D. VELAYUTHAMversusSTATE REP. BY INSPECTOR OF POLICE, SALEM TOWN, CHENNAI

                    [2015J 6-s'.c.R. 361 -


                     D. VELAYUTHAM                               A
                            v.
    STATE REP. BY INSPECTOR OF POLICE, SALEM
                 TOWN, CHENNAI
             (Criminal Appeal No.787 Of 2011)                    B
                     MARCH 10, 2015
       [DIPAK MISRA AND VIKRAMAJIT SEN, JJ.]
      Prevention of Corruption Act, 1988- s. 13(1)(d) rw 13(2)
 - Penal Code, 1860 - s. 1208 - /llegal gratification - Trap     C
 case - Multiple demanders in common bribe demand -
 Show cause notice against complainant for payment of
 excise duty - Said notice recalled - Thereafter, issuance of
 another notice by A 1-Superintendent, as its signatory -
                                                                 0
 Complainant met A 1 and his subordinate, A2 - Graft
 demand made by A 1 and A2 - Complainant informed the
 police - Trap laid against A 1 and A2 - Complainant went to
 the office cabin of A 1 but he was not present there - A2
 told complainant that A 1 had left shortly and had instructed   E
 A 1 to collect money on behalf of both of them - Complainant
 handed over the money to A2 - Transaction witnessed by
 independent witness -A2 caught by trap team -A2 returned
currency notes first going into A 1's office and then from his
own desk - Arrest of accused - Conviction and sentence           F
of A 1 and A2 uls. 1208 /PC rw ss. 7 and 13(2) rw s. 13(1)(a)
and (b) - High Court set aside the conviction of A 1 u/s.
 13(1)(d) rw 13(2) while upheld conviction of A2 thereunder;
and upheld the conviction of A 1 and A2 u/s 1208 /PC and
s. 7 but reduced the sentence to imprisonment of one year        G
each - On appeal: held: Courts below rightly recognised
the issuance of the notice as a graft-inducing ploy, designed
to pester complainant into paying bribes to the accused for
their recalling! rescinding the demand notice in return - In
cases where there are multig/n demanders in a common or          H
362        SUPREME COURT REPORTS               (2015] 6 S.C.R.


A conjoint bribe demand, and for whatsoever reason, only one
  receives the sum on their behalf, and is entrapped in
  consequence, depending on the strength of the remainder
  of evidence, constructive receipt by co-accused persons is
  open to establishment by the prosecution, in order that those
B who intermediately obtain bribes be latched with equal
  culpability as their co-accused and entrapped receivers - If
  the receipt and handling of bribe money by A2 so
  convincingly and inexorably points towards his custodianship
  of parl of the same bribe amount on behalf of his superior
C officer, A 1, then A 1 cannot rely on mere non-handling/ non-
  receipt of the bribe money, as his path to exculpation - It is
  clear that A 1 was present in the office that forenoon - A 1's
  absence from the office at the time of the trap strengthens,
  rather than weakens, the claim that his junior officer, A2,
0
  was received parl of the bribe amount as a custodian on
  his behalf - Furlher, the circumstances and testimonies of
  complainant and A2 substantiates the conviction of A 1 -
  Thus, conviction of A 1 sustainable - Evidence Act, 1872 -
E s. 133 and Illustration (b) to s. 114.

          M.O.Shamsudhin v. State of Kera/a 1995 (2) SCR
      900:(1995) 3 SCC 351; State of Bihar v. Basawan Singh
      AIR 1958 SC 500:1959 SCR 195 - referred to.
 F                       Case Law Reference

      1995 (2) SCR 900          referred to.          Para 6

      1959 SCR 195              referred to.          Para 7
G           CRIMINAL APPELLATE JURISDICTION: Criminal
      Appeal No. 787 of 2011

         From the Judgment and Order dated 08.09.2010 of
  the High Court of Judicature at Madras in Crl. Appeal No.
H 1214 of 2001.
R :b~VEilAYUTHAMv. S'T'ATE REP. BY INSPECTOR OF  363
POLICE, SALEM TOWN, CHENNAI [VIKRAMAJIT SEN, J.]

                           WITH                                 A
Crl. A. No. 788 of 2011

      R. Anand Padmanabhan, Shashi Bhushan Kumar,
K. K. Mani, T. Archana for the Appellant.
                                                                B
       Rajiv Nanda, Prakriti Purnima, B. V. Balaram Das,
Arvind Kumar Sharma for the Respondent.

       The Judgment of the Court was delivered by
                                                                c
        VIKRAMAJIT SEN, J. 1. These two Appeals
before us assail the common Judgment dated 8.9.2010 of
the Madras High Court which only partly allowed the Appeals
before it, in favour of the Accused-Appellants. The Appellant
in Criminal Appeal No. 787/ 2011 is the First Accused;          o
Appellant in Criminal Appeal No. 788/ 2011 is the Second
Accused. The High Court partly allowed both Appeals, setting
aside the conviction of Accused 1 under Section 13(1) (d)
read with 13(2) of the Prevention of Corruption Act, 1988,
whilst upholding Accused 2's conviction thereunder; and         E
affirming the conviction of both Accused 1 and Accused 2
but reducing their sentence under Section 120B, IPC, and
Section 7 of the PC Act, to imprisonment of one year each.

