CRL A/705/2023 of K.VISWANATHAN Vs DEPUTY SUPERINTENDENT OF POLICE on 16 October 2026

JUDGMENT

The appellant, the sole accused in C.C.No.37 of 2015, was convicted by Judgment dated 12.06.2023 of the learned Chief Judicial Magistrate / Special Judge, Erode. He was sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.5,000/-, in default simple imprisonment for one month, for the offence under Section 7 of the Prevention of Corruption Act, 1988 ("the Act"), and to Rigorous Imprisonment for three years and a fine of Rs.5,000/-, in default simple imprisonment for one month, for the offence under Section 13(2) read with Section 13(1)(d) of the Act. The sentences of imprisonment were directed to run concurrently. Aggrieved by the conviction and sentence, the accused has preferred this appeal.

2. The case of the prosecution, in brief, is as follows:

(a) The de facto complainant, Mr.G.Ragunathan (PW.1), a welder residing at Thamaraipalayam, Erode District, applied to the Assistant Engineer, TNEB (O&M), Thamaraipalayam, for a new service connection to his house. The appellant, K.Viswanathan, was then a Foreman (Grade-I) in the same section and is admittedly a public servant.

(b) It is alleged that on 18.01.2011 the appellant visited PW.1's house, said that a new electric post had to be erected for which Rs.1,550/- was payable to the Board, and demanded Rs.1,000/-, as illegal gratification for arranging the post, fixing the meter and giving the connection. PW.1 paid Rs.1,550/- at the office on 07.02.2011. The post was erected by Board staff, with PW.1 arranging a tractor, on 11.02.2011. The appellant said to have reiterated the demand on 08.02.2011 and told PW.1 that the meter would not be fixed until the money paid. On 14.02.2011 he said to have visited PW.1's house at about 08.30 hours, told PW.1's wife (PW.8) the same, and repeated the demand to PW.1 at about 17.00 hours.

(c) PW.1, unwilling to pay, gave a complaint (Ex.P.3) on 15.02.2011 at about 08.00 hours to the Inspector of Police, Vigilance and

Anti-Corruption,

Erode.

(PW.10),

who

registered Cr.No.3/AC/2011/ER (Ex.P.19). Two Government officials, Mr.Selvaraj (PW.2) and one Rajaram, were deputed as official witnesses. Six currency notes totalling Rs.1,000/- were smeared with phenolphthalein powder, their numbers noted in the entrustment mahazar (Ex.P.5), and handed to PW.1 with instructions to pay only on demand and to give a signal by combing his hair.

(d) In the afternoon the trap party went to the Thamaraipalayam TNEB office, but the appellant was absent. After several telephone calls, the appellant said to have asked PW.1 to come to the Ganapathipalayam bus stop. There, at about 06.00 p.m., the appellant demanded the money, taken it with his right hand, counted it with both hands and kept it in his left shirt pocket. PW.1

gave the signal at about 06.05 p.m. The appellant was taken to the TNEB office at Thamaraipalayam, where the sodium carbonate hand- wash of both hands turned pink; the notes were produced and their numbers tallied. Hand-wash solutions and the shirt were seized as M.O.2 to M.O.5; the notes are M.O.1.

(e) After investigation, and after sanction (Ex.P.23) obtained from the Superintendent Engineer, TNEB, Mr.N.Vadivelu (since deceased), final report filed on 18.05.2015 for offences under Sections 7 and 13(2) r/w 13(1)(d) of the Act.

3. The prosecution examined PW.1 to PW.12, marked Ex.P.1 to Ex.P.23 and M.O.1 to M.O.5. The appellant, questioned under Section 313 Cr.P.C., denied the incriminating circumstances as false. He examined one Jeganathan, a priest of the Vinayagar temple at Ganapathipalayam Four Roads, as D.W.1. No document was marked for the defence.

4. The trial Court held that (i) the appellant is a public servant and Ex.P.23 is a valid sanction proved through PW.11; (ii) the demand was proved by PW.1, corroborated by PW.8 and PW.2; (iii) acceptance and recovery were proved by PW.1, PW.2 and PW.10 and the positive phenolphthalein test; (iv) the presumption under Section 20 of the Act arose and was not rebutted, the evidence of D.W.1 being found unbelievable and uncorroborated; and (v) the contradictions pointed out by the defence were minor. The appellant was convicted accordingly.

