1 These two Appeals before us assail the common Judgment dated 8.9.2010 of
the Madras High Court which only partly allowed the Appeals before it, in favour
of the Accused-Appellants. The Appellant in Criminal Appeal No. 787/ 2011 is the
First Accused; Appellant in Criminal Appeal No. 788/ 2011 is the Second Accused.
The High Court partly allowed both Appeals, setting aside the conviction of
Accused 1 under Section 13(1) (d) read with 13(2) of the Prevention of Corruption
Act, 1988, whilst upholding Accused 2’s conviction thereunder; and affirming the
conviction of both Accused 1 and Accused 2 but reducing their sentence under
Section 120B, IPC, and Section 7 of the PC Act, to imprisonment of one year each.
2 Recapitulating the facts leading up to these Appeals, Accused 1 and
Accused 2 were, at the time of the perpetrations, employed as officers with Central
Excise IX ‘E’ Range. Accused 1 held the rank of Superintendent, and Accused 2,
his subordinate, Inspector of Excise in the same office. The Complainant (PW2
before the Trial Court), a manufacturer of ‘camel back rubber slab’, received a
show cause notice for payment of Excise duty amounting to Rs. 1,01,333/-. PW2
attended an enquiry held before the Assistant Commissioner (PW4) of Central
Excise, on 07.20.1996; the notice was recalled following this Enquiry. Thereafter,
PW2 received yet another show cause notice, dated 24.05.1996, issued by Accused
1 as its signatory, demanding ‘difference amounts’ (as recorded by the Trial Court)
of Rs. 1,23,193/-. PW2 visited the office of both Accused on 04.06.1996 at 11:30
am, where he met both Accused 1 and Accused 2. Upon questioning the Accused JUDGMENT
persons about the second notice, PW2 was confronted with a bribe demand from
Accused 1 of Rs.1000/- for each Accused whereto Accused 2 concurred. The
bribe demanded was to be paid by PW2 to both Accused on the same day, at 4:30
pm. PW2 immediately thereafter went to the office of the Superintendent of Police
and reported this illegality, whereupon PW6, the Inspector, prepared a trap. As was
planned, PW2 handed over to PW6 currency notes totalling Rs. 2000, in presence
of two independent witnesses, PW3 and another. PW6 explained to PW2 the
working of the Sodium Carbonate test characteristic of trap cases, and proceeded to
smear the notes (M.O.1 currency series) with phenolphthalein powder, before
returning them to PW2, who placed them in his shirt pocket. An entrustment
mahazar was prepared. PW2 was instructed to signal the trap team upon handing
over the notes to the Accused, and PW3 was instructed to accompany him and
witness this receipt of the illegal gratification. PW2 went to the office cabin of
Accused 1, who was not to be found present there, but on encountering Accused 2,
PW2 was told by him that Accused 1 had shortly earlier left the office, to visit his
indisposed wife. Accused 2 told PW2 that he had been instructed by Accused 1 to
collect the moneys on behalf of them both. PW2 handed over the currency notes to
Accused 2, who then handled these with both hands, and placed them in his shirt
pocket. PW3 witnessed the transaction, having stood alongside PW2. PW2 walked out of the office and signalled to the trap team, whereupon PW6 entered the office and subjected Accused 2 to the sodium carbonate solution test, which tested
affirmative, both hands of Accused 2 having been dipped in the solution, turning it
pink. Accused 2 was then directed by PW6 to return the notes, which he did, by
first going into Accused 1’s office, and, thereafter back to his own desk, where the
currency notes had been kept inside his right drawer. The currency notes were
then surrendered to PW6. A mahazar was prepared, the incriminating property
seized, and two witnesses signed the mahazar. Accused 1 was subsequently
arrested.
3 Both Accused were charged with offences under the IPC and the Prevention
of Corruption Act, namely, Section 120-B, IPC, read with Sections 7 and 13(2)
read with Sections 13(1)(a) and (b) thereof. The Trial Court concurrently convicted
and sentenced both Accused for all of the offences wherefore Accused were
charged, the crest of their awarded incarceration being 2 years, for the convictions
secured under Sections 7 and 13 of the Prevention of Corruption Act. The Madras
High Court, as finds mention in our exordium, partly allowed the Appeals before it,
modifying the Trial Court’s order therewithal.
