caselaws
Supreme Court of India
D. Velayutham vs State Rep.By Inspector Of Police on 10 March, 2015Bench: Dipak Misra, Vikramajit Sen
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.787 OF 2011
D. VELAYUTHAM APPELLANT
VS.
STATE REP. BY INSPECTOR OF RESPONDENT
POLICE, SALEM TOWN, CHENNAI
WITH
CRIMINAL APPEAL No.788 of 2011
J U D G M E N T
VIKRAMAJIT SEN, J.
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 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 has 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 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
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 “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 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 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 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 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 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.
………………………………………………..J.
(DIPAK MISRA)
………………………………………………..J. (VIKRAMAJIT SEN)
NEW DELHI;
MARCH 10, 2015.
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