JUDGMENT : 1. The Judgment of conviction and sentence dated 11.08.2008 passed in Special Case No.15 of 2004 by the learned Special Judge cum Chief Judicial Magistrate, Thanjavur at Kumbakonam is being challenged in the present Criminal Appeal. 2. T. Jeyakumar (accused) was found guilty by the Trial Court for demand and acceptance of Rs.500/- as illegal gratification other than legal remuneration on 15.10.2003 from one Thollappan for processing the application relating to sanction of Family Pension and Family Security Fund in view of his father's death. 3. The sum and substance of the prosecution case is as follows : (i) One Srinivasan, Headmaster at Elementary School, Kulamangalam, Orathanadu Taluk, a public servant entitled for pension, died on 15.07.2003 after his retirement in October, 2000. His son Thollappan approached Jeyakumar (accused), Accountant of the Sub Treasury Office, Orathanadu on 13.10.2003 and requested for processing the Family Pension and Family Security Fund. The accused instructed Thollappan to give two separate applications for that and demanded Rs.600/- for processing the same. (ii) On 13.10.2003 at about 11.00 a.m., Thollappan went to the Sub Treasury Office, Orathanadu with two applications, met the accused and handed over the applications. On receipt of the applications, the accused told Thollappan to come in the evening on the same day. At about 04.00 p.m., on 13.10.2003, Thollappan met the accused at Sub Treasury Office, Orathanadu. The accused gave the two applications and forms with Advance Stamped Receipts to Thollappan with instruction to get the signature of his mother Tmt.Lakshmi. At that time also, the accused reiterated his demand of illegal gratification of Rs.600/-. When Thollappan expressed his inability to arrange Rs.600/-, the accused reduced his demand to Rs.500/-. He instructed Thollappan to bring bribe of Rs.500/- on 15.10.2003 and submit the application after obtaining signature of his mother. (iii) In the circumstances, when Thollappan was not inclined to give any bribe, gave the complaint to the Inspector of Police at Vigilance and Anti Corruption, Thanjavur. The complaint was received at 10.00 hours on 15.10.2003. On receipt of the complaint, Thiru.Rengarajan (P.W.8), Inspector of Police, Department of Vigilance and Anti Corruption, Thanjavur arranged for trap. Two witnesses, Andrews Kaviraj and Ayyavu were asked to witness the trap. Pre-trap proceedings of demonstrating the significance of Sodium Carbonate-Phenolphthalein test was conducted in the presence of witnesses. The complaint was received at 10.00 hours on 15.10.2003. On receipt of the complaint, Thiru.Rengarajan (P.W.8), Inspector of Police, Department of Vigilance and Anti Corruption, Thanjavur arranged for trap. Two witnesses, Andrews Kaviraj and Ayyavu were asked to witness the trap. Pre-trap proceedings of demonstrating the significance of Sodium Carbonate-Phenolphthalein test was conducted in the presence of witnesses. The bribe money, five 100 rupee notes totally Rs.500/-, was smeared with phenolphthalein after recording numbers. The tainted money was entrusted to the de facto complainant Thollappan (P.W.2). Andrews Kaviraj was asked to accompany Thollappan to the Sub Treasury office and be with Thollappan when he met the accused. (iv) At 02.30 p.m., the de facto complainant, shadow witness and the other members of the trap team left Vigilance and Anti-Corruption Office, Thanjavur. At 03.15 p.m., de facto complainant and the shadow witness went to the Sub Treasury office, Orathanadu. The de facto complainant (P.W.2) gave the application forms and the documents to the accused. On perusing the same, the accused told the de facto complainant that the doctor who was attested the documents, has not affixed the seal and returned the papers to the de facto complainant. At that time, there was power failure. The accused came out from his seat to the veranda. P.W.2 gave the tainted currency of Rs.500/- to the accused. The accused received it and kept it in his pocket. (v) The de facto complainant (P.W.2) along with the shadow witness Andrews Kaviraj (P.W.3) came out of the office, gave the prearranged signal to the trap team. The trap team entered the chamber of the accused and introduced themselves to the accused and Mr. Venkatesan, Sub Treasury Officer was seated next to him. The hands of the accused when dipped in the Sodium Carbonate solution, the solution colour turned into pink. The hand wash collected in two separate bottles for chemical analysis. The accused produced the tainted money. It was recovered and compared with the