JUDGMENT : (Prayer: Criminal Appeal is filed under Section 374 of the Code of Criminal Procedure, to allow this appeal by setting aside the conviction and judgment passed by the learned Special Judge Cum Chief Judicial Magistrate, Srivilliputtu, Virudhunagar District in Special C.C.No.5 of 2006 dated 09.04.2010 and may be pleased to acquit the appellant/accused No.2 from all the charges. Criminal Appeal is filed under Section 374 of the Code of Criminal Procedure, to call for the records of the case in Special C.C.No.5 of 2006 on the file of Special Court for corruption cases and Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur and examine the legality of the proceedings of the impugned Judgment dated 09.04.2010 passed in Spl.C.C.No.5 of 2006 and set aside the said impugned judgment and direct the Honourable acquittal of the accused.) 1. Challenging the judgment of the trial Court in Spl.C.C.No.5 of 2006, on the file of the learned Special Judge and Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur, the above two appeals have been preferred by the accused persons, who were found guilty by the trial Court. 2. The case of the prosecution is as below: (i) Dharmaraja, the Manager of Priya Herbals in his written complaint dated 23.08.2005 informed the Additional Superintendent of Police, District Vigilance and Anti Corruption, Virudhunagar that on 18.08.2005 at 10.30 a.m., he went to the Commercial Tax Office at Sivakasi and submitted the accounts of Priya Herbals for the year 2003-2004 to the Commercial Tax Officer No-I, Mr.Selvakumar. He, on verifying the accounts gave the final tax assessment letter. As per the said letter, M/s Priya Herbals was asked to pay 12% tax on the total turnover of Rs 4,43,040/- in addition 12% penalty and 5% surcharge for non submission of returns in time. Totally, as sum of Rs.88,60,080/- was demanded as tax, surcharge and penalty. (ii) Dharmaraja refuted the assessment and struck to his statement of account. To accept his statement of accounts, Selvakumar demands bribe of Rs 2000/- or else he will impose tax and penalty as found in the notice. He has told him to meet on 23.08.2005 at 11.00 a.m., with bribe money. Only if he gives bribe, he will accept the account submitted and sign. (iii) The Additional Superintendent of Police who received this complaint, directed Manmathapandian, Inspector of Police to register the case and investigate. He has told him to meet on 23.08.2005 at 11.00 a.m., with bribe money. Only if he gives bribe, he will accept the account submitted and sign. (iii) The Additional Superintendent of Police who received this complaint, directed Manmathapandian, Inspector of Police to register the case and investigate. Accordingly, Manmathapandian registered the FIR in Crime No.6 of 2005 for offence under section 7 of P.C Act, 1988 against Selvakumar, Commercial Tax Officer-I, Office of the Commercial Tax Office–1, Sivakasi and took up the investigation. He wrote to the Assistant Director, Co-operative Audit and Joint Director, Agricultural Department to depute a ‘D’ cadre staff to be as witnesses to the trap proceedings. Accordingly Rajmohan and Vanniyaraj reported to him. In the presence of these two witnesses, he demonstrated the significance of sodium carbonate – phenolphthalein test. Smeared the trap money of Rs.2000/- (4 x 500) with phenolphthalein power and entrusted to the de facto complainant Dharmaraja with instruction that he should take out the money only if the accused demands. Further, after the accused received the money he was asked to come out and give the signal to the trap team by whipping his face with his hand kerchief. (iv) The trap team lead by Manmathapandian reached the Commercial Tax Office No.1, Sivakasi at about 12.00 noon. The defacto complainant (Dharmaraja) and the shadow witness (Rajmohan) went inside the office. The trap team took position outside the office. (v) The defacto complainant (PW-3) and the shadow witness (PW-4) first met the office assistant Sithivinayagamorothy (A-2). He took them to the seat of Selvaraj (A-1). PW-3 told A-1 that he has brought the accounts for the year 2003-04. A-1 asked whether he has brought the money Rs 2000/-. PW-3 answered in affirmative. A-1 told PW-3 to keep the account books on the table and give the money to A-2. (vi) On receiving the money, A-2 counted it and kept it in his pocket. When PW-3 asked for assessment order, A-1 told them to wait for some time. Thereafter, both PW-3 and PW-4 came down from the room of A-1. PW-3 gave the prearranged signal to the trap team waiting outside. (vii)On receipt of the signal, Manamathapandian (PW-10) and others entered the Commercial Tax Office No-1. A-1 and A-2 were identified by PW-3 and P.W.10., enquired P.W.3 about the happenings in the accused room. Thereafter, both PW-3 and PW-4 came down from the room of A-1. PW-3 gave the prearranged signal to the trap team waiting outside. (vii)On receipt of the signal, Manamathapandian (PW-10) and others entered the Commercial Tax Office No-1. A-1 and A-2 were identified by PW-3 and P.W.10., enquired P.W.3 about the happenings in the accused room. P.W.3 then stated that the name of the person who demanded money was not Selvakumar but Selvaraj. By inadvertently, in his complaint he has said that the person demanded money was Selvakumar. (viii) He identified G.Sithivinayagamoorthy, Office Assistant who received tainted money and Selvaraj, CTO who demanded the bribe. When the trap laying Officer enquired G.Sithivinayagamoorthy about the bribe money, A-2 took out Rs.2,000/- from his bag and placed it on the table. A-2 explained that he did not receive the money on his own, he was instructed by A-1 to receive so he received the money from P.W.3. Thereafter, Sodium Carbonate solution was preferred. A-2 was asked to dip the hands, the solution turned pink, confirmed the presence of Phenolphthalein. The sample solution were collected in a bottle, labelled and sealed. The bottles are marked as M.O.2 and M.O.3. From the possession of A-1, records pertaining to the assessment of Priya Herbals were recovered. Recovery mahazar (Ex.P.4) was prepared narrating the entire trap proceedings and recovery of tainted money of Rs.2,000/- marked as M.O.1. 3. The trial Court considering the evidence let in by the prosecution has held that the charge against the accused persons are proved through the evidence of P.W.3 (de facto complainant) and shadow witnesses (P.W.4). Since the recovery of tainted money is proved beyond doubt, the accused is bound to explain the possession of the money which they have failed to explain. Therefore, holding that both the accused have failed to rebut the presumption under Section 20 of P.C.Act, they were held guilty. The contention of the appellant in Crl.A.(MD)No. 145 of 2010:- 4. The learned counsel appearing for the appellant/S.Selvaraj (A-1) would submit that the trial Court miserably failed to consider the inconsistency in the case of the prosecution. As per the complaint given by P.W.3, the person who demanded bribe is one Selvakumar. It is the specific case of the prosecution that on 18.08.2005 when he met Selvakumar at CTO Office he demanded Rs.2,000/- to accept the accounts of his company. As per the complaint given by P.W.3, the person who demanded bribe is one Selvakumar. It is the specific case of the prosecution that on 18.08.2005 when he met Selvakumar at CTO Office he demanded Rs.2,000/- to accept the accounts of his company. For the first time, P.W.3 has informed the trap laying officer after the trap, that the Officer who demanded and accepted money from him is Selvaraj and not Selvakumar. P.W.10 who registered the complaint Ex.P.4, had deposed that on receiving the complaint he made discreet enquiry about the accused and found that there was a person by name Selvakumar working in the Commercial Tax Office, where the appellant Selvaraj is also working. While the complaint and pre-trap mahazar reveals Selvakumar as a person who demands the bribe, all of a sudden the trap laying officer has fixed Selvaraj(A-1) and G.Sithivinayagamoorthy (A-2) who are not the accused in the complaint. The prosecution has not given adequate explanation for withholding and keeping back the said Selvakumar from producing him in the Court either as witness or as an accused. The inconsistency in the case of the de facto complainant renders him un-reliable. Based on the uncorroborative evidence of P.W.3 and P.W.4 who are interested witnesses, the trial Court ought not to have convicted the appellant. The prosecution has failed to justify the delay of 5 days in lodging the complaint regarding the demand of bribe. The manipulation in the date as found in the complaint and the error in the name of the Officer who demands the bribe would prove that the case of the prosecution is not supported by the reliable witnesses. 5. The learned counsel for the appellant would also point out the discrepancy in the evidence of the prosecution regarding the trap spot. while P.W.1 and P.W.4 have stated that the Office of the Commercial Tax Office No.I as trap spot, contrarily, in the mahazar Ex.P.14 the alleged place where bribe money received by the accused persons was at Commercial Tax Office No.IV CTO-I and CTO-IV are located at different directions and place. The contradictions regarding the site of trap goes to the root of the prosecution. In support of the said submission, the learned counsel would rely upon the Judgment of this Court in the case of State represented by Inspector of Police, Vigilance and Anti-Corruption Department, Chennai Vs. The contradictions regarding the site of trap goes to the root of the prosecution. In support of the said submission, the learned counsel would rely upon the Judgment of this Court in the case of State represented by Inspector of Police, Vigilance and Anti-Corruption Department, Chennai Vs. K.Kantha reported in 2008 (2) MWN (Cr.) 486. 