T. Sudanthiram, J.@mdashThe appellant herein has been convicted by the learned Principal Special Judge for CBI cases for the offences u/s 7 and
Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, and sentenced to undergo Rigorous Imprisonment for six months
and was imposed a fine of Rs. 500/- in default to undergo R.I. for 3 months for the offence u/s 7 of the Prevention or Corruption Act 1988 and
Rigorous Imprisonment for 1 year and to pay a fine of Rs. 1000/- in default to undergo R.I. for 6 months and the sentence is to run concurrently.
2. The appellant has preferred this appeal against the above said conviction and sentence.
The case of the prosecution in brief is that P.W.2, one Mathialagan is the decoy witness in this case and he was the Managing Director of one
''Pretham Consultancy Private Limited''. A telephone connection No.6265557 was given in the name of the said company and there was some
default in paying the telephone bills. So, the telephone connection was temporarily disconnected. After making the payment, when the said
Mathialagan approached the Telephone Department, on 18.3.1998 one Mohamed Pichhai demanded a bribe of Rs. 500/- and hence he made a
complaint to the Superintendent of Police, Central Bureau of Investigation and the said Mohammed Pitchai was trapped and caught red handed by
the police officers. On 7.4.1998, the Commercial Officer, Office of DGM, (North West) has issued orders for giving reconnection to the said
telephone number and he was asked to pay Rs. 105/- towards reinstallation fees. After making payment on 15.4.1998, he went to Anna Nagar
Telephone Exchange and contacted the accused Venkatasubramanian, Junior Telecom Office on 20.4.1998 at about 4.30 p.m. Then the accused
demanded illegal gratification of Rs. 1000/- and informed him that the connection would be given on payment of the said amount. PW2 was also
asked to meet the accused on 21.4.1998 between 12.30 p.m. and 1.00 p.m. and pay the bribe. PW2 went to CBI office on 21.4.1998 about 9
a.m. and reported the matter and gave a complaint which is marked as Ex.P.7. PW.6 registered the First Information Report, Ex.P.20 and also
arranged for trap proceedings and the independent witnesses PW3, Jaisingh Lazarus and Sethuraman were also introduced to P.W.2. They were
explained about Phenolpthalene test and PW2 handed over 100 currency notes of Rs. 100 denomination in total Rs. 1000/-. PW.2 was instructed
to give the bribe amount only on demand and PW3 was instructed to accompany PW2. PW2 was instructed to give signal for receiving bribe
amount and Entrustment mahazar which is marked as Ex.P.8 was prepared. Then, the trap team left the office. When PW.2 reached the office of
the accused, he was not available in the seat. PW2 and 3 were waiting outside the office. At about 1.15 p.m., the accused came in a scooter and
went into the office. The accused informed PW2 that he would come after taking his lunch and that he has to visit the residence of PW2 to check
the telephone at about 1.45 p.m. The accused started in his scooter and PW2 and 3 also went in another scooter. The accused followed them.
After reaching the residence of PW2, the accused checked the telephone, then they all left the residence of PW2. PW2 and 3 followed the
accused. The CBI police Officials also followed him. They started from the house of PW2. which is situated in the first cross street in East Anna
Nagar and after nearing the chinthmani Round tana, they were going on the main road. In the main road in the second street, the accused stopped
his scooter. After stopping the scooter, the accused asked PW2 to pay the bribe amount and stretched his right hand. PW2 handed over the
currency notes and the accused receiving it in his right hand transmitted it to the left hand and then he put it in his shirt pocket. In the meantime,CBI
Trap team arrived there and intercepted the accused. The Inspector of Police introduced himself to the accused and informed him about his arrest.
Both the right and left hand fingers of the accused were subjected to sodium carbonate solution test. The colourless solution turned to pink colour .
Then the accused after taking the currency notes from his shirt pocket and handed over to PW6.The currency notes were compared and all the
formalities were observed. The Recovery Mahazar Ex.P.10 was prepared. Subsequently, PW7, Inspector of Police, took up the investigation on
30.4.1998 and examined the witness and seized the documents. After obtaining the sanction order from PW1 the Deputy General Manager, he
filed a final report on 18.8.1998 against the accused.
