The trial court, after thoroughly analysing the evidence of key witnesses viz., PW2, PW3 and PW5, found that there were several material contradictions, improvements and embellishments and thereby discarded their evidence in respect of demand. v) The trial court, which had the benefit of seeing the demeanour of the witnesses, had also held that PW2 and PW5 are not “wholly reliable witnesses” that the complaint Ex.P2 was not genuine and that there is no iota of evidence on record to establish the initial and final demand. vi) Further A1, by confronting PW2 with Ex D1 at the time of cross-examining him and by examining herself as DW1 raised a probable defence stating that there was no demand and that the defacto complainant had applied for an industrial connection and since there was some technical problem on account of insufficient load, there had been delay and the 8 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018defacto complainant, who was desperate to have a service connection, had given a false complaint. vii) Further, the trial Court after analysis of the evidence of DW1, held that the defence of the accused is a probable and possible one, had acquitted the accused. The respondent/accused has proved innocence and the presumption of innocence is in favour of the accused and therefore the presumption of innocence gets bolstered when the case ends in acquittal. and in such circumstances, the well-reasoned order of acquittal cannot be set aside unless the view of the trial court is found to be perverse and thereby he would seek for dismissal of the appeal.5. Heard Mr S.Santhosh, learned Government Advocate (Crl. Side) appearing for the appellant/State and Mr. Karthikeyan, learned counsel appearing for the 1st accused. It is represented by the learned Government Advocate that the 2nd accused namely Senthilnathan, Assistant Executive Engineer, Salem had passed away pending appeal and therefore, the challenge in this appeal is only as against the acquittal of 1st Accused/respondent herein.9 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 20186. At the outset, before embarking on the rival contentions raised before this court, while dealing with a judgment of acquittal it is essential to keep in mind the well-settled principles of law that in the event of possibility of taking two views, this Court shall not interfere with a judgment of acquittal. At the same time, there cannot be any doubt that in the event of the court concluding that only one view is possible on the basis of the materials brought on record, a judgment of acquittal may be interfered with. 7. Further, before venturing into analysis and assessment of the entire evidence available on record, to appraise the reasons assigned by the trial Court in acquitting the accused, it is relevant to refer to a few decisions of the Honourable Apex Court in respect of the principles regarding the power of the appellate Court to interfere in an appeal against the judgment of acquittal.10 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 20188. In "Chandrappa v. State of Karnataka" MANU/SC/7108/2007 : ((2007) 4 SCC 415), the Hon'ble Supreme Court held that the appellate Court should not ordinarily interfere with a judgment of acquittal in a case where two views are possible even though the trial Court's view may not appear “more probable one” and further held as follows:"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal 11 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018against acquittal. Such phraseologies are more in the nature of"flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."9. In"Mrinal Das v. State of Tripura" MANU/SC/1030/2011 : (2011) 9 SCC 479, the Hon'ble Supreme Court has held that the appellate Court being the final Court of facts is fully competent to re-appreciate, 12 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018reconsider and review the evidence and take its own decision keeping in mind that the acquittal provides for a presumption in favour of the accused and also that if two reasonable views are possible on the basis of the evidence on record, the appellate Court should not disturb the findings of the trial Court. The appellate Court can also review the conclusions arrived at by the trial Court both on questions of fact and law and it is the duty of the appellate Court to marshal the entire evidence on record and only by giving cogent and adequate reasons, set aside the judgment of acquittal. Paragraph No. 8 of the aforesaid judgment is quoted hereunder for ready reference: "8. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words,law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in 13 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State,it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."10. In Sudershan Kumar Vs. State of Himachal Pradesh reported in 14 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018MANU/SC/1206/2014 :2014:INSC:889 : (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment, has held that it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.11. In Jafarudheen and others Vs. State of Kerala, reported in MANU/SC/0531/2022 : ((2022) 8 Supreme Court Cases 440), at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as under: " 25.While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only 15 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."12. The aforesaid view of the Hon'ble Supreme Court has been reiterated in numerous later decisions of the Hon'ble Supreme Court including the case in "Vijayakumar Vs. State of Tamil Nadu, (2021) 3 SCC 687; Ravi Sharma v. State (NCT of Delhi)" MANU/SC/0856/2022: 2022:INSC:699 : (2022) 8 SCC 536 and also in Roopwanti Vs. State of Haryana and others, reported in MANU/SC/0162/2023 :2023:INSC:157 :AIR 2023 SC 1199.13. In the case of an appeal against acquittal, this court is burdened with the task of finding outi. Whether the trial Court has properly appreciated the evidence on record.ii. Whether the findings or the reasoning of the trial Court acquitting the accused suffers from any illegality or perversity.iii. Whether the view taken by the trial Court acquitting the accused is a probable or possible view.16 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 201814. A perusal of the judgment would show that the trial Court, after careful analysis, found that the star witnesses PW2/defacto complainant and PW5/Balamurugan are wholly unreliable witnesses. The reasons for treating them as wholly unreliable witnesses have been set out in paragraphs 32 to 58 of the judgment.16. This Court has to re-appreciate and analyse the evidence to conclude as to whether the reasoning given by the trial court to disbelieve PW2 and PW5 and holding them to be wholly unreliable witnesses is on proper appreciation of evidence.17 . Now coming to the evidence of PW2 admittedly, it is the case of PW2/defacto complainant that 40 days before the occurrence, there was a demand by the accused and subsequently there were demands nearly 6 to 7 times before 02.03.2009. Further, as per PW2, there were also demands between 02.03.2009 and 19.03.2009 and also on the date of trap i.e.,on 20.03.2009. However, from Ex.D1 it is seen that PW2 had suppressed the 17 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018earlier application dated 03.06.2008. Ex.D1 had been tendered into evidence during the cross-examination of PW2. This would prove that the application dated 03.06.2008 seeking electricity connection got cancelled since PW2 had not rectified the defects pointed out in the letter of the AE and also for non-remittance of the additional deposit amount. The subsequent application was also for the same cause and a continuation of the earlier one and there is no mention of the same in the complaint Ex P2. This suppression speaks about the credibility of PW2. Further, in respect of the alleged telephonic conversations, the prosecution had examined PW14, the Legal Officer of Aircel, the service provider and marked the CDR particulars as Ex.P17. Even as per the CDR particulars, admittedly, excepting one call between A1 and PW2 on 12.03.2009, there is no other call and furthermore, since PW17 does not have any certification under Section 65B of the Indian Evidence Act, no reliance can also be placed on the same.18. Coming to the aspect of demand, the trial court had framed charges under Section 7 of the PC Act in respect of 18 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018(1) Demand of Rs.25000/= 40 days before 20.03.2009 by A1 at her office.(2) Subsequent reiteration on several occasions.(3) Demand of Rs 27000/= by A2 on 02.03.2009 from PW2 at Swarnapuri AE office in the presence of PW5. (4) Reiteration of demand by A1 and A2 to PW5 on 19.03.2009. In respect of the same, there had been several material contradictions in the evidence of PW2 and PW5 about the demand. The relationship between PW2 and PW5 was doubtful. Further, there is no mention in Ex P2 as to the place of receipt of the bribe amount; i.e., whether at the AE office at Mallamoopanpatty or the AEE's office at Swarnapuri Salem. There is no explanation as to how the place of the trap was fixed. The presence of PW5 at the time of trap is also doubtful. While it is the evidence of PW2 that he went along with the official witness in a two-wheeler, PW5 has deposed that he came in a separate two-wheeler. 19. The evidence of the prosecution witnesses being with such contradictions, the explanation of A1 seems to be more probable. A1 states that she had not demanded any illegal gratification from PW-2 19 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018Ramamurthy. The 1st Accused had processed the application given by PW2 Ramamurthy on 2-3-2009 and on perusal of files, she had found about the earlier application given by PW2 on 3-6-2008 and she had instructed PW2 to pursue the old application itself, which was not accepted by PW2 Ramamurthy. On scrutiny of the application, it was found that the application area is an industrial estate and adequate load was not available in the transformer and since enhancement was required, she prepared an estimate and submitted the same to the AEE office on 13-3-2009 itself, which was also informed to PW2 also. She had further asserted that she had not met PW2 or PW5 on 19-3-2009. On 20-3-2009, while she was on inspection along with the 2nd Accused, PW2 had called her at Noon and later at 1.30 pm also and later, after inspection, when she and the 2nd Accused were sitting in the office and going through the files, PW2 came and enquired about the connection, for which she had answered that it would take 60 days and was was continuing her work, whileso, she saw money scattered on the table and on the floor and when she and A-2 started collecting the same, DVAC officials came and later what happened are in the case. Further, this fact is strengthened by the evidence of PW-6 and 20 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018PW-7, who are employees of TNEB. As per their evidence, they were present at the scene of the Trap and they left when told by TLO, but conspicuously they did not speak about the payment of money.20. From an overall analysis, it is seen that the evidence adduced by the prosecution witnesses especially, by P.Ws.2 to 5, is is not only glaring and