GURUVIAH versus THE STATE REPRESENTED BY THE INSPECTOR OF POLICE on 20 August 2019

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SUPREME COURT REPORTS

[2019] 10 S.C.R.

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GURUVIAH

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THE STATE REPRESENTED BY THE INSPECTOR OF POLICE(Criminal Appeal No. 1208 of 2019)

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AUGUST 20, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Prevention of Corruption Act, 1988 – ss.7, 13(1)(d), 13(2)and 12 – Appellants (accused nos. 2 & 3) were village assistants inthe office of the village administrative officer – PW-2 lodgedCcomplaint that the village administrative officer-since deceased(accused no.1) demanded Rs.600/- for signing the necessary papersto facilitate transfer of electric connection in his name – Villageadministrative officer came to the office along with accused no.3while accused no.2 waited at the office for both of them – MoneyDwas handed over to accused no.2 on the instructions of the villageadministrative officer – Appellants apprehended by the trap officialsimmediately thereafter and the money was recovered – Appellantsconvicted u/ss. 13(1)(d), 13(2) and 12, however acquitted u/s.7 ofthe 1988 Act and s.109, IPC – On appeal, held: Significance ofaccused no.2 counting the money before handing it over to accusedEno.3 who put it in his shirt pocket, lay in the confirmation that theamount was in consonance with the demand, of which naturally theappellants were aware of – It was only after the money as demandedwas paid that the accused no.3 filled up the form for transfer of theelectric connection in the name of PW-2 and placed it before theFvillage administrative officer who then signed and put his seal onthe same – PW-10, Inspector Crime Branch proved the trapproceedings and recovery – Defence of the appellants that theyreceived the money in the bonafide belief that it was towards arrearsof land tax is belied by the fact that land tax for the period in questionhad already been cancelled by the State Government – Taking of aGfalse defence is a further aggravating circumstance against theappellants – Evidently the appellants were in league with the villageadministrative officer – Prosecution was therefore able to establishprima facie case against the appellants – Acquittal of the appellantsu/s.7 of the 1988 Act, in the facts of the present case, is H

inconsequential and cannot negate the presumption drawn againstthem – Fact that PW-2 in his chief may not have named accusedno.2 is inconsequential – Appellants to surrender forthwith forserving out their remaining sentence – Penal Code, 1860 – ss.7,109.

Prevention of Corruption Act, 1988 – s.20 – Presumptionunder – Discussed.

Dismissing the appeals, the Court

Conclusion

HELD : 1.1 The significance of accused no.2 counting themoney before handing it over to accused no.3 who put it in hisshirt pocket, lay in the confirmation that the amount was inconsonance with the demand, of which naturally the appellantswere therefore aware of. It was only after the money as demandedwas paid that accused no.3 filled up the form for transfer of theelectric connection in the name of P.W.2 and placed it before thevillage administrative officer who then signed and put his seal onthe same. At this moment, they were apprehended. The moneywas handed over to the trap officials by the village administrativeofficer after taking it back from accused no.3. Their hands weredipped in the sodium carbonate solution, including the shirt ofthe third accused, leading to change of colour of the solutionconfirming that they were the same notes which were given toP.W.2 by the trap officials. P.W.1 proved the sanction for theprosecution. The mere absence of any specific statement by P.W.2and the trap witness P.W.4 of any demand and acceptance by theappellants, attributing the same only to the village administrativeofficer can be of no avail to the appellants. P.W.10, InspectorCrime Branch proved the trap proceedings and recovery. Thedefence of the appellants that they had received the money inthe bonafide belief that it was towards arrears of land tax is beliedby the fact that land tax for the period in question had alreadybeen cancelled by the State Government. The taking of a falsedefence is a further aggravating circumstance against theappellants. The second contention that it is improbable that ademand of Rs.600/- would have been made for a subsidy benefitof Rs.625/- only, ignores the fact that it entitled P.W.2 for a subsidyof Rs.625/- every six months. Evidently the appellants were in A

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[2019] 10 S.C.R.

Aleague with the village administrative officer. The contention thatthere was no demand or acceptance by the appellants or that itwas in a bonafide belief merits no consideration. The prosecutionwas therefore able to establish a prima facie case against theappellants. Section 20 of the Prevention of Corruption Act, 1988provides that if an accused public servant has accepted or obtainedBfor himself or for any other person any undue advantage from anyperson, there shall be a presumption unless the contrary is provedthat he accepted or obtained that undue advantage as a motive ofreward for performance of a public duty improperly or dishonestlyeither by himself or by another public servant. The acquittal ofCthe appellants under Section 7 of the Act, in the facts of the presentcase, is inconsequential and cannot negate the presumption drawnagainst them. The fact that P.W.2 in his chief may not have namedaccused no.2 is considered inconsequential. The appellants aredirected to surrender forthwith for serving out their remainingsentence. [Paras 5-7, 10] [751-A-H; 752-A; 753-D]DT. Shankar Prasad v. State of A.P. (2004) 3 SCC753 : [2004] 1 SCR 419 – relied on.