5. Mr. T. Gowthaman, learned Senior Counsel for the appellant, submitted that Ex.P.23 itself bears the description "model sanction order". The sanctioning authority died before he could be examined. PW.11, who spoke for him, admitted that he initialled the sanction before it signed, yet his initial is absent on the original. The documents were handed to the Superintendent Engineer on 06.02.2012, the very date on which Ex.P.23 is dated, and the Investigating Officer says he received the sanction only on 22.06.2012. There is no real proof of application of mind. Further, prosecution rests on PW.1, who is interested, and his wife PW.8, a motive of enmity with the Chairman of the Vellottamparapu panchayat suggested. The dates of the alleged demands vary from witness to witness and the trial Court itself stitched them together. The complaint was given almost four weeks after the first alleged demand.

6. The learned counsel for the appellant would submit that the appellant, a Foreman, no authority to sanction the electricity service connection or installation of post. Ex.P.9, the work order issued by the Department, and PW.4 handed over the test report on the very day of the trap on the appellant's phone instruction, which is inconsistent with any refusal to proceed without payment. The learned counsel further submitted that PW.1 gave contradictory versions of how he reached the bus stop. The said Rajaram, the second official witness, not examined; PW.1 was in repeated telephone contact with a third number said to be of a Vigilance constable; the two-wheeler said to have been used by the appellant never seized; PW.4 said money was recovered before the phenolphthalein test, and PW.2 said in cross-examination that the test was done at Ganapathipalayam; and the appellant's custodial "admission" is inadmissible. The trial Court shifted the burden by insisting that the accused lead evidence beyond explanation, and rejected D.W.1 on conjecture.

7. Mr.S.Udayakumar, learned Government Advocate (Crl. side), submitted that demand, acceptance and recovery stand proved by the consistent evidence of PW.1, PW.2, PW.8 and PW.10, supported by the call records (Ex.P.18) and the positive hand-wash. PW.3 deposed that the Foreman is only authorised to fix the meter. The sanction for prosecution proved by producing the original with the supporting evidence. The contradictions are minor. The statutory presumption arose and the defence of D.W.1, who is a villager known to the appellant, is an afterthought; and that the sentence is lenient. He prayed that the appeal be dismissed.

8. I have heard both sides and gone through the judgment of the trial Court and the records.

9. The points that arise are:

(i) Whether the sanction for prosecution has been satisfactorily proved?

(ii) Whether the prosecution has proved beyond reasonable doubt that the appellant demanded illegal gratification?

(iii) Whether acceptance has been proved so that the presumption under Section 20 of the Act could arise, and if so, whether it has been rebutted?

(iv) Whether the conviction can be sustained?

10. This is a Statutory appeal against conviction. This Court is entitled, and bound, to re-appreciate the evidence and to reach its own conclusions, giving due weight to the trial Court's advantage of seeing the witnesses. The offence is alleged between January and February 2011, so Section 7 and Section 13(1)(d) of the Act apply as they then stood.

11. Demand of illegal gratification is the sine qua non of an offence under Sections 7 and 13(1)(d). Mere possession or recovery of tainted currency, without proof of demand and voluntary acceptance, does not constitute the offence and both must be proved, whether by direct or circumstantial evidence, before presumption under Section 20 can be raised. The presumption is rebuttable, and the accused need only to displace it by preponderance of probabilities, which he may do by cross-examination, by the prosecution's own material, or by defence evidence, and not necessarily by leading evidence. Section 20 by its terms applies to offences under Section 7 and Section 13(1)(a) and (b); it does not extend to Section 13(1)(d).

12. The prosecution must establish that a valid sanction was granted by the competent authority after the entire relevant material placed before him and he applied his mind to it. That the Superintendent Engineer was competent to remove the appellant spoken to by PW.11 and is not seriously disputed. The proof of application of mind, however, is not free from mystery and doubt. First, Ex.P.23 on its face is described as a "model sanction order". The trial Court brushed aside this by observing that there is no material that the prosecution supplied a model. That is not an answer. The description appears on the document itself, and the natural inference is that the draft originated from the investigating agency. Secondly, PW.11 is an Administrative Supervisor who says the authority dictated the order to a typist in his presence. He admits putting his initial on the sanction before signature, but the original does not bear it. The explanation that the initial is on the office copy leaves unexplained why absent in original, further no other materials produced to substantiate the claim. Thirdly, the exhibit list gives the date of Ex.P.23 as 06.02.2012, the same day on which, according to PW.11, the Deputy Superintendent of Police handed over the entire case file to the Superintendent Engineer, whereas the Deputy Superintendent of Police (PW.12) records received the sanction order

only on 22.06.2012. A sanction dated on the day the voluminous records are delivered, and received months later, calls for a convincing explanation, when and how the file was examined. The trial Court neither noticed nor explained these features.

