CRL A/49/2020 of R.GOVINDHARAJ Vs THE STATE REPRESENTED BY on 16 October 2026

JUDGMENT

The appellant is the sole accused in Special Case No.47 of 2014 on the file of the Special Court for Prevention of Corruption Act Cases, Villupuram. By Judgment dated 21.01.2020, the learned Special Judge found him guilty and sentenced to undergo four years Rigorous Imprisonment and to pay a fine of Rs.5,000/-, in default to undergo six months Simple Imprisonment, for the offence under Section 7 of the Prevention of Corruption Act, 1988 ("the Act"), and to undergo three years Rigorous Imprisonment and to pay a fine of Rs.5,000/-, in default to undergo six months Simple Imprisonment, for the offence under Section 13(2) read with Section 13(1)(d) of the Act. The sentences of imprisonment were ordered to run concurrently.

2. The case of the prosecution is as follows:-

(i) . The appellant was working as Commercial Inspector in the office of the Assistant Engineer, TNEB (North), Kallakurichi, Kallakurichi Taluk, Villupuram District, from 11.07.2007 to 01.02.2010 and is a public servant within the meaning of Section 2(c) of the Act. His duty was to inspect the site on an application for a new service connection and prepare estimate.

(ii) P.W.2, defacto complainant, applied for a domestic service connection for a house he proposed to construct. On 21.11.2009, the appellant inspected the site, found that five poles required, prepared the estimate and collected Rs.50/- as registration fee (Ex.P9). P.W.3,

Assistant Executive Engineer, sanctioned the estimate on 11.12.2009. P.W.2 remitted the demand notice amount of Rs.1,550/- on 15.12.2009 (Ex.P10). The work order was issued on 06.01.2010 and, according to the prosecution, received in the Kallakurichi North office only on 25.01.2010.

(iii) . P.W.2 deposed that on 29.01.2010, appellant met him in Kallakurichi market, told him that connection sanctioned and asked him to come to the office the next day; that on 30.01.2010 the appellant informed connection can be arranged within a week and demanded Rs.2,500/- for himself and for the labourers who would erect the poles.

(iv) Not willing to pay, he lodged a complaint (Ex.P11) to the Vigilance and Anti-Corruption wing, Villupuram on 01.02.2010. A trap laid by PW13, Inspector of Police, P.W.2 and the shadow witness (P.W.12), a Junior Assistant in the Labour Department, entered the office of the appellant at about 3.25 / 3.30 p.m. According to the prosecution, the appellant asked whether P.W.2 brought the money he demanded, received the phenolphthalein smeared notes with his right hand, counted them with both hands, kept them in the table drawer and assured that connection would be given within a week. On the pre-arranged signal, the trap party entered, the sodium carbonate test on both hands of the appellant turned the solution pink, and the appellant produced the currency notes from the table drawer, which tallied with the entrustment mahazar (Ex.P13). Ex.P33 to Ex.P36 are the seizure mahazar, observation mahazar, rough sketch and house search list.

3. On completion of investigation, P.W.15, the successor Investigation Officer, after obtaining Ex.P1. Sanction from P.W.1, filed final report for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Act.

4. The Special Court framed charges under Section 7 and Section 13(2) read with Section 13(1)(d) of the Act. The accused denied the charges. The prosecution examined fifteen witnesses (P.W.1 to P.W.15), marked forty-five exhibits (Ex.P1 to Ex.P45) and produced two material objects, M.O.1 (the trap cash of Rs.2,500/-) and M.O.2 (the bottle containing the solution in which the fingers were dipped). When questioned under Section 313 Cr.P.C. the accused denied the incriminating circumstances. No witness was examined on the side of the defence.