entrustment mahazar. The numbers tallied. The pocket portion of the accused was dipped in sodium carbonate solution, which also turned into pink proving positive phenolphthalein presence. On further search, the trap laying team were able to recover a sum of Rs.1,500/- from the accused and another sum of Rs.1,500/- from Mr. Venkatesan, Sub Treasury Officer. The numbers tallied. The pocket portion of the accused was dipped in sodium carbonate solution, which also turned into pink proving positive phenolphthalein presence. On further search, the trap laying team were able to recover a sum of Rs.1,500/- from the accused and another sum of Rs.1,500/- from Mr. Venkatesan, Sub Treasury Officer. After getting the Analyst Report (Ex.P.7) and the sanction to prosecute the accused from P.W.1, final report has been filed. (vi) Based on the final report, the Trial Court has framed charge under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred to as 'P.C. Act'] for demand and receiving Rs.500/- from Thollappan on 15.10.2003 at about 03.30 p.m. as illegal gratification and for making pecuniary advantage by abusing his position as a public servant. (vii) Before the Trial Court, the prosecution has examined 9 witnesses, marked 19 exhibits and 6 material objects. In defence, the accused has examined 3 witnesses and marked 3 exhibits to rebut the presumption that the de facto complainant had a motive to fix the accused due to previous enmity. (viii) The Trial Court after appreciating the evidence let in by both sides has found the accused guilty for the offence under Sections 7 and 13(1)(d) of P.C. Act and sentenced him to undergo 2 years rigorous imprisonment and to pay fine of Rs.2,500/- in default to undergo 3 months rigorous imprisonment for offence under Section 7 of P.C. Act and also sentenced to undergo 2 years rigorous imprisonment and to pay a fine of Rs.2,500/- in default to undergo 3 months rigorous imprisonment for the offence under Section 13(1)(d) read with 13(2) of P.C. Act. The Trial Court has ordered the sentences to run concurrently and period of detention already undergone by the accused to be set off under Section 428 Cr.P.C. It also ordered to return M.O.3 (Rs.500/-) to the de facto complainant and M.O.4 (Rs.1,500/-) and M.O.6 (Rs.1,500/-) to be returned to one Krishnamoorthy. Aggrieved by that, the appellant has filed the present criminal appeal. 4. The learned counsel appearing for the appellant/accused would submit that the Trial Court has failed to consider the evidence and explanation given by the accused. The alleged demand of bribe by the accused on 03.10.2003 or 13.10.2003 is not corroborated by any independent witnesses. Aggrieved by that, the appellant has filed the present criminal appeal. 4. The learned counsel appearing for the appellant/accused would submit that the Trial Court has failed to consider the evidence and explanation given by the accused. The alleged demand of bribe by the accused on 03.10.2003 or 13.10.2003 is not corroborated by any independent witnesses. The evidence of Tholappan (P.W.2) is tainted with mala-fide and there is no corroboration for his evidence. In the evidence, P.W.3 has categorically stated that the accused as an accountant has no role or duty to supply Family Pension Form and the same has not been considered by the Trial Court. To negative the prosecution case, the very fact that the accused has proved through P.W.6 that he has no role or duty to supply Family Pension Form. He has also proved through the defence witnesses that the father of the de facto complainant while he was alive had a quarrel with him regarding fixation of his pension. Thus, the accused has probabilised his defence through cross- examination as well as defence witnesses. While so, when there is no proof for demand or acceptance, the Trial Court ought not to have convicted the accused. Mere recovery of tainted money is not sufficient to convict the accused. The doubtfulness in the evidence of P.W.3 to admit that he participated in the trap proceedings without any written order from his superior. Further P.W.1, the authority who has accorded sanction, admits that he had a discussion with the investigation officer and gone through the draft final report. The discussion with the investigation officer and perusal of draft final report would have indirectly prejudiced the sanctioning authority. Hence, the sanction to prosecute is void for independent application of mind. 5. The learned counsel appearing for the appellant/accused would submit that the timing of First Information Report, despatch of the Report to the Court, entrustment mahazar and the recovery mahazar do not fall in the right sequence, which causes doubt in the manner in which trap was laid. So, on a cumulative assessment of the prosecution witnesses, there is enough lacuna in the prosecution case whereas the accused has given a possible explanation for the motive to lodge a frivolous complaint against him by P.W.2. Hence, the Trial Court Judgment is liable to be set aside. 