13. Section 19(3) of the Act and Section 465 Cr.P.C. caution against upsetting a trial for errors of sanction unless a failure of justice has resulted. Since, for the reasons below, the appeal must succeed on merits, I do not find it necessary to hold the proceedings void on this ground. I record, however, that the prosecution has not discharged its burden of proving a valid sanction beyond doubt, and that the circumstances above add to the doubts on the prosecution case. The alleged demands from 18.01.2011 to 14.02.2011 rest on PW.1, supported by PW.8. A comparison of the accounts as recorded by the trial Court shows that they cannot safely be reconciled. Ex.P1, the application, bears the date 10.12.2010 in the exhibit list, whereas the prosecution narrative is that the application was made on 14.01.2011. The estimate (Ex.P.7) is dated 19.01.2011 and the work order (Ex.P.9) 08.02.2011. The sequence of the application and the alleged demand is thus not firmly established.

14. Further, PW.8 is the wife of the complainant and cannot be called independent. The defence suggested that the complaint was engineered through her by the Chairman of the Vellottamparapu panchayat, with whom the appellant had enmity, and that political persons induced the case. Though the trial Court recorded this plea twice but never decided it. It was a plea which a Court was bound to weigh when the case on demand turned entirely on the couple's evidence. Quite apart from the contradictions, the conduct of the parties on the prosecution's own showing is not consistent with a demand accompanied by obstruction. PW.1 paid the official fee of Rs.1,550/- on 07.02.2011, and the Board's staff, not the appellant, thereafter issued the work order and erected the post on 12.02.2011, all without any gratification having been paid. On the day of the trap, according to PW.4, the staff member telephoned the appellant, and on his instructions handed the test report to PW.1 and directed him to obtain the signatures of the Executive Officer and the contractor. That is inconsistent with the case that the appellant had resolved to stall the connection until paid. The appellant's contention that the pole and the work order were matters for another officer was dismissed by the trial Court on the footing that his visit to the house was unexplained that again shifted the burden.

15. The only material on demand on 15.02.2011 is the evidence of PW.1 and PW.2. The trial Court held that the contradictions pointed out were minor. A closer look shows otherwise. PW.1, in chief, said that he went to the bus stop in the Vigilance vehicle, but in cross-examination said he went by bus. PW.2 and PW.10 say they went in the Government vehicle. A complainant who cannot give a consistent account of how he reached the very place of the trap, with the trap party, hours after entrustment, is not a witness whose bare word on what was said at the spot can be accepted without independent support. Ex.P.18, call details show contact between PW.1's number and the appellant's number at 04:07, 04:56, 05:14 and 05:48 p.m. They also show, as recorded by the trial Court calls on the trap day to a third number twice. The appellant specific contention is that number belongs to a Vigilance constable. PW.10 himself says that PW.1 repeatedly speaking on the mobile to "somebody" from about 03.50 p.m. The pattern is that calls to the third number follow soon after calls to the appellant. Thus, a third parties involvement and intervention is very much there, but the Investigating Officer not taken any steps to rule out third parties intervention and a clear motive against the appellant stands proved. Further, there is no recording or transcript of any call. The trial Court declined to consider the point because the appellant not proved the ownership of the number. But the call record is a prosecution exhibit, and the person who was apparently in repeated contact with PW.1 in the middle of the trap was never identified or examined by the prosecution. I hold that the prosecution left unexplained a circumstance which bears directly on whether the conversations that led to the bus stop were spontaneous, while the content of those conversations rests on PW.1 alone. Further, Rajaram was one of the two official witnesses. He handled the notes in the demonstration and according to PW.2 accompanied the trap party throughout, his examination is necessary, since vital contradiction raised in the manner of trap.. He was not examined. No explanation is offered. An adverse inference under Section 114, illustration (g), of the Evidence Act is warranted.

16. The case is that the test was conducted in the office of the Assistant Engineer, Thamaraipalayam. PW.2, in cross-examination, said that it was conducted at Ganapathipalayam for about a quarter of an hour. D.W.1 independently says that the appellant was first taken to the Ganapathipalayam EB office and after about 45 minutes to Thamaraipalayam. The trial Court dismissed PW.2's statement as "single evidence" without asking why the prosecution's own shadow witness would say so, and without any re-examination to clarify. Further, PW.4's evidence, recorded in paragraph 17 of the Judgment of the trial Court, is that the tainted money was recovered from the accused even before conducting phenolphthalein test, contrary to PW.2 and PW.10. The trial Court noted this submission but never decided it. Instead, in paragraph 74 it held the test-before-recovery sequence "established" by the evidence of PW.1, PW.2, PW.5 and PW.10, though PW.5 is only the chemical analyst and cannot speak to the sequence.