incompatible but also with material contradictions with the contents of the complainant's statement (Ex.P2). Further, the recitals in Ex.D2 discloses a completely different case. Additionally, there are glaring contradictions in PW2's evidence regarding the relationship between the complainant and PW5. The trial Court also considered the fact that although PW2 was allotted a plot for industrial purposes, he did not comply with the allotment conditions, leading to a risk of cancellation and there was a desperate need for him to obtain the connection at any cost. 21. The trial Court had also taken into consideration the contradictions, discrepancies, improvements and embellishments in the evidence of PW2, PW3 and PW5. Further during the cross-examination of 21 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018PW2, the counsel for A1 had confronted him by producing Ex.D1, which are attested copies of a letter dated 03.06.2008 sent by the Assistant Engineer of the Mallamoopampatty TNEB Office, Salem, to PW2, along with two earlier applications dated 03.06.2008 seeking service connection for welding works and lathe works. PW2 admitted to have concealed the details of the above two earlier applications made to the Board for a service connection at the same location during the year 2008. This aspect raises legitimate doubts about the conduct of the defacto complainant/PW2. 22. The trial court, after thoroughly analyzing the statement of PW1 to PW5, and taking into consideration the suppression of details and also disbelieving the evidence about the presence of PW5 at the place of occurrence, held that the demand had not been proved. The trial Court had disbelieved the alleged demands as projected by the prosecution. The trial Court, after having found that the demand has not been proved, taking into consideration the earlier decisions of the Hon'ble Apex Court (1.Krishna Ram vs. State of Rajastthan(AIR 2009 SC 2112) and 2. Narendra Champak Lal Trivedi Vs. State of Gujarat (2012 -7 – SCC 80) ), held that 22 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018in the absence of proof of demand of illegal gratification alleged to have been made by the accused, neither the statutory presumption envisaged under Section 20 of the Prevention of Corruption Act nor the factual presumption envisaged under Section 114(a) of the Evidence Act can be invoked in favour of the prosecution to drive home the charges for an offence under Section 7 and 13(1)(d) of the Prevention of Corruption Act.23. In this regard, it is useful to refer the judgment of the Hon'ble Apex Court rendered in N.Vijayakumar Vs. State of Tamil Nadu, reported in (2021) 3 SCC 687, wherein the Hon'ble Apex Court. after referring to its earlier decisions, had elaborately discussed the powers of the High Court in the Appeal against acquittal and the analysis of the view taken by the trial court, has held that 'in the absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. It is also held that even the presumption under Section 20 of the Act can be drawn only after the demand for and acceptance of illegal gratification is proved'23 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 201824. As stated above, in the case on hand, the trial Court after meticulous analysis of evidence both oral and documentary and by giving cogent reasons, held that PW2 and PW5 are wholly unreliable witnesses and also found that the demand, as alleged by the prosecution, has not been proved beyond all reasonable doubts and the foundational facts have not been proved by the prosecution and the explanation offered by the accused was probable.25. In this regard it is relevant to refer to the decision in P.Sathyanarayana Murthy vs. District Inspector of Police, State of AP reported in (2015) 10 SCC 152), wherein the Hon'ble Apex Court has held as under:- "26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam [MANU/SC/0564/2013 : (2013) 12 SCC 406 : (2014) 1 SCC (Cri) 677] had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible 24 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018surmise or conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 27.The materials on record when judged on the touchstone of the legal principles adumbrated herein above, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly unsafe to sustain the conviction of the appellant under Sections 13(1)(d) (i) and (ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds."26. The presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence is that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law. In the present case, the accused having secured her acquittal, the presumption of her innocence is further reinforced. This Court finds that the trial Court rightly observed that the prosecution has failed to prove its case beyond all reasonable doubts and found the accused not guilty of the offences registered against them. The view taken by the trial court is also a 25 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018probable and possible one. This court does not find any illegality or perversity in the view taken by the trial court.27. In the result the criminal appeal is dismissed. The judgment of the trial Court is confirmed insofar as the acquittal of A1/respondent herein is concerned. 20.02.2024 Internet: Yes/NoIndex :Yes/NoakTo1. Special Judge, Special Court for trial of Cases under the Prevention of Corruption Act), Salem. 2. The Inspector of Police, Vigilance and Anti-Corruption, Salem. 3. The Public Prosecutor, High Court, Madras.26 https://www.mhc.tn.gov.in/judis Crl.A.No.727 of 2018A.D.JAGADISH CHANDIRA, J.ak Criminal Appeal No.727 of 201820.02.202427