V. Bakthavatsalu, J.
1. The first accused, who is the appellant in C.A. No. 565 of 93, was functioning as Special Tahsildar, Adi-Dravidar Welfare, Kulithalai. The Second accused, who is the appellant in C.A. No. 590 of 93, was employed as Surveyor in that department. The accused were convicted under section 7 of the Prevention of Corruption Act read with 34 IPC and section 13(1)(d) of the Prevention of Corruption Act read with 34 IPC and the accused were sentenced to undergo Rigorous Imprisonment for one year each and to pay a fine of Rs. 1000/- and the sentence was Ordered to run concurrently. Against the said conviction and sentence, accused 1 and 2 have come forward with these two separate appeals.
2. The charge against the appellants is that on 23.7.90 at about 10.30 a.m. the first accused demanded Rs. 300/- from Velan and that the second accused demanded Rs. 200/- as bribe for processing the patta application and that on 24.7.90, at about 12:30 p.m. the first accused received Rs. 300/- and that the second accused received Rs. 200/- and that therefore, they are liable to be punished under section 7 of the Prevention of Corruption Act read with 34 IPC and section 13(1)(d) of the Prevention of Corruption Act read with 34 IPC. The accused denied the above charges.
The prosecution has examined P. Ws 1 to 8 and marked Exs.P-1 to P-13 and M. Os. 1 to 10.
3. The case of the prosecution as disclosed from the above evidence is as follows:-
P. Ws 3 and 4 namely., Velan and Kuppan belong to Thulakampalayam village. They belong to Schedule Caste. They approached the Government for assignment of house site. One Kandasamy belonging to the said village agreed to transfer his land for the market value fixed by the Government and accordingly, he gave consent letter Ex.P-3 on 25.1.89. In pursuance of the same, P.W.3 and others contacted Harijan Welfare Tahsildar. But, patta was not assigned to them. On 23.7.90 at about 10.30 a.m. they approached the first accused regarding grant of house site patta. The first accused demanded him to pay Rs. 300/- as bribe. The first accused also asked P. Ws 3 and 4 to contact the surveyor, the second accused. When they contacted the second accused, he demanded them to pay Rs. 200/- for measuring the land After consulting with the villagers, they collected the amount. P. Ws 3 and 4 were not willing to give amount for obtaining house site patta. Therefore, they went to the Vigilance office at about 9.30 a.m. with the complaint Ex.P-4 on 24.7.90.
4. P.W.8, the Deputy Superintendent of Vigilance police, received the complaint Ex.P-4 from P.Ws 3 and 4 and registered the case in Crime No. 6/90. Ex.P-13 is the first information report. Thereafter, he summoned P.W.5 and another to come to the Vigilance Office and accordingly, P.W.5, the Agricultural Officer came to the Office of P.W.8. P.W.8 introduced P.Ws. 3 and 4 to P.W.5. P.W.8 also ascertained whether P. Ws 3 and 4 brought the bribe amount. P.Ws 3 and 4 had shown the currency notes which are M. Os 1 and 2. Then, they rubbed phenolphthaleir. power on M. Os 1 and 2. The importance of phenolphthalein test was also explained to the witnesses. P.W.8 directed P.Ws 3 and 4 to handover the amount to the accused and he also directed them to tie a towel on the head like a turban, as an indication for handing over the amount to the accused. Thereafter, P.W.8 prepared mahazar under Ex.P- 5. Then, at about 11.15 a.m. P.W.8 and P.Ws 3 to 5 and one Ganesan proceeded to the Kulithalai Office. After directing the witnesses to enter into the office, P.W.8 and his party were hiding in another place.
P. Ws 3 to 5 as
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per the directions of P.W.8 went into the Tahsildar Office. At that time, the first accused was present there. P.W.3 enquired the Tahsildar about the patta, for which the first accused asked him whether he brought the amount. P.W.3 told him that he had brought the amount. At that time, the second accused also entered the room. He also asked P.W.3 whether he had brought the amount demanded by him. Then, P.W.3 gave Rs. 300/-to the first accused and Rs. 200/- to second accused. The accused put the money into the shirt pocket. After handing over the amount. P.Ws 3 and 4 and 5 left the office. As directed by P.W.8, P.W.3 gave the signal by tying the turban.