6. So, on a cumulative assessment of the prosecution witnesses, there is enough lacuna in the prosecution case whereas the accused has given a possible explanation for the motive to lodge a frivolous complaint against him by P.W.2. Hence, the Trial Court Judgment is liable to be set aside. 6. Per contra, the learned Additional Public Prosecutor appearing for the State would submit that the appellant herein, who is the accountant in the Sub Treasury Office was in charge of maintaining the records pertaining to pensioners, admits that Srinivasan, the father of the de facto complainant had approached for re-fixation of his pension in view of pay revision. The defence document Ex.D.1 is the Family Pension file of Srinivasan. The revised pension after the pay revision has been fixed shortly before the death of Srinivasan. When his son Thollappan met the accused on 03.10.2003, he has instructed him to produce the relevant documents required for processing family pension fund. Accordingly, on 13.10.2003, the application forms were given with instruction to fill it up and get the signature of his mother and also reiterated the demand of Rs.600/-. That was later reduced into Rs.500/-. P.W.2 was told to bring the money along with the form on 15.10.2003. Accordingly, P.W.2 met the accused on 15.10.2003 along with the filled-up form and bribe money. But before going to Sub Treasury office, he has gone to Vigilance and Anti-Corruption Department Office at Thanjavur and lodged the complaint. The records pertaining to the pension papers of Srinivasan, which are found in Ex.D.1 and Ex.P.4 suffice to prove that on 15.10.2003 the application along with relevant documents were submitted by P.W.2 regarding grant of family pension to his mother, Lakshmi, wife of Srinivasan. The same has been returned to P.W.2 by the accused pointing out that the seal of the attestor is missing. The accused has come out from his seat to the veranda. When P.W.2 has offered Rs.500/- which was demanded as bribe by the accused on 03.10.2003 and 13.10.2003, the accused has received the same and kept it in his pocket. P.W.3, shadow witness has corroborated the evidence of P.W.2 regarding the receipt of tainted money by the accused. The accused has come out from his seat to the veranda. When P.W.2 has offered Rs.500/- which was demanded as bribe by the accused on 03.10.2003 and 13.10.2003, the accused has received the same and kept it in his pocket. P.W.3, shadow witness has corroborated the evidence of P.W.2 regarding the receipt of tainted money by the accused. In the mahazar (Ex.P.5) prepared for the recovery of the tainted money from the possession of the accused, apart from Rs.500/- tainted currency, he has produced Rs.1,500/- alleged to have been received from one Krishnamoorthy to pass bill of C.D.P.O. Office, Orathanadu. Therefore, the prosecution has proved beyond doubt that the appellant/accused has demanded illegal gratification to process the application and pursuant to that demand on 15.10.2003 received Rs.500/- from P.W.2, which was witnessed by P.W.3. The said bribe money was recovered under mahazar (Ex.P.5). In the absence of any explanation for reason to receive this money, the presumption under Section 20 of P.C. Act squarely applies against the appellant/accused and therefore the Trial Court finding is in accordance with law. 7. Point for consideration : “Whether the explanation offered by the accused probabilise his defence?” 8. P.W.2 is the son of Srinivasan. Srinivasan died on 15.07.2003. He was a pensioner under the Government of Tamil Nadu. The Sub Treasury Office, Orathanadu was in charge of his pension. Ex.P.4 is the application of Tmt.Lakshmi, wife of Srinivasan, seeking family pension and other benefits. The death certificate and legal heirship certificate attested by one Dr. K. Rajendran, dated 14.10.2003 with seal is part of Ex.P.4. The meeting of P.W.2 on 13.10.2003 is not denied by the accused nor the incident, which has been narrated by the prosecution on 15.10.2003, is also not denied. 