4 The conviction of Accused 2 is unproblematic. Accused 2 was successfully
entrapped by the trap team with Rs. 2000/- recovered from his possession. He has
admitted the receipt of the bribe amount. The only effort at proving his innocence JUDGMENThas been the submission that receipt of the entire sum was on behalf of Accused 1,
no part of which was demanded by Accused 2 for his own keeping and
consumption. This specious defence would have us believe that Accused 2’s mala
fides extended only to being an abettor to the principal perpetrator, Accused 1, and
went no further. We are more inclined to accept PW2’s more robust and rounded
account that Accused 2 accepted the sum both for himself and on behalf of
Accused 1, in preference to Accused 2’s claim that he was personally uninvolved,
but merely an abettor-custodian on Accused 1’s behalf. Since the defence of
Accused 2 stands already breached by his admission of his facilitation of an illegal
act albeit allegedly on Accused 1’s behalf, we can safely proceed further and affirm
the concurrent conclusion from the Complainant’s evidence that part of that sum
would have been for the fulfilment of the bribe demand of Accused 2.
5 A commentary on conviction of Accused 1 will, in the face of the facts,
necessarily be more elaborate. Accused 1 was not present at the execution of the
trap, and is at first glance, conveniently poised to deny any and all knowledge of
the bribe-taking by Accused 2 on his behalf. Accused 1 has expectedly disavowed
Accused 2 and denied making any bribe demand from the Complainant, and has in
turn thrown doubt on the Complainant’s testimony by accusing him of being an
interested or partisan witness, exacting vengeance against Accused 1 for issuing
the second notice. Accused 1 has maintained that the second notice was bona fide,
and was issued only for the purpose of extending the limitation period connected JUDGMENT
with the Excise demand in question. The Assistant Commissioner, PW4,
accepted this rationale in his evidence given before the Trial Court but deposed that
Accused 1 ought to have obtained the necessary permission from him before
issuing the second notice, which issue had already been adjudicated earlier by
PW4. It is on this basis that the second notice was held to be illegal by both the
Courts below.
6 This Court has ratiocinated in significant length and detail on the nature of
evidence commonly encountered in trap cases in anti-corruption prosecutions,
appreciably drawing the distinction between accomplice evidence, and decoy/ trap
witness evidence. Both categories are vitally important in this case. Accomplice
evidence is addressed by Sections 133 and 114 (b) of the Evidence Act, which
though does not make explicit use of the word “accomplice”. In
M.O.Shamsudhin v. State of Kerala (1995) 3 SCC 351, this Court has observed
that “the relation between Section 133 which is a rule of law and Illustration (b) to
Section 114 which is a rule of prudence has been the subject of comment in a large
number of decisions. However, it has emerged that a conviction based on the
uncorroborated testimony of an accomplice is not illegal though an accomplice
may be unworthy of credit for various reasons. Reading Section 133 and
Illustration (b) to Section 114 of the Evidence Act together, the Courts in India have held that while it is not illegal to act upon the uncorroborated testimony of the accomplice the rule of prudence so universally followed has to amount to rule of
law that it is unsafe to act on the evidence of an accomplice unless it is
corroborated in material aspects so as to implicate the accused. The reasons for
requiring corroboration of the testimony of an accomplice are that an accomplice is
likely to swear falsely in order to shift the guilt from himself and that he is an
immoral person being a participator in the crime who may not have any regard to
any sanction of the oath and in the case of an approver, on his own admission, he is
a criminal who gives evidence under a promise of pardon and supports the
prosecution with the hope of getting his freedom”. In the prosecution confronting
us, Accused 2 has given testimony from the locus of an alleged accomplice to the
crime. His incriminating asseverations against his co-accused would, on the
evidence available in this case, require interactive corroboration: the testing and
authentication of Accused 2’s testimony against the strength and degree of
circumstances suggestive of Accused 1’s guilt.
7 Insofar as the Complainant’s testimony against Accused 1 is concerned, the
salutary ratio extractable from previous decisions on the standing of trap witnesses
is that Courts are not to be swayed by the semantics of describing these witnesses
as antecedently “interested” or “partisan” in their testimonies. Rather, their
testimonies can only be so stigmatised, and suffer the evidentiary consequence of
necessary corroboration, on a casuistic basis, that is to say, whether corroboration JUDGMENT
is necessary or not will be within the discretion of the court, depending upon the
facts and circumstances of each case.
8 Witnesses who are particeps criminis, on the other hand, correctly carry a
lower degree of presumed credibility, their evidentiary motivations sullied by their
prior participation in the criminal act precisely whereagainst they subsequently
elect to testify. This selfsame distinction and posture may derive sustenance from
the decision of a Constitution Bench of this Court in State of Bihar v. Basawan
Singh AIR 1958 SC 500, where Their Lordships held that no inflexible rule had
been laid down in an earlier Judgment that the evidence of the witnesses of the
raiding party must be discarded in the absence of any independent corroboration.