5. After receiving the signal from P.W.3, P.W.8 entered into the office of first accused. P. Ws 3 and 4 identified the accused and thereafter, they were asked to leave the office. P.W.8 retained P.W.5 with him. Then, P.Ws 8 and 5 and his party entered into the office and at that time, they saw both the accused in the room. On seeing P.W.8 and police party, the accused got frightened and were shivering. They also began to rub their hands on the table. P.W.8 warned them not to rub their hands. Thereafter. P.W.8 prepared Sodium Carbonate Solution. He directed the accused to dip their fingers into the solution bottle. When first accused dipped his hands, the solution became pink colour. Thereafter, the bottles were sealed and the label R-1 and L-l were affixed on the tumblers. The above tumblers are M.OS 5 and 6.
6. Thereafter, P.W.8 prepared another sodium carbonate solution in two tumblers. He asked the second accused to dip his fingers into the said tumbler. When the second accused dipped his finger into the tumbler. The solution became pink colour. The above tumblers were packed and sealed and marked R-2 and L-2, were affixed on the same. M.OS 8 and 9 are the said tumblers. The accused produced the amount from their pockets. M.O.1, is the amount produced by the first accused and M.0.2 is the amount produced by the second accused. M.0.3 is the shirt worn by the first accused and M.O.4 is the shirt worn by the second accused. P.W.8 also dipped the shirts into the solution bottle and the shirts also became pink colour. P.W.8 packed the above shirts into separate bottles and affixed seal P-l and P-2. M. Os 7 and 10 are the said bottles. P.W.8 compared the serial number of the notes in Ex.P-5 with that of the notes produced by the accused and he found that the numbers in both the notes tallied with each other. With regard to recovery of Exs.P-6 to P-8 and M.Os. 1 to 10. P.W.8 prepared mahazar Ex.P-9 and he also obtained the signatures of the accused in Ex.P-9. P.W.8 then searched the house of the accused. But, he did not find any incriminating materials in the search. After the accused were brought to the office, they were released on bail. He also sent material objects to the court for obtaining the opinion of the chemical examiner.
P.W.6 the Head Clerk of the court sent the material objects to the chemical examiner and thereafter, the court received report Ex.P- 12.
7. P.W.1 the Deputy Director of Land Survey Department after perusing the documents gave sanction for prosecuting the second accused. Ex.P-1 is the Order P.W.2 the collector of Trichi District accorded sanction to prosecute the first accused. Ex.P-2 is the sanction Order.
8. A completing the investigation, P.W.8 submitted his report to the Director. The Deputy Superintendent of Police, who succeeded P.W.8 after obtaining necessary documents filed the charge sheet against the accused.
The incriminating materials appearing against the accused were explained to them. The accused denied the evidence. The first accused has submitted a written statement. He has stated in the above statement that one week prior to 24.7.90, when P. Ws 3 and 4 approached him he requested them to contribute Rs. 300/- towards flag day donation and that accordingly, P.W.3 agreed to give amount on 23.7.90 and that as he had to attend the meeting at Trichy on 23.7.90, he requested P.W.3 to bring the amount on 24.7.90 and that he also wrote receipt for the same and at that time, the police entered into the room.
9. The second accused has stated in his statement that he already measured the land on 23.9.89 and 1.10.89 and that he sold the cycle to P.W.3 for Rs. 700/- and that P.W.3 has to pay Rs. 200/- for the said sale and that on 23.7.90 he saw P.W.3 in the veranda of his office and that he asked him to pay the balance, for which P.W.3 told him that he would bring the amount on 24.7.90 and that accordingly, he paid Rs. 200/- on 24.7.90 and that the said amount is not the bribe amount.