5. The Special Court held that the sanction (Ex.P1) was valid. On merits it held that (i) P.W.2, though he departed from his chief examination in the cross-examination recorded after seven years, could not be wholly discarded; (ii) P.W.12 and P.W.6 corroborated the receipt of the money and its production from the table drawer; (iii)

the chronology of events, namely the knowledge of the appellant about the work order received on 25.01.2010 and his meeting with P.W.2 on 29.01.2010, showed that the demand was made and that the testimony of P.W.2 was believable; (iv) once demand, acceptance and recovery were established the presumption under Section 20 of the Act arose and the appellant not rebutted it; and (v) the contention that no official favour was pending with the appellant was not a good defence. On that basis the appellant was convicted and sentenced as stated above.

6. Mr.V.R.Balasubramaniam, learned counsel for the appellant, submitted that the prosecution has failed to prove the foundational fact of demand, which is the sine qua non for both the offences. He submitted that P.W.2, the only witness to the alleged demand, has categorically deposed in his cross-examination that appellant did not demand any money, that he himself decided to pay the money in the belief that the work would be done only if a bribe was paid, and that he lodged the complaint out of a grudge against the appellant, whom he wrongly blamed for the delay in the service connection. The shadow witness, P.W.12, stood six to ten feet away and could not hear what was spoken. P.W.12 deposed that money was recovered from the shirt pocket of the appellant and that the table had no drawer, whereas P.W.6 and P.W.13 spoke of the table drawer. The estimate preparation work of the appellant completed on 21.11.2009, the estimate was sanctioned and the work order passed by the superior officers before the complaint, and no official work or favour pending with him on the date of trap and the trap laying officer admits. The Special Court, according to the learned counsel, accepted the version of the complainant in his chief examination, which is on surmises, and drawn an inference of demand from a chronology which does not exclude other explanations and wrongly shifted the burden on the appellant by invoking Section 20 of the Act. Hence, the learned counsel prayer for acquittal of the accused.

7. Mr.Leonard Arul Joseph Selvam, learned Additional Public Prosecutor, supported the judgment of the Special Court. He submitted that P.W.2 and P.W.12 supported the prosecution in their chief examination; and their cross-examination took place seven and four years later, hence the the departure, from the earlier version was expected to happen; the Special Court was right in testing both versions against the other evidence; P.W.6, an official from the same office, independently deposed handing over something to the appellant and production of the money from the table drawer proving recovery, the positive chemical test are beyond dispute, since the complainant could have come to know of sanction of the connection only through the appellant, the chronology establishes the demand. He added that a hostile witness is not to be rejected in toto and that, the foundational facts having been proved, the presumption under

Section 20 of the Act operated against the appellant. Hence, he prayed for dismissal of the appeal

8. I have heard the learned counsel on either side and have carefully gone through the records, including the evidence of the witnesses and the exhibits. Being the statutory appeal against a conviction, this Court is bound to re-appreciate the entire evidence and to arrive at its own conclusion.

9. The points that arise that for consideration before this Court are.

(a) whether the prosecution has proved beyond reasonable doubt that the appellant demanded illegal gratification from P.W.2; (b) whether the acceptance and recovery of the tainted money, as proved, can by themselves sustain the conviction, and whether the presumption under Section 20 of the Act arises; and

(c) whether the judgment of the Special Court calls for interference.

10. In view of the conclusion on merits, this Court does not consider it necessary to examine the challenge to the validity of the sanction (Ex.P1) and leaves that question open.

11. To establish an offence under Section 7, and equally under Section 13(1)(d) read with Section 13(2) of the Act, as it stood on the date of the occurrence, the prosecution has to prove, first, the demand of illegal gratification and, next, its acceptance. Proof of demand is indispensable. The mere possession or recovery of currency notes from the accused, without proof of demand, is not sufficient to establish the offence, and the presumption under Section 20 of the Act can be drawn only after the foundational facts of demand and acceptance have been proved.

12. The Constitution Bench in Neeraj Dutta v. State (Government of NCT of Delhi), (2023) 4 SCC 731, has clarified that where the complainant turns hostile or is not available, the demand and acceptance may be proved by other direct evidence, oral or documentary, or by circumstantial evidence. At the same time, the Constitution Bench reiterated that demand and acceptance remain facts to be proved by the prosecution, that the inference must be a legally sustainable deduction from proved facts and not a conjecture, and that mere recovery cannot substitute proof of demand. Where the bribe-giver is alleged to have made a voluntary offer, which the public servant accepted knowing it to be a reward for an official act, the prosecution must prove such offer and the acceptance with knowledge.