Virendranath v. State of Maharashtra (1996) 11 SCC688 – held inapplicable.

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Case Law Reference

(1996) 11 SCC 688held inapplicablePara 3[2004] 1 SCR 419relied onPara 4

CRIMINAL APPELLATE JURISDICTION : Criminal AppealFNo. 1208 of 2019.

From the Judgment and Order dated 05.18.2018 of the MaduraiBench of Madras High Court in Crl. A (MD) No. 188 of 2008.

With

GCriminal Appeal No. 1209 of 2019.

S. Nagamuthu, Sr. Adv., M. P. Parthiban, Maniprabu, SantoshParameshwaran, A. S. Vairawan, K. Pragadeesh, R. Sudhakaran, HardikGautam, Advs. for the Appellant.

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M. Yogesh Kanna, S. Partha Sarathy, S. Raja Rajeshwaran, Advs.for the Respondent.

The Judgment of the Court was delivered by NAVIN SINHA, J.

1. The appellants, who are village assistants, challenge theirconviction under Sections 13(1)(d), 13(2) and 12 of the Prevention ofCorruption Act, 1988 (hereinafter called as “the Act”) with fine and adefault stipulation, sentencing them to one year of rigorous imprisonment.The appellants have been acquitted of the charge under Section 7 of theAct and Section 109 of the Indian Penal Code. The village administrativeofficer, accused no.1, was convicted under Sections 7, 13(1)(d), 13(2)and 12 of the Act. He has since been deceased during the pendency ofhis separate appeal.

2. The appellants were village assistants in the office of the villageadministrative officer, arrayed as accused 2 and 3. On 17.12.2003, P.W.2 lodged a written complaint before the Additional Superintendent ofPolice (Vigilance and Anti-Corruption) that the village administrativeofficer had demanded a sum of Rs.600/- for signing the necessary papersto facilitate transfer of electric connection in the name of the complainant.The illegal gratification is stated to have been handed over to one of theappellants on the instruction of the village administrative officer, andwho after counting it handed it over to the other appellant. They wereapprehended by the trap officials immediately thereafter and the moneyrecovered.

3. Learned senior counsel Shri S. Nagamuthu, appearing for theappellants, submitted that according to P.W.2 the demand had beenexclusively made by the village administrative officer alone. The latteralone was competent to sign the necessary papers to facilitate transferof the electric connection. The appellants were menial assistants in hisoffice. There was no occasion for them to demand any illegal gratificationas they were incompetent to grant any favour to P.W.2. The appellantshad never made any demand for illegal gratification from P.W.2. Theyhad only received the money from P.W.2 on the instructions of the villageadministrative officer in the bonafide belief that it was payment towardsdemand of arrears of land tax, for which a receipt had already beenissued earlier without actual payment. In the absence of any proof for A

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Ademand and acceptance by the appellants, they cannot be convicted onassumptions and presumptions. There is no proof of any conspiracy.Mere recovery from the appellants was not sufficient for conviction. Itis unlikely that a demand of Rs.600/- would be made to facilitate a subsidyof Rs.625/-. Reliance in support of the submissions was placed onVirendranath vs. State of Maharashtra, 1996 (11) SCC 688.B

4. Shri M. Yogesh Kannan, learned counsel for the State, submittedthat evidently the appellants were in league with the village administrativeofficer. Mere absence of direct evidence for demand and acceptanceor conspiracy was irrelevant in view of the circumstantial evidenceavailable and which unhesitatingly points towards the appellants as beingCpart of design for obtaining illegal gratification. The demand undoubtedlywas made by the village administrative officer alone. The money washanded over to accused no.2 on his instructions. After counting theamount, accused no.2 handed over the money to appellant no.3 who putit in his shirt pocket. The application form was then filled up by accusedDno.3 after which the village administrative officer signed and put seal.The transfer of electric connection would have facilitated P.W.2 to obtaina subsidy of Rs.625/- every six months. The defence of the appellantsthat the money was received bonafide in the belief that it was towardsarrears of land tax for Fasli years 1412 and 1413 is falsified by the factthat taxation for the years in question had already been cancelled by theEState Government. Relying upon T. Shankar Prasad vs. State of A.P.,(2004) 3 SCC 753, it was submitted that the conviction and sentence ofthe appellants calls for no interference.

5. We have considered the submissions and perused the materialson record. P.W.2 was desirous for transfer of the electric connection onFthe land in question in his own name to facilitate a subsidy of Rs.625/-every six months. The village administrative officer was required to signthe necessary documents for the purpose. P.W.2 lodged a writtencomplaint on 17.12.2003 against the village administrative officer alonefor having demanded a sum of Rs.600/- as illegal gratification for theGpurpose. P.W.2 lodged a written report regarding the same. Necessarymazhar was prepared. The appellants were village assistants in theoffice of the village administrative officer. The village administrativeofficer came to the office along with accused no.3 while accused no.2waited at the office for both of them. The money was handed over toaccused no.2 on the instructions of the village administrative officer.