9. The defence of the accused is that due to previous enmity, the de facto complainant has lodged a false complaint and triggered the trap proceedings. The mahazar (Ex.P.5) discloses few more facts namely, apart from the tainted money, Rs.3,000/- received from one Krishnamoorthy as bribe and shared by this accused and Sub Treasury Officer Venkatesan, has also come to light during the trap proceedings. However, though the money Rs.3,000/- given by Krishnamoorthy has been marked as M.O.4 and M.O.6, Krishnamoorthy has not been examined by the prosecution. However, though the money Rs.3,000/- given by Krishnamoorthy has been marked as M.O.4 and M.O.6, Krishnamoorthy has not been examined by the prosecution. The accused who had been found in possession of this Rs.500/- which was smeared with phenolphthalein and the numbers found in the entrustment mahazar (Ex.P.4) has later been recovered from the accused. 10. The defence taken by the appellant is that the sanctioning authority has not applied his mind to accord sanction (Ex.P.1). The learned counsel appearing for the appellant/accused would rely upon the Judgment in Assistant Collector of Customs v. Tey Teck Seng reported in (1992) 61 ELT 397 , wherein the Hon'ble Supreme Court has observed as under : “17. As pointed out by me, all the relevant records excepting the mahazar, statement of the accused and the green card ticket were not placed before the Additional Collector on 12-2-1986 by P.W. 4. There is no evidence that the adjudication proceedings, the show cause notice and the reply Ex. P-7 were placed before the sanctioning authority. Therefore, the Sanctioning Authority could not have applied his mind and granted sanction. The sanctioning authority had been submitted with a draft complaint even at the time of according sanction possibly to prejudice his mind and make him to concur with the view of the prosecution to file prosecution against the accused. Otherwise, there is no necessity at all for producing a draft complaint before the sanctioning authority while he granted sanction. The placing of a draft complaint before the sanctioning authority before he accorded sanction, is illegal and it is deprecated. The object of sanction has been very clearly stated by the Supreme Court in the judgment in Mohd. Iqbal Ahmedv v. State of A.P. (supra)”. 11. In the humble opinion of this Court, a perusal of draft final report per se cannot prejudice the sanctioning authority, when the sanctioning authority in this case has looked into all the materials relevant for prosecuting the accused had accorded sanction. Therefore, the said Judgment is not applicable to the facts of the present case. 12. From a reading of sanction (Ex.P.1) as well as deposition of P.W.1, this Court finds that there is no element to doubt that he failed to apply his mind independently before according sanction. He has listed out the documents, which he has perused and also narrated the facts and recorded his satisfaction for according sanction. 12. From a reading of sanction (Ex.P.1) as well as deposition of P.W.1, this Court finds that there is no element to doubt that he failed to apply his mind independently before according sanction. He has listed out the documents, which he has perused and also narrated the facts and recorded his satisfaction for according sanction. In his deposition he has stated that he saw the draft final report. But, it does not mean that he has been prejudiced by the draft final report. 13. The other explanation projected by the accused is that there was some animosity between him and the de facto complainant. To substantiate that he has examined D.W.1 and D.W.2. While D.W.1 speaks about some incident took place during the month of November, 2002, D.W.2 has spoken about the wordy quarrel between the accused and Deputy Superintendent of Police, Vigilance and Anti-Corruption on 15.10.2003. The evidence of these two witnesses does not indicate anything malice against the accused. In fact, in the cross-examination, P.W.2 has categorically denied to the suggestion that he has some animosity or ill-will against the accused. 14. The learned counsel appearing for the appellant/accused would also rely upon the following two Judgments to emphasize the point that mere recovery of tainted money is not a proof for Section 7 of P.C. Act : (i) T. Subramanian v. State of Tamil Nadu reported in (2006)1 M.L.J.(Crl.) 63. (ii) Crl.A.No.1163 of 2017, dated 14.07.2017 [Mukhtiar Singh (since deceased) through his L.R. v. State of Punjab]. 