10. On behalf of the accused three witnesses were examined. D.W.1 the Assistant Employed in Kulithalai Harijan/Welfare office has stated that the first accused assumed charge as Tahsildar on 9.4.90 and that when P.W.3 came to the office, the first accused asked him to bring the file and that on perusal of the file, he told the first accused that the application for grant of assignment was already submitted to the Government and that as the Government was assigning the land to P.W.3 they have to pay Rs. 300/- each as donation for the flag day and that accordingly, P.W.3 agreed to pay the same and that on 23.7.90, he attended the meeting at the collector's office, Trichy and that the first accused also attended the said meeting and that they reached the Collector's Office at 10.00 a.m. on 23.7.90 and that the meeting was completed only at about 7.00 p.m.
D.W.2 has stated that during the year 1989-90, the collector has directed the Tahsildar to collect donations for flag day and that he also handed-over the receipt books and that Ex.P-1 is the said receipt book and that on 24.7.90. a sum of Rs. 300/- was collected from P.W.3 for the flag day.
11. D.W.3 is the resident of Nachallur. He has stated that the Government proposed to assign house site patta to persons belonging to Boyar community and Washermen community and that they gave applications for assignment of patta and that in connection with the said proceedings, he was attending Kulithalai office and that at about 3 years ago, at about 12.00 noon, he went to the office to enquire about the patta and that he came to know that the Tahsildar and Surveyor were arrested by the police. Thereafter, he returned to his place and that one day prior to the above incident, he had gone to the above office to contact the Tahsildar and second accused and that at that time, he saw P.W.3 and that when second accused called P.W.3 he did not respond and that the second accused asked him to bring P.W.3 and that when D.W.3 brought P.W.3 the second accused told him that he has sold cycle without any document and that he did not pay balance of Rs. 200/- and that the second accused demanded P.W.3 to pay the balance, for which P.W.3 told him that he would bring the amount next day and that three months thereafter, when he contacted the second accused, he was told that he has been implicated by P.W.3 for having received Rs. 200/- towards the balance of sale of cycle. On the side of the accused, Ex.D-1 the receipt book was also marked.
12. On a consideration of oral and documentary evidence, the trial court has convicted both the accused and sentenced them to undergo Rigorous Imprisonment for one year and to pay a fine of Rs. 2000/-. Aggrieved by the said conviction and sentence, the accused have come forward with these two separate appeals.
It is contended by the learned counsel for the first accused that the trial court has not properly considered the defence version put forward by the first accused and that the trial court failed to consider the evidence of D.W.1 and that the Investigation officer did not examine any other witness and that in any event, the offence under section 13(1)(d) of the Prevention of Corruption Act is not attracted and that framing of charges are defective. Learned counsel for the first accused also contended that the evidence of P. Ws 3 and 4 that they met the first accused on 23.7.90 would not be true, since the first accused attended the collector's office on that day and that the trial court has not properly considered Ex.D-1, the receipt book marked by the accused.
13. It is contended on behalf of the second accused that the second accused has already measured the land and that he had nothing to do with the grant of patta and that Exs.P-7 and P-8 do not relate to the land involved in the case and that the evidence of D. Ws 1 to 3 were not properly appreciated by the trial court. It is, further, contended that the witnesses P. Ws 3 and 4 have clearly admitted that long before the date of the incident, the lands were already measured by the second accused and that therefore the findings of the trial court that the second accused received Rs. 200/- as bribe cannot be sustained.
14. On the other hand, learned Government Advocate contended that the evidence of P. Ws 3 to 5 will clearly prove the case of the prosecution that both accused received the amount only as bribe for granting patta and that even admitting that the first accused received Rs. 300/- as donation for the flag day it cannot be a legal remuneration and that therefore, the first accused is guilty of mis-conduct and that the trial court has given cogent reasons for disbelieving the evidence of D.W.3 and that therefore, the contention of second accused that he received Rs. 200/- from P.W.3 towards the balance of sale price of cycle is not sustainable and that there is no reason to reject the evidence of P.W.5.