13. It is equally settled that the evidence of a witness who resiles from his earlier statement is not to be rejected as a whole merely for that reason, and the Court may act on that part of the testimony which is found to be credible and is corroborated. [Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389. The Court is, however, bound to consider the whole of the evidence, including the part that favours the accused. The question is whether, having regard to all the evidence, the prosecution has proved its case beyond reasonable doubt. The presumption under Section 20, once raised, is rebuttable and the accused need discharge the burden only on the preponderance of probabilities; the accused can do so through the prosecution evidence itself.

14. Further, direct evidence of demand has to come from P.W.2. In his chief examination, recorded on 04.06.2012, P.W.2 supported the prosecution case. He was cross-examined by the defence only on 30.09.2019. In that cross-examination, as recorded in paragraph 17 of the judgment of the Special Court, he deposed that he was not aware whether seven or eight others were ahead of him in the queue for service connection; that it was true that the poles standing near his house had been removed at the instance of the officers and that there was delay in giving service connection and the delay made him angry against the appellant; out of that anger, he lodged a complaint. P.W.2 reiterate and confirm he alone went inside the office and the shadow witness stood at the entrance; that he enquired the appellant when his connection would be given and gave the application together with the money, and that he himself decided to give the bribe, thinking that the work would be done only if money paid. He did not remember by which hand appellant took what he gave and where he kept it.

15. Thus, in the sworn testimony of the very person who set the law in motion, there is no demand by the appellant at any stage, whether on 30.01.2010 or on 01.02.2010; on the contrary, there is an assertion that the complaint was motivated with a grudge, and that the money was tendered on his own volition. The Special Court did not disbelieve this version in its content that was inherently improbable. It rejected the cross-examination on the footing that the deviation "was not true and not fitted within the facts of the case", and on the surmise that, in the seven years that passed since the chief examination, "the accused and the PW2 would have been settled in friendly manner". There is not an iota of evidence on record that the complainant and the appellant ever came to terms, or that cross-examination was a product of any such settlement. A finding that a witness has been won over cannot rest on speculation.

16. The Special Court considered that it was bound to prefer the chief examination because the cross-examination was recorded after several years. Passage of time cannot by itself justify preferring one version of the same witness over the other; the delay in cross- examination is, if anything, a circumstance for care in appreciating the chief examination, which had gone untested for years. The cross- examination was not shown to be tutored. The grudge spoken to by P.W.2 is not an invention; it finds support in the prosecution evidence itself. P.W.5, the Assistant Engineer, deposed that on 15.12.2009 P.W.2 came to her complaining that he was not being informed the status of his application, that the appellant did not respond properly when asked, and that she herself had to call the office of the Assistant Executive Engineer for information. She also deposed that service connection not given to the complainant in time because no poles available and allotted to her office. A man who believed, albeit wrongly, that the delay in his connection attributable to the appellant, is a witness whose complaint cannot be accepted without searching scrutiny, and the cross-examination of P.W.2, whatever else may be said of it, is at the very least consistent with the documentary record.

17. P.W.12, the shadow witness, deposed in the chief examination of the appellant asking P.W.2 whether he brought Rs.2,500/- he had demanded. In his cross-examination of 16.09.2019, he deposed that he followed P.W.2 at a distance of about one metre and then added that he was standing six to ten feet away and that he could not hear what was spoken between them; that there were other persons, including a Government servant, in the room; that the appellant did not take any money; that the money recovered from the shirt pocket of the appellant; and that there was no drawer in the table. A shadow witness is the one who must overhear the demand.