Their Lordships opined that: “if any of the witnesses are accomplices who are
particeps criminis in respect of the crime charged, their evidence must be treated as
the evidence of accomplices is treated; if they are not accomplices but are partisan
or interested witnesses, who are concerned in the success of the trap, their evidence
must be tested in the same way as other interested evidence is tested by the
application of diverse considerations which must vary from case to case, and in a
proper case, the Court may even look for independent corroboration before
convicting the accused person”.
9 It would therefore be a derogation and perversion of the purpose and object
of anti-corruption law to invariably presuppose that a trap/ decoy witness is an JUDGMENT
“interested witness”, with an ulterior or other than ordinary motive for ensuring the
inculpation and punishment of the accused. The burden unquestionably is on the
defence to rattle the credibility and trustworthiness of the trap witness’ testimony,
thereby bringing him under the doubtful glare of the Court as an interested witness.
The defence cannot be ballasted with the premise that Courts will, from the outset,
be guarded against and suspicious of the testimony of trap witnesses. We are of the
opinion that the law hitherto expressed by this Court upholds precisely this
exposition.
10 Here, a bald allegation by the defence of PW2’s (Complainant/ trap witness)
interest in falsely implicating Accused 1 will not suffice. By all accounts, PW2 had
initially earned a favourable order by the Assistant Commissioner, who recalled the
demand notice issued to PW2. Thereafter, Accused 1 proceeded to issue another
demand notice. Only pursuant to this vexatious, illegal and unchartered demand
notice did the first meeting take place between the Complainant and Accused 1 and
Accused 2, where the graft demand made by both these officers arose, followed by
the Complainant’s complaint to the Police, and the laying of the trap. There is no
discernible motive for the victim to falsely implicate Accused 1.
11 The Complainant’s testimony evinces verity on yet another count. In his
complaint, the Complainant has listed Accused 1- the absentee at the trap- as the First Accused, whereas Accused 2, his subordinate, is the Second Accused. It is at
once apparent that, having apprised the trap officer, and set up the trap against
Accused 1 and Accused 2, the Complainant could neither have prevised nor
foreknown that Accused 1 would suddenly leave for the hospital to attend to his
ailing wife, and thereby, be so mischievously or fortuitously inculpated in absentia,
as is being put to us by Accused 1. Had the Complainant’s snare been
mischievously and mendaciously directed towards Accused 1, it as open a
possibility that the Complainant as trap witness would actually have encountered
both Accused 1 and Accused 2, and been met with instead by Accused 1’s rejection
of the bribe, as Accused 1 would have us believe. In other words, the motive and
modus operandi attributed by Accused 1 to the Complainant would demand as its
predicate that the Complainant knew that Accused 1 would not be in the office at
the time of entrapment. This predication cannot stand, as it has not even remotely
been suggested by Accused 1 whether, and if so, how, the Complainant could have
known or imagined that Accused 1 would be absent from the office at the precise
hour of entrapment.
12 From the perspective of the Complainant, Accused 1 would have been the
ostensibly competent authority, and not his junior, Accused 2. Accused 2 did not
have the ostensible authority to himself withdraw the demand notice which was
issued and signed by Accused 1. The source of the bribe demand would most
likely have been the ostensible authority as regards the notice, that is to say JUDGMENT
Accused 1 and not Accused 2, though it is proven that Accused 2 too demanded his
moiety, and he was eventually trapped while taking it. The Trial Court was
palpably percipient of this ostensibility, albeit a different dimension thereof,
concluding that the evidence of PW2 decoy is well corroborated by circumstantial
evidence.
13 Any defence of bona fide issuance by Accused 1 of the second notice,
putatively issued for limitation purposes, is swiftly undercut by the proven
illegality of the notice, prior imprimatur of the Assistant Commissioner neither
having been sought, nor received. Both Courts below have rightly recognised the
issuance of the notice as a graft-inducing ploy, designed to browbeat the
Complainant into paying bribes to the Accused-Officers for their recalling/
rescinding the demand notice in return.
14 Though this Court has stressed the need and significance of phenolphthalein
as a trap device in corruption cases, so as to allay doubts about the actual receiving
of bribes by accused persons, there may be cases where there are multiple
demanders in a common or conjoint bribe demand, and for whatsoever reason,
only one receives the sum on their behalf, and is entrapped in consequence.