3. In order to prove the case, the prosecution has examined 7 witnesses, marked 21 exhibits and produced five material obejcts. After completion
of evidence, the accused was questioned u/s 313 Cr.P.C. and he denied all the incriminating materials and also filed a written statement.
4. On the side of defence, DW.1 and 2 relatives of the accused are examined. DW 1 stated that one Balasubramanian , the brother of DW1
expired in a train accident and she informed the above matter to her uncle Mr.Narayanan through the accused who is the father in law of the
accused. The above message was given to the office of the accused by telephone at about 2.30 p.m. DW.2 Narayanan, stated that the accused is
the son-in-law of the above person. His relative late Balasubramanian died in railway accident on 20.4.1998 at Pune. It was also stated that at
about 4 p.m., the accused came to the house of DW2 and informed the above matter. According to the written statement filed by the accused, the
decoy Mr. Mathiazhagan along with the help of accompanying witness thrusted some money in his pocket and it was resisted by him and a case
has been foisted against him and it is also stated that the accused had not met PW2 on 20.4.1998 evening and he left the office at 3 p.m. itself and
on receiving the death message of his close relative. The trial Court after considering the evidence and necessary materials, convicted the accused.
5. Mr. S. Ashok Kumar, Learned Senior Counsel submitted that the case of the prosecution about paying the bribe amount to the accused itself is
very artificial. It appears from the evidence that PW2 had been very anxious to make the payment. Though the accused has not made any demand
in the office on the date of trap, when PW2 met him, and also the accused did not make any demand in the house of PW2 and they quietly left the
house of PW2, PW2 chased the accused. If the accused wanted to receive the bribe amount, even before starting from his house, he could very
well receive the amount or atleast while he was in the house of PW2 after checking the telephone, he could have received the bribe amount. But
the accused has not done so. This fact establishes that the accused did not make any demand for the bribe amount and he has also not expected
any payment from PW2. Even with regard to demand on the previous day, i.e. 20.4.1998, in view of the evidence of DW.1 and 2, that on getting
the death intimation of his close relative, he had left the office at 3 p.m. and as such the evidence of PW2 that he met the accused at 4 p.m. and the
accused demanded money is only false. Learned Senior Counsel strenuously contended that the demand of bribe amount on 20.4.1998 being false
and there being no demand of amount on 20.4.1998, the version of PW2 that the accused accepted the bribe amount from him is absolutely false.
When the doubt arises with regard to the prosecution case and when the prosecution is not strong enough, the version of the defence which is also
more probable, should be accepted. The accused also filed a written statement in which it is clearly stated that money was thrusted on him.
Learned Senior counsel further pointed out that it is not the case of the prosecution that after the payment was made, pre-arranged signal was
given by PW2, and immediately, the police have rushed to the scene of occurrence. In the said circumstance is the version of accused, only should
be accepted.
6. Learned Senior counsel submitted that Ex.P.2 sanction order in this case is invalid, since PW1 who is Deputy General Manager had given the
sanction order. Though it is stated by PW1 that he has got power to appoint and remove the Junior Telecom officer, Ex.D1 filed by PW1 shows
that the accused was appointed to the post only by the General Manger of Tele communication. As appointed out by the General Manager
(Telecom), the accused could be removed only by the General Manager(Telecom). Even according to Article 311 of the Constitution of India,the
appointing authority is the removing authority. Learned Senior counsel also relied on the decision that the Supreme Court reported in 2000 SCC
(Cri) 687 in Ram Krishan Prajapati v. State of U.P. In paragraph 8,it is observed as follows:
8. ""The position is now clear that even though the District Magistrate was also an appointing authority as the appellant was in fact appointed by the
Commissioner, who is admittedly a higher authority than the District Magistrate, the Commissioner is the appointing authority so far as the appellant
is concerned.