P.W.12 did not. Giving the prosecution the full benefit of his chief examination, it is the statement of a witness who stood at some distance, a Junior Assistant of another department deputed at the request of the Trap Laying Officer, and it is, in the very same breath, contradicted by his own later evidence as to what he could hear. The Special Court castigated P.W.12 as having "partly turned hostile", yet used his chief examination, which is no more than a repetition of what P.W.2 had said at the first instance, as independent corroboration of the demand. Corroboration of the demand cannot be found in a witness who could not hear the conversation between PW2 and the appellants.

18. P.W.6, a Helper from the same office, is the only other person said to have been present. His evidence is that on returning from lunch at about 3.00 p.m. he saw the complainant and the appellant talking to each other and heard the complainant say that something was to be given to the appellant; that thereafter he left; and that later the appellant took the money out of the table drawer and produced it to the police. This witness did not hear any demand either. His evidence goes to the receipt of something and to the later production of the money, and nothing more. The evidence of P.W.13, the Trap Laying Officer, and of the Investigating Officers is, as regards the demand, a hearsay, based on what P.W.2 and P.W.12 told them after the event. The material before this Court shows, further, that the narration of P.W.13 in the judgment of the Special Court is that the complaint which was lodged on 01.02.2010 spoke of a demand of Rs.1,500/-, whereas the prosecution case throughout was a demand of Rs.2,500/-. That discrepancy has gone unexplained and has not been adverted to by the Special Court.

19. The Special Court, realising that there was no direct evidence of demand, but chronology of events proved it. The reasoning is that the work order was received in the Kallakurichi North office on 25.01.2010; that P.W.2 did not know about it and no communication was sent to him; that the appellant alone could have told him on 29.01.2010 of the work sanction; and that the complaint, therefore, cannot be false. This inference, cannot be sustained, for the following reasons.

(i) The very first link of the chain, namely that the appellant met P.W.2 on 29.01.2010 in the market and asked him to come to the office the next day, rests exclusively on the chief examination of P.W.2, which he disowned in the cross-examination. A circumstance that depends entirely on the testimony of a witness whose reliability is in doubt cannot be used to prove that very witness reliable.

(ii) The finding that P.W.2 could have learnt of work sanction only from the appellant is contrary to the evidence of the prosecution. The work sanction estimate is dated 11.12.2009 and P.W.5 deposed that, on 15.12.2009, she asked the appellant to prepare the demand notice since work sanction already accorded, and P.W.2 remitted Rs.1,550/- on the same day (Ex.P10 and Ex.P21).

P.W.2 therefore knew even in December 2009 that his work estimate sanctioned. The date 25.01.2010, on which the work order was received in the local office, is the only date on which the Special Court places reliance and weight. That the accused knew the date of sanction and might have mentioned it to P.W.2 does not mean that a demand was made.

(iii) Even if it be taken that the appellant met P.W.2 on 29.01.2010 and informed that the work had advanced is an act that is consistent with ordinary official courtesy. A circumstance susceptible of two inferences does not prove the demand beyond reasonable doubt.

(iv) The Special Court itself found that no official favour was pending with the appellant. His role stopped with the preparation of work estimate, as P.W.1 and P.W.5 have said. The work order was passed by P.W.3 and the poles were to be supplied by a different office. The Trap Laying Officer (P.W.13) admitted that no official work or favour, pending on the date of trap. The prosecution case that the appellant, at that stage, undertook to arrange the connection within a week and demanded Rs.2,500/- is not supported by any independent circumstance, and the improbability of a demand by a person who had nothing left to do is a legitimate circumstance, though not by itself decisive, for weighing the complainant's later version that he paid out of his own belief that no work would be done without a bribe.

20. The contention of the learned Additional Public Prosecutor that Section 7, as it then stood, did not require that the accused should have the authority to do the official act demanded, and that it is enough that he held himself out as able to do it, is not disputed. This Court has not decided the case on the footing that the appellant lacked authority. The point is that even on the widest reading of the law, the demand itself has to be proved, and the evidence on this is lacking. It is also not necessary, in the view this Court takes, to examine the argument that the non-examination of three members of the public present near the entrance, as admitted by P.W.12, is fatal. The trial Court's own reasoning three persons present near the entrance, might not have heared the conversation and demand is its own observation without materials.