The point for determination is whether the prosecution has established the charges levelled against the accused beyond reasonable doubt.
15. It is not in dispute that P.Ws 3 and 4 belong to Schedule Caste and that they applied to the Government for grant of house site. Ex.P-3 will show that one Kandasamy and others gave consent letter to the Government agreeing to transfer their land for house site at the price fixed by the Government. It is also not disputed that after the date of Ex.P-3, process was started for allotting patta to P.Ws 3, 4 and others. It is in the evidence of P. Ws 3 and 4 that when they approached the concerned Tahsildar in the Taluk Office, they did not give proper reply. It is admitted that the first accused took charge as special Tahsildar, Harijan Welfare Department on 9.4.90. It is not in dispute that the second accused was employed as Surveyor in the said office during the relevant time.
16. The case of the prosecution that P.W.3 paid Rs. 300/- to first accused and Rs. 200/- to second accused on 24.7.90 at the office of first accused is not denied by the accused. It is the contention of the first accused that P.W.3 paid Rs. 300/- only as donation towards the flag day. The second accused has stated in the statement that he sold cycle to P.W.3 and that a sum of Rs. 200/- remains to be paid by P.W.3 and that he received the said amount on 24.7.90. P.W.3 has also admitted in cross examination that he purchased the cycle from the second accused for Rs. 700/-. But, he would say that he had paid the entire amount to the second accused. He denied the suggestion of second accused that he had to pay the balance of Rs. 200/- to second accused. It is also proved that the amount received by the accused were recovered by P.W.8 at the office in the presence of P.W.5 and that the phenolphthalein test was conducted by P.W. 8 and that when the accused dipped their fingers in the solution tumblers, it became pink colour. Ex.P-9, the mahazar, which is attested by P.W.5 will show that on 24.7.90, the alleged bribe amount and document were recovered. It is also stated that the serial numbers shown in the above notes tallied with the notes noted in the mahazar Ex.P-5 prepared at the office of P.W.8. It is, thus, seen that the prosecution has established beyond any reasonable doubt that the amount paid by P.W.3 to accused was recovered by P.W.8 and that it is also admitted by the accused that they received the said amount on 24.7.90.
Now the question is whether the amount paid by P.W.3 to accused 1 and 2 were received by them as an illegal gratification for doing favour to P.W.3.
17. To substantiate the defence version, the first accused has stated in his statement that on 23.7.90, P.W.3 did not meet him and that on that day, he had to attend the meeting at Collector's office, Trichy and that he was not available at the local taluk office. P.W.3 has stated in Ex.P-4 that at about 10.30 a.m. on 23.7.90, he met the accused at the office and that the accused demanded the amount. P.W.3 has stated that he met the first accused for the first time only one day prior to the date when he paid the amount to the first accused. He has stated that he met the first accused only on two occasions. The entire evidence of P.W.3 will show that after. Kandasamy Gounder gave consent letter Ex.P-3, he contacted the Tahsildar, Kulithalai. It is seen that the first accused was not the Tahsildar at that time. As already stated, he assumed charge only on 9.4.90, at Kulithalai Office. But, P.W.4 has stated that one week before the first accused was arrested, he met the first accused and that on that day, he did not demand Rs. 300/-. But, he has asserted that on 23.7.90, the first accused demanded Rs. 300/-. But, P.W.3 has not corroborated the evidence of P.W.4 that he met the first accused one week prior to 23.7.90. The above contradictions between P. Ws 3 and 4 would not materially affect the case of the prosecution. The process was started after Kandasamy Gounder gave consent letter Ex.P-3 and that before the first accused assumed office of Special Tahsildar, number of Tahsildars were transferred. As P.W.4 has come forward to give evidence two years after the date of the incident, certain contradictions are bound to occur. Hence I am unable to attach much importance to the above contradictions between P. Ws.3 and 4. It is, however, clear from the evidence of both P. Ws.3 and 4 that they met the first accused on 23.7.90. If the first accused is able to establish that he was not present at the office on 23.7.90, then it has to be held that the evidence of P.W.3 that the accused demanded Rs. 300/- on 23.7.90 cannot be true.