Since the sanction is invalid, the cognizant taken by the trial Court is also illegal and the whole trial is vitiated. The conviction on the basis of such
trial cannot be sustained. Learned Senior counsel also relied on a decision reported in 2005 SCC (Cri) 1995 in State of Goa v. Babu Thoms and
submitted that even though Section 19(3) of the Prevention of Corruption Act,1988(hereinafter referred to as the Act) says that conviction cannot
be reversed, it is not applicable to this case. Learned Senior Counsel further submitted that Section 19(3) of the Act does not exclude 19(1) and a
combined reading of Section 20(3) of the Act may show that Section 19(3) only say that Notwithstanding anything contained in 19(3), but it does
not say that Notwithstanding anything contained in 19(1) and (2).
7. Learned Special Public Prosecutor, CBI cases submitted that PW2 was so frustrated by not getting telephone connection, even though he had
earlier complained against another person, who demanded bribe amount and against whom action was taken. PW2, after making the payment on
15.4.1998, when he met the accused on 20.4.1998, the accused had demanded the bribe amount. The place i.e. on the road, chosen for
demanding and accepting the bribe amount is only by the accused. If PW2, wanted to thrust the amount, he could have done it either in the office
of the accused or in the house of PW2. Learned Special Public Prosecutor submitted that Phinolpthalin test has been proved positive and
presumption u/s 4 arises and mere denial of the accused is not sufficient. Learned Special Public Prosecutor further submitted that as far as
sanction is concerned, in Ex.P.1 it is clearly mentioned that Deputy General Manager is the appointing authority for the Junior Telecom Officer and
even if PW1, is not the competent authority, it is only an error in the sanction order as per the explanation given u/s 19(3) of the Act. For the sake
of error in the sanction order, the conviction cannot be altered as per Section 19(3)(a) of the Act. Learned Special Public Prosecutor also relied
on the decision reported in 2004 1 SCC 2140 (State by Police Inspector v. T. Venkatesh Murthy) and 1999 SCC (Cri) 1494 (V.K. Sehgal and
Anr. v. State of Haryana).
8. This Court considered the submissions made by both parties and perused the evidence of witnesses and other records.
9. It is the prosecution case that on 20.4.1998 when PW2 met the accused, he demanded a sum of Rs. 1000/- as bribe for giving reconnection to
the telephone. Of course, with regard to the demand by the accused on 20.4.1998, only the evidence of PW2 is available. At the same time, the
accused had stated that he was not available at his office on 20.4.1998 after 3 p.m., since he has received the death message of his close relative.
He has also examined DW.1 and 2 in that aspect. DW1 only stated that he had passed the death intimation to the office of the accused. But, DW2
who is the father-in-law of the accused stated that the accused came directly to his house and gave a information at 4 p.m.. If the evidence of
DW2 is accepted, then the demand by the accused may be false. But, DW2 being a close relative of the accused, it is not possible for this Court
to accept his evidence. If on the other hand, the accused had examined anyone from his office to show that he had left the office even at 3 p.m.,
then it is possible to place some reliance on such evidence. In the absence of any such evidence, it is not possible for this Court to accept the
evidence of DW2 and to reject the evidence of PW2 on that aspect. Though PW2 had paid necessary amount on 15.4.1998, there is no
explanation from PW2, why no action was taken till 20.4.1998, in spite of the direction from General Manager to reconnect the telephone on
payment of bill. EX.P.19 is the concerned communication.
10. On the date of trap, PW2 and others went only to the office of the accused. PW3 also accompanied PW2. As per EXP.7, complaint given by
PW2, it was expected that the bribe amount should be given only in the office of the accused between 12.30 p.m. and 1.00 p.m., but as per the
evidence, the accused had gone out and after his return to the office,he had his lunch. He also informed PW2 that he had to verify the telephone at
his residence. Admittedly, there was no demand at that time. Thereafter, the accused had visited the house of PW2 and inspected the telephone
connection. Admittedly, there also, has been no demand. Thereafter, the accused left the house of PW2 without informing anything to PW2. Only
under that circumstance, PW.2 and 3 followed the accused in the Scooter. It was only the accused who had stopped the scooter on the way. It is
the case of PW2 that after stopping the vehicle, the accused only demanded money and it was given to him. But the version of accused is that he
stopped the vehicle and asked the accused as to why he followed him and at that time, PW2 along with the help of accompanying witness i.e.