6. The learned counsel for the appellant would also submit that the prosecution witnesses miserably failed to corroborate each other regarding the manner and place the tainted money recovered from A-2. In the mahazar (Ex.P.14), it is mentioned that the second accused who alleged to have received the bribe money was having it in his hand and put it on the table. Contrary to the documentary evidence Ex.P.14, P.W.3 has deposed that A-2 received money and kept it in his pocket. Whereas, P.W.10 trap laying officer has deposed that the second accused took out the tainted money from his pocket and kept it on the table. Thus, the documentary evidence and the ocular evidence vary with each other, which makes the case of the prosecution highly doubtful. The contention of the appellant in Crl.A.(MD) No. 142 of 2010:- 7. The learned counsel appearing for the appellant/second accused would submit that the order sanctioning to prosecute was not accorded by the competent authority. Even according to the prosecution witnesses, he did not demand any gratification from the de facto complainant and his name is not found in the complaint or in the First Information Report. The de facto complainant is not a competent person to lodge the complaint or person authorized to deal with the accounts of Priya Herbals. In the absence of document to show that he represents Priya Herbals and had authorisation to represent the owner of Priya Herbals, the trial Court ought not to have accepted the case of the prosecution. 8. The material contradictions regarding the entrustment mahazar, mode of transport by the de facto complainant and the trap team to the office of the accused, non seizure of the accounts book of Priya Herbals which alleged to have been submitted by P.W.3 to A-1 on the day of trap and the contradictions in the prosecution case in respect of recovery of tainted money put together renders the prosecution case unbelievable. 9. 9. Inspite of lacuna in the prosecution case the trial Court has convicted the appellant based on uncorroborative evidence of interested witnesses. Therefore, he sought for acquittal. Submissions of the Government Advocate (Crl.Side):- 10. The learned Government Advocate (Crl.Side) would submit that the complainant (P.W.3) who is representative of Priya Herbals had in his complaint and in deposition had indicated that A-1 as a person in charge of CTO-I demanded money to verify the accounts and to ignore the earlier assessment made by his predecessor and to accept the turn over amount as stated in the monthly returns filed by the Priya Herbals for the year 2003-2004. P.W.4 the independent witness has witnessed the entrustment of the tainted money to the de facto complainant and the demand of bribe by A-1 at the Commercial Tax Office. The recovery of money on the information given by A-2 is proved through P.W.4 and P.W.10. A-2 has admitted that he has received the money on the instruction of A-1. Thus the prosecution has proved beyond doubt that A-1 demanded bribe of Rs.2,000/- from P.W.3 and on 23.08.2005, directed P.W.3 to hand over the money to A-2. In turn A-2 accepted the money. The mis-description of A-1's name as Selvakumar in the complaint has been reconciled by the de facto complainant on the day of trap. Since the money was recovered from A-2 in the presence of A-1 and the prosecution having proved that A-2 received the bribe money on the instruction of A-2. Knowing fully well that the money as illegal gratification demanded earlier by A-1 to verify the accounts of Priya Herbals. Therefore, there is no prejudice is caused to the accused persons, though, their names were not mentioned in the First Information Report or in the complaint. 11. Regarding the place of trap, the learned Government Advocate (Crl.Side) would submit that there is no contradiction or discrepancy in the prosecution witnesses regarding the trap spot. A-1 is the CTO No-I at Sivakasi Commercial Tax office. The money was received by A-2 while he was in the seat. After completion of trap, the mahazar was preferred at CTO No-IV. Therefore, the case of the prosecution cannot be doubted on this score. 12. Point for consideration:- “Whether the Court below is right in considering the prosecution evidence sufficient to whole the accused guilty”? 13. The money was received by A-2 while he was in the seat. After completion of trap, the mahazar was preferred at CTO No-IV. Therefore, the case of the prosecution cannot be doubted on this score. 12. Point for consideration:- “Whether the Court below is right in considering the prosecution evidence sufficient to whole the accused guilty”? 