18. To prove that the first accused was not present at the office on 23.7.90, the first accused has examined D.W.1. D.W.1 has stated that he attended the collector's meeting at Trichy on 23.7.90 and that the first accused also attended the said meeting and that they attended the meeting at 10.00 a.m. and that the meeting came to an end at 7.00 p.m. D.W.1 has admitted that he did not put a note in the attendance register that he went on other duty on 23.7.90. There are no documents to show that the first accused attended the collector's meeting on 23.7.90. If really the first accused attended the meeting at Trichy on 23.7.90, he would have claimed travelling allowance. No materials are produced to show that the first accused claimed travelling allowance for attending the Collector's meeting at Trichy. P.W.7 the retired Welfare Officer of District Adi Dravidar Welfare Department has stated that on 23.7.90 at about 2.00 p.m. he called all the Tahsildars for a meeting and that the meeting had commenced at 3.00 p.m. on 23.7.90. He has, however, admitted that there was no meeting m the forenoon. He could not say at what time the first accused attended the Collector's Office. On P.W 7's own showing, it is clear that the first accused would not have attended the Collectors Office in the forenoon. Even admitting but not conceding that the first accused attended the meeting at Trichy at 2.00 p.m. it would not show that he was not present at Kulithalai Office at 10.00 or 10.30 a.m. on 23.7.90. There arc no materials to show that the first accused was present at the Collector's Office from 10.00 a.m. till 7.00 p.m. on 23.7.90. In the statement ruled by the first accused it is stated that he attended the Collector's office and that he proceeded from Lalgudi to Collector's Office. Trichy. As already stated, if really, the first accused had attended the Collector's Office. Trichy at about 10.00 a.m. on 23.7.90 and remained there till 7.00 p.m. he would have claimed TA for the said day. Even assuming that the first accused attended the Collector's meeting which commenced at 2.00 p.m. on the said date, it cannot be said that the first accused would not have been present at the Kulithalai Office at 10.30 a.m. on the said date. The trial court has elaborately discussed the above aspect of the case and has negatived the contention of the first accused that he was not present at Kulithalai Office on 23.7.90. On the other hand, the evidence of P. Ws 3 and 4. which is corroborated by the averments contained in Ex.P-4, the complaint would clearly show that on 23.7.90. P.W.3 met the first accused in the morning. The evidence of P.W.3 that the first accused demanded Rs. 300/- for processing the patta application appears to be acceptable.
19. The contention of the first accused that P.W.3 paid Rs. 300/- as donation for the flag day was not accepted by the trial court. The trial court has also given cogent reasons for rejecting the said contention put forward by the accused. As already stated, the amount was recovered in the presence of P.W.5 at the office.
20. P.W.5 has stated that when he entered the office along-with P.W.3 the first accused asked P.W.3 whether he has brought the amount. About the 2nd Accused P.W.5 has slated thus:
P.W.5 has stated that after receiving the said amount the first accused put the amount in his shirt pocket. It is contended by the accused that it is highly improbable that the first accused would have received the bribe amount in the presence of a stranger. P.W.3 has stated that when accused asked about the identity of P.W.5. he told them that P.W.5 belongs to his village. But. P.W.5 has stated that the accused never enquired as to his identity and that he was not asked by the accused to go outside the office. The above evidence of P.W.5 appeared to be acceptable. It cannot be laid down as a universal rule that the bribe amount would not be received in the presence of stranger. The evidence of P.W.3 will show that the introduced P.W.5 as a person belonging to his village Minor discrepancy between the evidence of P.W.s 3 and 5 on this aspect would not render the version of P.W.5 unbelievable. The evidence of P.W.5 will clearly prove the case of the prosecution that the first accused received Rs. 300/- from P.W.3 and that the second accused also received Rs. 200/- P.W.5 has no motive to come forward to depose against the interest of the accused. P.W.5 was also employed in the Agricultural Department. The evidence of P. Ws 3 and 4 will clearly show that the first accused on 23.7.90 demanded Rs. 300/- and that the second accused demanded Rs. 200/- and that they paid the said amount to the accused on 24.7.90.