17. It is seen from the records that appellant came on a two- wheeler and kept the money in his pant pocket, whereas the prosecution case, M.O.4 and PW.10 speak of the shirt pocket; PW.2 says the appellant produced Rs.530/- from his pant pocket as his own money. D.W.1 says that the appellant came on foot. The two-wheeler not seized, and its ownership and disposal are unexplained. The times given by the witnesses for the entrustment, the departure and arrival of the trap party and the arrest also differ among themselves, ofcourse these may be minor, however, the prosecution witnesses not consistent on the vital facts and events. Further, though it is the case of the prosecution, accused received the bribe near the busstand, near a Temple, the recovery proceedings not conducted in that place, initially taken to Ganapathipalayam EB Office and thereafter to Thamaraipalayam EB Office. The occurrence place shifted as could be seen from the recovery mahazar and rough sketch are the scene of occurrence shifted, then the presence of witnesses and materials collected becomes doubtful DW1's evidence confirm the shifting of scene of occurrence the prosecution not given any explanation in this regard.

18. Weighing the evidence as a whole, the prosecution has not established the demand with the certainty required in a criminal trial. The earlier demands are spoken to by interested witnesses whose accounts conflict on dates; the demand on the trap day rests on a complainant who contradicted himself on how he reached the spot, and on an official witness whose own evidence on where and when the test was done supports the defence in part; and the second official witness, the call records, the seizure of the vehicle and the sequence of recovery are left unexplained. The trial Court's reasoning that the contradictions were "minor" is not backed by any sound reasoning.

19. The positive phenolphthalein result and the recovery of M.O.1 show that the appellant's hands and shirt pocket came into contact with the tainted notes. They do not, by themselves, prove that he demanded the money or knowingly and voluntarily accepted it as gratification. In order to prove the defence, the appellant had examined D.W.1 / Jaganathan / Priest of a Temple in front of which the incident occurred and according to him, a person standing by the temple kept something into the shirt pocket of the appellant, two or three men seized his hands, and he was dragged to a jeep parked some 300 feet away. Since demand is not proved beyond reasonable doubt, the presumption under Section 20 does not arise. The trial Court erred in law in observing that the appellant must "produce any evidence other than mere explanation" and in treating D.W.1's evidence as "weak" for want of corroboration. The accused's burden is only to raise a probable defence, which can be done through the prosecution witnesses as well as through defence evidence. A single witness who is not shown to be unnatural cannot be rejected merely for lack of corroboration.

20. Even if the presumption were available, it would apply only to the offence under Section 7; it has no application to Section 13(1)

(d) . For a conviction under Section 13(2) r/w Section 13(1)(d), the prosecution had to prove that the appellant obtained a valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position. There is no proof of that other than the alleged demand and acceptance, which fail for the reasons already given. The trial Court proceeded on the footing that, because the appellant was handled by the trap party, the recovery of M.O.1 and the positive hand-wash completed the prosecution's case, and then required the accused to prove his innocence. That approach is contrary to the settled law. It overlooked the contradictions on material aspects, did not decide the defence of enmity, rejected the defence evidence on conjecture, and found demand on dates that are not consistently proved. The conviction is not sustainable.

21. For these reasons I answer the points for determination as follows: (i) the proof of sanction is unsatisfactory, but it is unnecessary to hold the proceedings void; (ii) demand is not proved beyond reasonable doubt; (iii) acceptance is not proved so as to raise the presumption under Section 20, and in any event a probable defence has been made out; and (iv) the conviction cannot be sustained.

22. In the result, this Criminal Appeal is allowed and the appellant is acquitted of all the charges. The conviction and sentence passed in C.C.No.37 of 2015 (CNR No.TNED04-000236-2015) by the learned Chief Judicial Magistrate / Special Judge, Erode, vide Judgment dated 12.06.2023, are set aside. The bail bond, if any, executed by the appellant shall stand cancelled. The fine amount, if any, paid shall be refunded to the appellant.

16.10.2026 Index : Yes / No Internet : Yes / No mpk

M.NIRMAL KUMAR, J. mpk To

1. The Chief Judicial Magistrate / Special Judge, Erode.

2. The Deputy Superintendent of Police, Vigilance & Anti-Corruption, Erode.

3. Public Prosecutor, High Court, Madras Pre-Delivery Judgment made in CRL.A.No.705 of 2023

16.10.2026