15. No doubt, mere recovery of tainted money without corroboration will not be sufficient to hold a person for guilty for offence under Section 7 of P.C. Act. Whereas, in this case P.W.3, a person unconnected and has no malice against the accused, had corroborated the version of P.W.2 regarding acceptance of Rs.500/- by the accused and keeping it in his pocket. After receipt of the application form along with the connected required documents, the accused has perused the document and has pointed out that the attestor had not affixed his seal in some of the documents and returned the application back to P.W.2. Thereafter, he has come out from his chamber and received the money from P.W.2. After receipt of the bribe money, the accused has retained the application form and other documents. Thereafter, he has come out from his chamber and received the money from P.W.2. After receipt of the bribe money, the accused has retained the application form and other documents. This clearly proves that expecting bribe money, which he has demanded earlier, he has pointed out some lapses in the application form, but once, the money is received he has retained the money with him. As an Accountant in the Treasury Office, though he may not be the signing authority of fixing family pension, from his own conduct and the endorsement made by him in the proceedings, the accused cannot escape pointing out that he has no direct role in fixing the family pension. 16. The very fact that the appellant/accused has in possession of the tainted currency and he is not able to explain how the currency came into his possession, but only giving reasoning for the motive to give complaint, is not sufficient to rebut the presumption under Section 20 of P.C. Act. When the prosecution is able to prove the factum of receiving gratification other than legal remuneration, it is for the accused to explain that the money received by him is not an illegal gratification. In this case, the explanation is not to the effect that the money recovered from him is not a gratification other than legal remuneration. His explanation is only to the effect that P.W.2 had some animosity and therefore he has given complaint to Vigilance and Anti-Corruption Department to fix him. The accused has failed to explain why he has received Rs.500/- from P.W.2 and kept it in his pocket. Whereas the evidence of prosecution clearly proves that the money was received by the accused from P.W.2 as illegal gratification. Therefore, the Judgment of the Trial Court is unassailable. 17. The learned counsel appearing for the appellant/accused would submit that the appellant is now 68 years old and he is not physically fit to undergo rigorous imprisonment. 18. Whereas the evidence of prosecution clearly proves that the money was received by the accused from P.W.2 as illegal gratification. Therefore, the Judgment of the Trial Court is unassailable. 17. The learned counsel appearing for the appellant/accused would submit that the appellant is now 68 years old and he is not physically fit to undergo rigorous imprisonment. 18. Taking note of the above-said submission, the sentence is liable to be modified as below: The appellant/accused is sentenced to undergo 1 year simple imprisonment and to pay fine of Rs.2,500/- in default to undergo 3 months rigorous imprisonment for offence under Section 7 of P.C. Act and also sentenced to undergo 1 year simple imprisonment and to pay a fine of Rs.2,500/- in default to undergo 3 months rigorous imprisonment for the offence under Section 13(1)(d) read with 13(2) of P.C. Act. 19. In the result, this Criminal Appeal is partly allowed and the Judgment of conviction dated 11.08.2008 passed in Special Case No.15 of 2004 by the learned Special Judge cum Chief Judicial Magistrate, Thanjavur at Kumbakonam is confirmed and the sentence imposed on the appellant/accused is modified as under : Sl. No. Offence Sentence imposed by the Trial Court Sentence modified by this Court 1. 7 of P.C. Act 2 years rigorous imprisonment and to pay fine of Rs. 2,500/- in default to undergo 3 months rigorous imprisonment. 1 year simple imprisonment and to pay a fine of Rs. 2,500/- in default to undergo 3 months rigorous imprisonment. 2. 13(1)(d) read with 13(2) of P.C. Act 2 years rigorous imprisonment and to pay fine of Rs. 2,500/- in default to undergo 3 months rigorous imprisonment. 1 year simple imprisonment and to pay a fine of Rs. 2,500/- in default to undergo 3 months rigorous imprisonment. The period of sentence already undergone by him is ordered to be set off under Section 428 Cr.P.C. The sentences are ordered to run concurrently. The Trial Court is directed to secure the appellant/accused and commit him to prison to undergo the remaining period of sentence. The bail bond if any executed by him shall stand cancelled.