But, the first accused relies upon the evidence of D.W.1 to show that he received the amount of Rs. 300/- only as donation for flag day D.W.1 has stated that when P.W.3 met the first accused fur grant of patta. the first accused requested him to donate Rs. 300/- D.W.2 has stated that the first accused collected amount for flag day from 5 persons and that Ex.D-1 is the receipt book and that on 24.7.90 a sum of Rs. 300/- was collected from P.W 3. He has. however, admitted that receipt dated 24.7.90 was not issued to P.W.3. He could not say whether the above receipt was prepared on 29.6.90. The trial court has given certain reasons for not accepting the above contention of the first accused.
21. When P.W.8 recovered amount from the accused, he also recovered documents Exs.P-6 to P-8. Exs.P-7 and P-8 are the communication addressed to the Surveyor, the second accused. Ex.P-6 is the file. In Ex.p-9 it is stated that the first accused produced file relating to grant of patta. If really, there is any truth in the evidence of D. Ws 1 and 2 that the first accused received Rs. 300/- as donation for flag day and that the receipt book was available on 24.7.90 at the Office of Kulithalai, the first accused would have produced the said book to P.W.8. It is significant to note that the first accused produced the file Ex.P-6 to P.W.8. The receipt book Ex.D-1 was marked through D.W.2. Ex.D-1 was received from Kulithalai Office by the Collector's Office. The first accused has stated in his statement that after he received the amount from P.W.3 he prepared receipt and that at that time, the police entered into the office. The above statement of first accused will show that the receipt book Ex.D-1 was available when the second accused produced the other documents Exs. P-7 and P-8 to P.W.8. If really the first accused received amount from P.W.3 as donation for flag day celebrations, he would have handed over Ex.D-1 also to P.W.8. It is significant to note that it is not even suggested to P.W.3 that he was asked to remain in the office for receiving receipt for payment of Rs. 300/-32.
22. P.W.7 has produced the file Ex.C-1, which relates to the directions given for collection of amount for flag day. The above document would not probablise the contention of the first accused that he received Rs. 300/- only as donation for the flag day. The trial court has held that the first accused prepared Exs.P.7 and P-8 on the same day and handed over to the second accused and that the second accused produced the same to P.W.8. The file Ex.P-6 was produced by the first accused. If really there is any truth that Ex.D-1 was having some connection with the payment of Rs. 300/- the first accused would have produced the receipt book to P.W.8. On the analysis of the said evidence, the trial court has come to the correct conclusion in holding that the receipt book Ex.D-1 was prepared for the case Further, as receipt was not issued to P.W.3 and as the receipt book was not produced along with other documents, to P.W.8 on 24.7.90. Ex.D-1 will not strengthen the case of the first accused that he received amount from P.W.3 only as donation.
The conduct of first accused and second accused after police party entered into the office will also show that the first accused would not have received Rs. 300/- as donation from P.W.3. P. Ws 5 and 8 have stated that when P.W.8 entered into the office, the accused began to rub their hands on the desk and that their hands were shivering. If really, the first accused received the amount as donation, the first accused received the amount as donation, he would have readily handed over the amount with the receipt book to P.W.8 in the presence of P.W.5. P.W.5 has stated that the first accused produced the file to P.W.8 and also other documents. It is not even suggested to P.W.5 that after P.W.3 gave amount to the first accused he prepared the receipt and that P.W.3 suddenly left the room. If all the above facts are taken into consideration, it would establish the case of the prosecution that the first accused received Rs. 300/- only as an illegal gratification, for processing the patta application of P. Ws 3.