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The significance of accused no.2 counting the money before handing itover to accused no.3 who put it in his shirt pocket, lay in the confirmationthat the amount was in consonance with the demand, of which naturallythe appellants were therefore aware of. It was only after the money asdemanded was paid that accused no.3 filled up the form for transfer ofthe electric connection in the name of P.W.2 and placed it before thevillage administrative officer who then signed and put his seal on thesame. At this moment, they were apprehended. The money was handedover to the trap officials by the village administrative officer after takingit back from accused no.3. Their hands were dipped in the sodiumcarbonate solution, including the shirt of the third accused, leading tochange of colour of the solution confirming that they were the samenotes which were given to P.W.2 by the trap officials.

6. P.W.1 proved the sanction for the prosecution. The mere absenceof any specific statement by P.W.2 and the trap witness P.W.4 of anydemand and acceptance by the appellants, attributing the same only tothe village administrative officer can be of no avail to the appellants.P.W.10, Inspector Crime Branch proved the trap proceedings andrecovery. The defence of the appellants that they had received themoney in the bonafide belief that it was towards arrears of land tax isbelied by the fact that land tax for the period in question had alreadybeen cancelled by the State Government. The taking of a false defenceis a further aggravating circumstance against the appellants. The secondcontention that it is improbable that a demand of Rs.600/- would havebeen made for a subsidy benefit of Rs.625/- only, ignores the fact that itentitled P.W.2 for a subsidy of Rs.625/- every six months. Evidently theappellants were in league with the village administrative officer.

7. The contention that there was no demand or acceptance by theappellants or that it was in a bonafide belief merits no consideration. Theprosecution was therefore able to establish a prima facie case againstthe appellants. Section 20 of the Act provides that if an accused publicservant has accepted or obtained for himself or for any other person anyundue advantage from any person, there shall be a presumption unlessthe contrary is proved that he accepted or obtained that undue advantageas a motive of reward for performance of a public duty improperly ordishonestly either by himself or by another public servant. The acquittalof the appellants under Section 7 of the Act, in our opinion in the facts ofthe present case, is inconsequential and cannot negate the presumption A

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Adrawn against them. The fact that P.W.2 in his chief may not have namedaccused no.2 is considered inconsequential.

8. In Virendranath (supra), the venue for payment of the illegalgratification was at a restaurant. The illegal gratification on directions ofthe prime accused was handed over to the owner of the restaurant. TheBacquittal of the restaurant owner by this Court was based on an entirelydifferent reason which has no application to the facts of the presentcase. We consider it appropriate to set out the same below:

“5. Insofar as A-2 is concerned, we find considerable merit in thecontention raised on his behalf that he could have received themoney innocently from the complainant at the asking of A-1,without realising that it was bribe money. The argument prevailsbecause the prosecution has nowhere led any other evidence ofconduct or consistency of a behaviour from which it could bespelt out that A-2 was a habitual go-between in facilitatingacceptance of bribe by A-1. This single instance which has beenbrought forth does not reveal of any regularity of conduct of thisnature. There thus exists an area of doubt, the benefit of whichshall go to A-2. Accordingly, the appeal of A-2 is allowed and heis acquitted of the charges.”

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9. In T. Shankar Prasad (supra), the prime accused directed theEmoney to be handed over to the co-accused when both of them werecaught on the spot and the money recovered from the co-accused. Theco-accused took the plea that there was no proof of demand andacceptance against him. A similar defence was taken that he hadaccepted the same in the bonafide belief towards advance tax. ReferringFto Section 20 of the Act, noticing that there was no material towards anyadvance tax liability, it was observed:

“24. ….An overall consideration of the materials sufficientlysubstantiates, in the case on hand, the prevalence of a system andmethodology cleverly adopted by the accused that the demandwill be specified when both the accused were present andthereafter as and when A-1 puts his signature the party has tomeet A-2 at his seat for fixing the seal and making entry in theregister to make the process complete only after collecting theamount already specified by A-1 in A-2’s presence. Theinvolvement of both of them in a well-planned and cleverly G

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GURUVIAH v. THE STATE REPRESENTED BY THEINSPECTOR OF POLICE [NAVIN SINHA, J.]

managed device to systematically collect money stood sufficientlyestablished on the evidence let in by the prosecution. Further, A-2 did not offer his explanation immediately after the recovery ofmoney. A similar plea of receiving money as advance tax wasrejected and affirmed by this Court in A. Abdul Kaffar v. Stateof Kerala. It was noted that such a stand was not taken at thefirst-available opportunity and the defence was not genuine. InState of U.P. v. Dr G.K. Ghosh it was observed that in case ofan offence of demanding and accepting illegal gratification,depending on the circumstances of the case, the court may feelsafe in accepting the prosecution version on the basis of the oralevidence of the complainant and the official witnesses even if thetrap witnesses turn hostile or are found not to be independent.When besides such evidence, there is circumstantial evidencewhich is consistent with the guilt of the accused and not consistentwith his innocence, there should be no difficulty in upholding theconviction.”

10. We find no merit in the appeals, which are dismissed. Theappellants are directed to surrender forthwith for serving out theirremaining sentence.

Divya Pandey

Appeals dismissed.

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