PW3, thrusted money in his pocket. Though there are two versions available, one from the prosecution and the other version from the defence, the
version of PW2 is corroborated by an independent witness PW3 who had accompanied PW2. Further, the Phinolpthalin test being answered
positive the acceptance of bribe amount is established by prosecution and immediately the presumption available u/s 20 of the Act should be
drawn. Such a presumption can be rebutted by the accused with the probable explanation. In this case, the accused merely denies the acceptance
of the amount and says it was thrusted in his pocket. It was suggested to PW2, to thrust the amount PW3 was used. It was suggested to PW3 that
only PW3 had thrusted the amount in the pocket of the accused. In the written statement, it is stated that the decoy Mathialagan (P.W.2) along
with the accompanying witness(P.W.3), thrusted money in his pocket, while he was in the scooter. The version of the accused with regard to
thrusting the amount in his pocket is inconsistent. Whether it was thrusted by PW2 or it was thrusted by PW3, the accused is not firm in giving
explanation. As per the suggestion put to PW3, he had thrusted money in the pocket. This Court is unable to accept the suggestion, since PW3
who being an independent witness need not go to the extent of himself thrusting money in the pocket of the accused. The explanation given by the
accused is only improbable and inconsistent. The evidence of PW2 being corroborated by PW3, the prosecution had established his case that the
accused had accepted the bribe. Normally,Trap Laying Officer may not be in a position to give evidence about receiving the bribe amount by the
accused, but in this case since it happened on the road. PW6, has also given evidence of having seen the accused receiving the currency notes
from PW2. There was no necessity for PW6 to wait for the pre-arranged signal from PW2 to reach the scene of occurrence.
11. With regard to the sanction accorded to the accused, Ex.P.2, it is accorded by PW1 (Deputy General Manager). Though as per Ex.P.1, the
Deputy General Manger is the appointing authority for the Junior Telecom Officer, the accused was appointed only by General Manager. As per
the decision cited supra, 2008 SCC 686, in this case also even though the Deputy General Manager was the appointing authority, the accused was
in fact appointed by the General Manager who is admittedly an higher authority, and as such the General Manager is the appointing authority so far
as the accused is concerned. If that be so, the contention of the learned Senior Counsel that sanction to prosecute the accused should have been
passed only by the General Manager is acceptable. Therefore, EX.P.2, the sanction accorded to the prosecution to proceed against the accused is
only with an error, since as per the explanation u/s 19(3)(a) of the Act, an error includes competency of the authority to grant sanction. The next
part is that whether the error in according sanction affects the conviction on the accused. In the decision cited by the learned Counsel for the
appellant that 2005 SCC 1995. In Paragraphs 11 and 12, it is stated as follows:
11. Referring to the aforesaid provision, it is contended by learned Counsel for the appellant that the Court should not, in appeal, reverse or alter
any finding, sentence or order passed by a Special Judge on the ground of the absence of any error, omission or irregularity in the sanction
required under Sub-section (1), unless the Court finds that a failure of justice has in fact been occasioned thereby. In this connection, a reference
was made to the decision of this Court rendered in the case of State v. T. Venkatesh Murthy. Reference was also made to the decision of this
Court in the case of Durga Dass v. State of H.P. where this Court has taken the view that the Court should not interfere in the finding or sentence
or order passed by a Special Judge and reverse or alter the same on the ground of the absence of, or any error, omission or irregularity in the
sanction required under Sub-Section (1) unless the Court finds that a failure of justice has in fact been occasioned thereby . According to the
counsel for the appellant no failure of justice has occasioned merely because there was an error, omission or irregularity in the sanction required
because evidence is yet to start and in that view the High Court has not considered this aspect of the matter and it is a fit case to intervene by this
Court. We are unable to accept this contention of the counsel. The present is not the case where there has been mere irregularity, error or omission
in the order of sanction as required under Sub-section (1) of Section 19 of the Act. It goes to the root of the prosecution case. Sub-Section(1) of
Section 19 clearly prohibits that the court shall not take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have
been committed by a public servant, except with the previous sanction as stated in clauses (a),(b) and (c).