23. Learned Government Advocate contended that even assuming that the first accused received amount for the flag day collection, it would amount to illegal gratification. In support of the same, he relies upon a decision reported in Sumanlal v. State of Gujarat ( : 1977 Cri. L.J. 626). In the above decision, it is held thus:
If a public servant insists upon a particular payment, which does not amount to a legal remuneration as consideration for the discharge of his duties, he does commit an act which amounts to an offence under section 161 IPC. even though it is found that he received that amount, not for his personal purpose, but for a charitable purpose or for the purpose of his employer. Even the employer is not entitled to refuse to discharge his duties, which are of public nature and make it a condition precedent upon any payment for any cause, however. Laudable the said cause may be
In a decision of this Court reported In Periyasamy v. Inspector, Vigilance and Anti-corruption, Tiruchirapalli (: 1999 Cri.L.J.2944) the above judgement of Gujarat High Court has been referred to. In the above decision, it is held thus:-
The public servant also would some times take the advantage of the circular to take up the defence plea in these corruption cases, though the demand of the amount was towards bribe. Therefore, it is, in this context, appropriate to direct the State Government to take a policy decision not to ask the public servants to make any collection for any purpose, which would be a great service to both the public and the pubic servants
But in the instant case, it is not established that P.W.3 paid Rs. 300/- as donation for the flag day collection to first accused.
24. Learned counsel for the appellant relies upon an unreported decision of this Court delivered in C.A. No. 758 of 93 dated 27.1.99. It is held in the above case that a person would not accept bribe in the presence of a stranger. The court has accepted the version of the accused that a sum of Rs. 1000/- received by the accused was for purchasing a cow. The question whether the accused received the amount as bribe or not for rendering favor would depend upon the facts of each case. The facts of the above case would not apply to this case and therefore. I am not inclined to place any reliance upon the decision rendered in the above criminal appeal.
Thus, on reappraisal of the entire evidence of P. Ws 3,4 and 5 and the statement of the first accused. I have no hesitation in holding that the first accused received Rs. 300/- from P.W.3: only for processing the application for grant of patta. Therefore, I hold that the trial Court has come to the correct conclusion in holding that the first accused is guilty of the offence with which he is charged.
25. It is the case of the second accused that he sold cycle to P.W.3 and that P.W.3 paid Rs. 500/- only and that he paid balance of Rs. 200/- on 24.7.90. It is also proved that the amount of Rs. 200/- was recovered from the second accused by P.W.8. The second accused had examined D.W.3 to prove his case. D.W.3 has stated that the second accused requested him to bring P.W.3 who was wandering outside the office and that when he took P.W.3 to the second accused, the second accused told him that he did not pay the balance of Rs. 200/- and that P.W.3 promised the second accused that he would pay the amount next day. The trial court has observed that second accused has not stated in his statement, that he asked D.W.3 to bring P.W.3 on 23.7.90. In the statement, he has stated that on 23.7.90. when P.W.3 was found in the verandah, he called him and that P.W.3 came there. The trial court has pointed out that it is not stated that P.W.3 was brought by D.W.3 at the instance of second accused. As D.W.3 was also attending the Taluk office in connection with the grant of patta, he would have come forward to oblige the second accused, to save the second accused from the criminal liability. Hence, the trial court is justified in not placing any reliance upon the evidence of D.W.3.