Depending on strength of the remainder of evidence, in these cases, constructive
receipt by co-accused persons is open to establishment by the prosecution, in order JUDGMENT
that those who intermediately obtain bribes be latched with equal culpability as
their co-accused and entrapped receivers. This will, of course, discount those cases
where the trap is successful only against one and not the other official, the latter
having refused to accept the bribe tendered. In this case, the trap would have
clearly failed against such an official, and there could be no question of the
application of constructive receipt. If the receipt and handling of bribe money by
Accused 2 so convincingly and inexorably points towards his custodianship of part
of the same bribe amount on behalf of his superior officer, namely Accused 1, then
Accused 1 cannot rely on mere non-handling/ non-receipt of the bribe money, as
his path to exculpation. This Court’s construal of anti-corruption cases is sensitive
even to these byzantine methods of bribe-taking, and where an evader escapes a
trap, constructive receipt has to be an alternate means of fastening criminal
culpability.
15 Accused 1’s counsel before the Trial Court denied both Accused 1’s
presence, as also participation, in any meeting in the office with PW2 on the
morning of 04.06.1996, stating that Accused 1 could not have been present at the
alleged preliminary meeting where the bribe demand surfaced, as Accused 1 had
been summoned to the Head Office that very morning. The Trial Court correctly
negated this claim, finding that Accused 1 had not himself stated anything to this
effect under Section 313, Cr.P.C., nor led any evidence by examining any of the JUDGMENT
officials from the head office. The testimonies of DW2 and DW3, stating the
absence of Accused 1 in the office at the relevant time, were disbelieved, keeping
in view their subordination, and therefore likely tutelage as witnesses, being
beholden to Accused 1 and his status as superior. The attendance register of the
office also marked the presence of Accused 1 on 04.06.96, and whilst it has been
accepted that Accused 1 was not present at the time of receipt (in support whereof
he examined the doctor attending to his wife), Accused 1 does not have any similar
external alibis to uphold his claim of having been summoned to the head office at
the hour of the bribe demand. It is, in our view, positively settled that Accused 1
was present in the office that forenoon. Beyond this point, the conviction of
Accused 1 will depend upon a convincing commixture of circumstances and
testimonies of the Complainant and Accused 2, which, as we have already
declared, we find firmly substantiated.
16 M.O. Shamsudhin, bearing some degree of factual resemblance to this case
qua the trapping of one accused and evasion by other, is analogically assistive for
the present determination. In that case, the senior accused, A-1, had been requested
to issue a patta in favour of the complainant. A-2, A-1’s junior officer, was given
the trap money in A-1’s office and on his behalf by the complainant, who was
accompanied by a trap witness. On exiting the office of A-1, A-2 was at once
apprehended. Although A-1 had not been entrapped per se, he was found to be JUDGMENT
conclusively incriminated by the circumstances and evidence of the complainant.
The Court held: “In the instant case, PW1 has no axe to grind against A-1. It is not
in dispute that he had to get a patta issued A-1 and he categorically stated that A-1
had made the demand.A-2 was his assistant and the tainted money was recovered
from A-2 while he was just going out of the office of A-1. Unless A-1 has
demanded the money and has also directed him to hand over the same to A-2, there
was no reason at all as to why PW1 should hand over the money to A-2. PW1 has
consistently stated that A-1 demanded the bribe and that A-2 received the amount
as stated by him. Therefore it cannot be said that there is no corroboration
regarding the demand. This is a case where each of the accused tried to throw the
blame on the other but taking the overall circumstances into consideration in the
light of evidence of PWs 3 and 4 along with the evidence of PWs 1 and 2 both
Courts below have consistently held that the evidence of these witnesses
establishes the guilt of the accused and we see no reason to come to a different
conclusion”.
17 Analogously applying the facts of this case to the present fact set, we find
the conviction of Accused 1 perfectly sustainable. It is an argument a fortiori
supportive of Accused 1’s conviction herein, since in Shamsudhin, A-2’s receipt in
A-1’s office on behalf of A-1 could conceivably have been repudiated by A-1 on
the ground that he himself could have taken receipt of the bribe amount in his own JUDGMENT
office, being physically present there at the time of payment, and need not have
relied on his junior officer to take receipt thereof on his behalf. Contrarily, in the
case before us, Accused 1’s absence from the office at the time of the trap
strengthens, rather than weakens, the claim that his junior officer, Accused 2, was
receiving part of the bribe amount as a custodian on his behalf.
18 In view of the above conspectus, we dismiss both Appeals, and sustain the
Impugned Judgment and Order of the Madras High Court below. Bail of both
Accused stands hereby cancelled. Consequently, it is directed that the Accused
persons are to be taken into custody forthwith, to serve out the remainder of their
sentences.
19 The Appeals are dismissed accordingly. The Interim Order is recalled.
MARCH 10, 2015.