12. As already noticed, the sanction order is not a mere irregularity, error or omission. The first sanction order dated 2.1.1995 was issued by an
authority that was not a competent authority to have issued such order under the Rules. The second sanction order dated 7-9-1997 was also
issued by an authority, which was not competent to issue the same under the relevant rules, apart from the fact that the same was issued
retrospectively w.e.f. 14-9-1994, which is bad. The cognizance was taken by the Special Judge on 29-5-1995. Therefore, when the Special
Judge took cognizance on 29-5-1995, there was no sanction order under the law authorising him to take cognizance. This is a fundamental error
which invalidates the cognizance as without jurisdiction.
12. In the above decision, the discharge of the accused was confirmed by the Hon''ble Supreme Court, but at the same time it was observed in
Paragraph 14 is as follows:
14. Having regard to the gravity of the allegations levelled against the respondent, we permit the competent authority to issue a fresh sanction order
by an authority competent under the Rules and proceed afresh against the respondent from the stage of taking cognizance of the offence and in
accordance with law.
19(3) of the Prevention of Corruption Act comes into effect only after the trial is completed.
Section 19(3)(a) is as follows:
19 Previous sanction necessary for prosecution.
(1)...
(2)...
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground
of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that court, a failure
of justice has in fact been occasioned thereby;
13. In the decision of the Honourable Supreme Court in Central Bureau of Investigation reported in 1999 (Cri.) 1494 (V.K. Sehgal and Anr. v.
State of Haryana), it is observed as follows:
It is further inroad into the powers of the appellate court over and above the trammel contained in Section 465 of the Code which has been dealt
with supra. u/s 19(3)(a) no order of conviction and sentence can be reversed or altered by a court of appeal or revision even ""on the ground of the
absence of sanction"" unless in the opinion of that court a failure of justice has been occasioned thereby. By adding the explanation the said
embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such
sanction, then also the appellate as well as revisional courts are debarred from interfering with the conviction and sentence merely on that ground.
In the decision reported in 2004 SCC (Cri.)2140 (State by Police Inspector v. T. Venkatesh Murthy), it has been held as follows:
14. In the instant case neither the trial court nor the High Court appear to have kept in view the requirements of Sub-section (3) relating to question
regarding ''failure of justice''. Merely because there is any omission, error in irregularity in the matter of according sanction, that does not affect the
validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same
logic also applies to the appellate or revisional court. The requirement of Sub-section (4) about raising the issue at the earliest stage has not been
also considered. Unfortunately the High Court by a practically non-reasoned order, confirmed the order passed by the learned trial Judge. The
orders are, therefore, indefensible. We aside the said orders. It ''would be appropriate to require the trial court to record findings in terms of clause
(b) of Sub-section (3) and Sub-section (4) of Section 19.
In view of the above decision rendered by the Hon''ble Supreme Court, the accused cannot be acquitted unless it is shown that failure of justice is
in fact occasioned in a particular case.
14. What is meant by ''failure of justice occasioned'' is the question. The Hon''ble Supreme Court observed in Shamnsaheb M. Multtani v. State of
Karnataka reported in 2001 SCC 358 in para 23 held as follows:
23. We often hear about ''failure of justice'' and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is
too pliable or facile an expression which could be fitted in any situation of a case. The expression ''failure of justice'' would appear, sometimes, as
an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd., v Deptt. of the Environment). The criminal court,
particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a
camouflage.
15. Though this Court feels that it is an uphill task for an accused to show how a failure of justice had in fact occasioned and it is also equally an
uphill task for the Court also to express as to how failure of justice had occasioned; it is the duty of the Court to come to the conclusion in the
particular case that whether the failure of justice has in fact occasioned or not. In this case nothing has been pointed out by the accused, for this
Court to come to the conclusion that the failure of justice has in fact occasioned. In view of the bar u/s 19(3)(a) of the Act,, though the sanction is
invalid, this Court is unable to reverse the finding of the Special Judge, in this appeal.
16. In the result, the conviction and sentence imposed on the accused are confirmed. The appeal is dismissed.