Benefit Of Doubt Goes To Accused If Contradictions & Lack Of Corroboration In Respect Of Foundational Facts Creates Doubt On Illegal Gratification: Madras HC
|Noticing that the tainted money was recovered from the table drawer and the explanation of the accused that such tainted money was planted in his table drawer by prosecution witness when he left his table to remit the estimation cost and get receipt for it, appears to be a plausible explanation, the Madras High Court set aside the conviction and sentence passed by Special Judge under Prevention of Corruption Act, and directed that the fine amount paid if any, shall be refunded to the accused/appellant.
A Single Judge Bench of Justice G. Jayachandran observed that “the prosecution case is short of proof beyond doubt. Whereas, the accused had probablised his defence by preponderance of probability. Bundle of contradictions and lack of corroboration in respect of foundational facts creates doubt about the prosecution case, therefore the benefit of doubt has to go to the accused”.
Noticing that the documentary evidence clearly indicates that till July 29, 2003, the application of the defacto complainant never reached the hands of the accused and it was with the A.E at least till July 29, 2003, the Bench pointed out the improbability of the prosecution version from the entries made in the Application Register, Proposal Register and Sanction Register and observed that the very foundation of the prosecution case regarding first demand was false.
Advocate V. Balasubramaniam appeared for the Appellant, whereas Advocate S. Udaya Kumar appeared for the Respondent.
The brief facts of the case were that the appellant while serving as Commercial Inspector in Tamil Nadu Electricity Board, caught in the Trap laid by V&AC, Inspector with Rs.1000/- given by a police constable and therefore prosecuted. The Trial Court held him guilty for demand and receipt of Rs.1000/- as illegal gratification from the police, and sentenced the appellant to imprisonment of one year and to pay a fine of Rs.5000/- for the offence under Section 7 of P.C Act and to undergo two years imprisonment and to pay a fine of Rs 10,000/- for the offence under Section 13(2) r/w 13(1) (d) of P.C Act.
After considering the submission, the Bench found that the charge which was framed on June 28, 2005 confines only to the incident happened on Sep 04, 2003 in the AE Office, Salem, which is in respect of the demand and acceptance of Rs.1000/- as illegal gratification other than legal remuneration, which is punishable under Section 7 of P.C Act, 1988.
Whereas, the Bench noted that modified charge dated Apr 18, 2017 narrates incidences commencing from the application for temporary connection, shifting the meter and other subsequent events.
Though the charge under Section 7 of P.C Act is not altered, the Bench pointed that the substance of the charge has materially improvised by this exercise taken by the trial Court.
“Under Section 216 of the Code, the trial Court is empowered to alter the charges at any time before judgment provided the accused is given opportunity to recall the witnesses. In this case, there is no request emanated from the accused to recall the witnesses after altering the substance of charge No.1 for offence under Section 7 of the PC Act. Nonetheless, the untold prejudice could be apparently seen from the prosecution exhibits and witnesses”, added the Bench.
The Bench further noted that the defacto complainant had been interacting with the A.E Office for more than a year and on earlier two occasions when he sought for Temporary Connection and shifting of Meter Board, he had no grievance of demand of bribe.
“For the first time, he in his complaint Ex.P-5 had alleged the accused demanded money for preparing estimation with less costs. The first demand according to the complaint was on 28/07/2003. However, the endorsements found in Ex.P-4 application indicates that, the defacto complainant after making request for shifting, has paid Rs.500/- the fees for shifting only on 28/07/2003. Till 29/07/2003 his application for shifting was with A.E and only thereafter, A.E had made endorsement on the back of Ex.P-4 with date as 29/07/2003 that, the fees of Rs.500/- paid on 28/07/2002”, added the Bench.
The Bench elaborated that any cost estimation prepared is subject to the approval of the Superior Officer, and the cost estimation is not based on the whims and fancy of the Commercial Inspector, but based on the cost rates prescribed by the Department revised every accounting year.
Finding that the prosecution witness had given inconsistent reason for the alleged demand of pecuniary advantage, the Bench stated that the alleged demands not only lack corroboration but also contrary to the documents which improbably render the allegation not true.
Accordingly, the High Court concluded that the prosecution case is short of proof beyond doubt.
Cause Title: N. Kannan v. State
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