13. P.W.3 who claims himself as Manager of Priya Herbals have not produced any documents that he was authorized to represent Priya Herbals before the Commercial Tax Office. Ex.P.7 and Ex.P.8 are notices issued by the Commercial Tax Department to Priya Herbals to attend the enquiry and produce the accounts relating to the year 2003-2004. These two notice are dated 18.11.2004 and 20.12.2004 respectively. While these notice were served on Priya Herbals, one Jeyasingh was the Commercial Tax Officer No.I. The First accused has succeeded Jeyasingh only on 31.07.2005. The said Jeyasingh examined as P.W.5. He has confirmed initiating action to collect tax and penalty from Priya Herbals who have failed to submit the annual accounts. 14. Ex.P18 and Ex.P.19 which are the assessment registers pertaining to Priya Herbals are identified by P.W.5. Ex.P.3 is the notice dated 10.06.2005 issued to Priya Herbals by the Office of the Commercial Tax Officer No.I, Sivakasi. In this notice it is specifically stated that Priya Herbals despite three summons had not produced their account to verify the declared turn over. Therefore, they are liable to pay 12% tax for the declared turn over and another 12% tax equal amount for willful non-production of the account besides at 5%. Opportunity has been given to Priya Herbals to file his objections if any to the proposed notice. P.W.3 who claims to be Depot Manager of Priya Herbals alleges in his complaint that one Selvakumar demanded Rs.3,000/- to ignore the said notice and to accept their account. 15. The prosecution case therefore falls to ground on three points. First there is no document to show either P.W.3 or Priya Herbals has availed the opportunity to file the objection within 15 days, on receipt of the demand marked as Ex.P.3. There is no evidence to show that the accounts were presented to A-1 on the day of trap and neither P.W.3 nor any representatives of the Priya Herbals had explained why the additional tax should not be imposed as found in Ex.P.3. There is no evidence to show that the accounts were presented to A-1 on the day of trap and neither P.W.3 nor any representatives of the Priya Herbals had explained why the additional tax should not be imposed as found in Ex.P.3. The last point is that if really the de facto complainant has met the accused, he need not have wrongly mentioned the name of the first accused as Selvakumar. 16. Further, this Court finds that the trap laying officer before registering the complaint, is supposed to make a discreet enquiry about the complaint as well as the public servant against whom the complaint lodged. If really, P.W.10 had made some preliminary enquiry, he would have found that there is no CTO by name Selvakumar in Sivakasi Commercial Tax Office. Because P.W.10 has not made any preliminary enquiry, he has registered a case against one Selvaraj who is a non-existing person and proceeded with trap arrangement. 17. Therefore, the case of the prosecution that on 18.08.2005 A-1 demanded Rs.2,000/- to process the accounts of Priya Herbals, fails. 18. Regarding the incident took place on the day of trap, i.e., on 23.08.2005 P.W.3 and P.W.4 had deposed that the account books were submitted to A-1 and as per directions of A-1 the tainted money was given to A-2, who received the money and counted it and kept it in his pocket. Neither the accounts book nor the shirt in which A-2 alleged to have kept the tainted money, are recovered. 19. Further even according to the prosecution, the hands of A-1 was subjected to Phenolphthalein only after he was asked to handle the tainted money. Therefore, the presence of phenolphthalein in the hands of A-2 will not give a prima facie impression that he handles the bribe money with knowledge that it is illegal gratification to do an act in favour of de facto complainant. 20. Considering the severe lapse in the investigation and lacuna in the prosecution witnesses, merely on presumption under Section 20 of P.C. Act, these appellants cannot be convicted. 21. The prosecution at all stages had failed to prove beyond doubt that A-1 demanded bribe on 18.08.2005 or A-1 demanded and obtained Rs.2,000/- on 23.08.2005 through his assistant A-2. The prosecution has to prove that A-2 had in his possession consciously the tainted money. 21. The prosecution at all stages had failed to prove beyond doubt that A-1 demanded bribe on 18.08.2005 or A-1 demanded and obtained Rs.2,000/- on 23.08.2005 through his assistant A-2. The prosecution has to prove that A-2 had in his possession consciously the tainted money. When the prosecution evidence is defective right from proving factum of demand, acceptance and recovery, merely by invoking Section 20 of P.C.Act, the appellants cannot be convicted. The trial Court has not tested the prosecution witnesses properly. The contradictions and lapse in the case of the prosecution enures the benefit of doubt in favour of the appellants. Hence, these appeals are liable to be allowed. 22. In the result, these Criminal Appeals are allowed. The conviction and sentence imposed by the trial Court against the appellants in Special C.C.No.5 of 2006 dated 09.04.2010 vide its Judgment dated 09.04.2010 is hereby set aside. Fine amount shall be refunded to the appellants. Bail bond, if any, executed by the appellants shall stand cancelled.