21. The Special Court observed that corruption is an evil which retards the progress of the nation and that Courts are obliged to find the truth in the evidence rather than label the witnesses as hostile and unbelievable. The anxiety is shared by this Court. But the gravity of the evil cannot lower the standard of proof. A conviction under the Act carries the loss of livelihood, liberty and reputation of a public servant, and the Court must be satisfied beyond reasonable doubt on legally admissible evidence that the offence has been committed. The Court has, in the case on hand, no reliable evidence of demand on which to rest such a finding.

22. The Special Court held that the receipt of the money by the appellant and its production from the table drawer were proved through P.W.2, P.W.6 and P.W.13, notwithstanding the departure of P.W.12 on the place of recovery. Even if this finding is accepted in its entirety, and this Court does not find it necessary to resolve whether the money was found in the shirt pocket or in the table drawer, the chemical test and the recovery establish only that the appellant handled the tainted currency. Handling of currency notes is equally consistent with the version of P.W.2 that he handed over the money along with the application on his own volition. The acceptance of gratification, as an element of the offence, requires that it be received as a motive or reward for doing or forbearing to do an official act, and with knowledge that it is so offered. The testimony of the witnesses of the trap does not say what the appellant said or knew at the time. P.W.12 could not hear, P.W.6 does not say that the appellant understood the money to be a bribe, and P.W.2 deposed that no demand made. Therefore, the prosecution has not established acceptance with knowledge, and in any event that was not the case on which the charge was framed, which was one of demand and acceptance.

23. As regards the presumption, the Special Court observed that, when the core facts are proved it is for the accused to explain how the money came into his possession and discharge the presumption available under Section 20 of the Act, and that the defence of the accused was whittled down by the prosecution evidence. The presumption under Section 20 is not available unless the foundational fact of acceptance of gratification, with proof of demand established. Since the demand not proved, the presumption never arose. Even otherwise, the explanation emerging from the prosecution's own witness, that the money given by him on his own accord out of a mistaken belief for the delay in estimation work is a probable explanation which tested on the standard of preponderance of probabilities, is sufficient to rebut the presumption. The approach of the Special Court, which required the accused to disprove the case when the prosecution evidence on demand is doubtful, amounts to a reversal of the burden of proof. Further, it is proved by the documents that the expected work of the appellant already completed well before the date of compalint and trap.

24. The evidence regarding the demand, which is the very foundation of the prosecution, is the uncorroborated chief examination of the complainant that he himself resiled from, supported by a shadow witness, who could not hear the conversation, and by an inference from circumstances that is neither compelled by nor consistent only with the guilt of the accused. Where the evidence lead to two reasonable views, the one favourable to the accused must be accepted. The conviction under Section 7 of the Act cannot be sustained. As the offence under Section 13(1)(d) read with Section

13(2) of the Act, as it stood on the date of the occurrence, likewise requires obtaining of a pecuniary advantage by corrupt or illegal means or by abuse of position, which in this case is again dependent on the very same demand, it cannot be sustained. The prosecution has failed to prove the guilt of the appellant beyond reasonable doubt and the appellant is entitled to the benefit of doubt.

25. In the result, this Criminal Appeal is allowed and the judgment of conviction and sentence dated 21.01.2020 passed in Special Case No.47 of 2014 by the Special Court for Prevention of Corruption Act Cases, Villupuram, is set aside. The appellant is acquitted of all the charges. The fine amount paid by the appellant shall be refunded to him. The bail bond, if any, executed by the appellant shall stand cancelled. 16.10.2026 Index : Yes / No Internet : Yes / No MPK

To

1. The Special Court for Prevention of Corruption Act Cases, Villupuram.

2. The Inspector of Police, Vigilance and Anti-Corruption, Villupuram District.

3. The Public Prosecutor, High Court, Madras.

M.NIRMAL KUMAR, J. mpk Pre-Delivery Judgment made in CRL.A.No.49 of 2020

16.10.2026