26. Learned counsel for the second accused contended that the evidence of P. Ws 3 and 4 will show that second accused already measured the land and that therefore, he has nothing to do with the grant of patta. P.W.3 has stated that from the year 1989, the second accused was employed as Surveyor and that prior to 23.7.90, he contacted the second accused and that at that time, the second accused did not demand any amount from him. He has also admitted that when he contacted the second accused, the second accused told him that he has done everything and that Tahsildars are being transferred often and that however, he would recommend his case. P.W.3 has also admitted that the second accused demanded the amount only for measuring the land. P.W.4 has admitted that after 25.1.89, the second accused came to the village, to measure the land and that when he met the second accused at the office after sometime, the second accused did not demand any amount. Relying upon the above evidence, it is contended that as second accused already measured that land, there was no need for him to demand any amount from P.W.3. The trial court has held that first accused has directed the second accused only on 24.1.90, as per Ex.P7 and P-8. to inspect the village and value the land. In Exs.P-7 and P-8, the village NADANTHI is mentioned. It is thus seen that Exs.P-7 and P-8 would relate to the village described in Ex.P-3. Hence the fact that the second accused already measured the land cannot be pressed into service for holding that the second accused had no occasion to demand bribe amount from P.W.3. It is not shown that second accused had valued the land. As per Ex.P-3, Kandasamy agreed to transfer his land at the price fixed by the Government Even though, the consent letter Ex.P-3 was given in the year 1989, till the date of this case patta was not granted to P.W.3. It is, thus, seen that the process for granting patta was pending on 24.7.90. It is not shown that the second accused valued the land after measuring the same. In the above circumstances, the fact that the second accused already measured the land will not be a ground for holding that the second accused had no occasion to demand amount from P.W.3. It is highly unbelievable that the second accused would have received the amount towards balance of the sale of cycle in the office. The evidence of P. Ws 3,4 and 5 will show that only when P.W.3 paid Rs. 300/-to first accused, the second accused also received Rs. 200/- from P.W.3. I fail to understand as to how the second accused could have received Rs. 200/- alongwith the first accused towards sale of cycle. Further, the very fact that second accused also attempted to rub his hand on the desk on seeing P.W.8 coupled with the evidence of P.W.5 will prove that the second accused also demanded bribe amount of Rs. 200/- from P.W.3. The evidence of P.W.3 will show that on 23.7.90, the second accused also demanded Rs. 200/- as bribe. The very fact that accused 1 and 2 received the amount at one and the same time, will only prove the case of the prosecution that second accused received amount of Rs. 200/- only as bribe. Therefore, the trial court is justified in negativing the claim of the second accused that he received Rs. 200/- towards the balance of sale price of cycle.
As it is established that the accused received that amount as bribe and as the amount was recovered by P.W.8. it shall be presumed that the accused received that amount as an illegal gratification. The presumption as contained in section 20 of the Act has not been rebutted by the accused by acceptable evidence or probabilities. For the reasons stated above. I hold that the finding of the trial court that the accused are guilty of the offence with which they are charged has to be upheld.
27. Learned counsel for the appellants contended that the appellants are entitled to benefit of remission, which came into force after the date of the judgment of the trial court. In support of the same, learned counsel for the appellants relied upon a decision reported in Padma v. State of Tamilnadu (: 1998 Cri. L.J. 4335). wherein this Court has held that the accused are entitled to claim remission of sentence in accordance with G. Os. and the Superintendent of Central Prison is directed to give effect to this Order forthwith and release the petitioners in custody after granting remission. Against the said Order. the State has preferred Special Leave petition in C.A. No. 958-60/99. The Supreme Court has set aside the above Order passed by the High Court which is reported in the above decision. The supreme court has held that the High Court could only inquire the Government to consider the cases of the respondents for the grant of remission in accordance with law. The Supreme Court has also observed that individual, facts will have to be investigated and decision taken whether and to what extent the remission can be granted and whether the Orders on which reliance was placed are applicable. The Supreme Court has directed the High Court to consider the matter afresh and issue appropriate directions. In view of the above judgement of the Apex Court, this Court cannot grant remission by applying the G. Os, which came into force after the date of the judgement of the trial Court. It is open to the appellant/accused to approach the competent authority for grant of remission and the competent authority will consider the request of the appellants/accused in accordance with law.
28.In the result, the criminal appeals are dismissed. The conviction and sentence imposed on both the accused are confirmed. The bail bonds shall stand cancelled. The trial Court is directed to take steps to commit the accused to undergo rest of the sentence.