        2. Recapitulating the facts leading up to these F
Appeals, Accused 1 and Accused 2 were, at the time of the
perpetrations, employed as officers with Central Excise IX
'E' Range. Accused 1 held the rank of Superintendent, and
Accused 2, his subordinate, Inspector of Excise in the same
office. The Complainant (PW2 before the Trial Court), a G
manufacturer of 'camel back rubber slab', received .a show
cause notice for payment of Excise duty amounting to Rs.
1,01,333/-. PW2 attended an enquiry held before the
Assistant Commissioner (PW4) of Central Excise, on
07.20.1996; the notice was recalled following this Enquiry. H
364         SUPREME COURT REPORTS                   (2015] 6 S.C.R.


A     Thereafter, PW2 received yet another show cause notice,
      dated 24.05.1996, issued by Accused 1 as its signatory,
      demanding 'difference amounts' (as recorded by the Trial
      Court) of Rs. 1,23, 193/-. · PW2 visited the office of both
      Accused on 04.06.1996 at 11 :30 am, where he met both
 B    Accused 1 and Accused 2. Upon questioning the Accused
      persons about the second notice, PW2 was confronted with
      a bribe demand from Accused 1 of Rs.1000/- for each
      Accused whereto Accused 2 concurred.                   The bribe
      demanded was to be paid by PW2 to both Accused on the
C     same day, at 4:30 pm. PW2 immediately thereafter went to
      the office of the Superintendent of Police and reported this
      illegality, whereupon PW6, the Inspector, prepared a trap.
      As was planned, PW2 handed over to PW6 currency notes
      totalling Rs. 2000, in presence of two independent witnesses,
0
      PW3 and another. PW6 explained to PW2 the working of
      the Sodium Carbonate test characteristic of trap cases, and
      proceeded to smear the notes (M.0.1 currency series) with
      phenolphthalein powder, before returning them to PW2, who
E     placed them in his shirt pocket. An entrustment mahazar
      was prepared. PW2 was instructed to signal the trap team
      upon handing over the notes to the Accused, and PW3 was
      instructed to accompany him and witness this receipt of the
      illegal gratification. PW2 went to the office cabin of Accused
F     1, who was not to be found present there, but on encountering
      Accused 2, PW2 was told by him that Accused 1 had shortly
      earlier left the office, to visit his indisposed wife. Accused 2
      told PW2 that he had been instructed by Accused 1 to collect
      the moneys on behalf of them both. PW2 handed over the
G     currency notes to Accused 2, who then handled these with
      both hands, and placed them in his shirt pocket. PW3
      witnessed the transaction, having stood alongside PW2.
      PW2 walked out of the office and signalled to the trap team,
      whereupon PW6 entered the office and subjected Accused
H     2 to the sodium carbonate solution test, which tested
  D. VELAYUTHAM v. STATE REP. BY INSPECTOR OF    365
POLICE, SALEM TOWN, CHENNAI [VIKRAMAJIT SEN, J.]

affirmative, both hands of Accused 2 having been dipped in A
the solution, turning it pink. Accused 2 was then directed by
PW6 to return the notes, which he did, by first going into
Accused 1's office, and, thereafter back to his own desk,
where the currency notes had been kept inside his right
drawer. The currency notes were then surrendered to PW6. B
A mahazar was prepared, the incriminating property seized,
and two witnesses signed the mahazar. Accused 1 was
subsequently arrested.

       3. Both Accused were charged with offences under C
the IPC and the Prevention of Corruption Act, namely, Section
120-B, IPC, read with Sections 7 and 13(2) read with Sections
13(1 )(a) and (b) thereof. The Trial Court concurrently
convicted and sentenced both Accused for all of the offences
wherefore Accused were charged, the crest of their awarded D
incarceration being 2 years, for the convictions secured under
Sections 1 and 13 of the Prevention of Corruption Act. The
Madras High Court, as finds mention in our exordium, partly
allowed the Appeals before it, modifying the Trial Court's
order therewithal.     '                                       E

        4. The conviction of Accused 2 is unproblematic.
Accused 2 was successfully entrapped by the trap team with
Rs. 2000/- recovered from his possession. He has admitted
the receipt of the bribe amount. The only effort at proving F
his innocence has been the submission that receipt of the
entire sum was on behalf of Accused 1, no part of which
was demanded by Accused 2 for his own keeping and
consumption. This specious defence would have us believe
that Accused 2's ma/a fides extended only to being an abettor G
to the principal perpetrator, Accused 1, and went no further.
We are more inclined to accept PW2's more robust and
rounded account that Accused 2 accepted the sum both for
himself and on behalf of Accused 1, in preference to Accused H
2's claim that he was personally uninvolved, but merely an
366         SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A  abettor-custodian on Accused 1's behalf. Since the defence
   of Accused 2 stands already breached by his admission of
   his facilitation of an illegal act albeit allegedly on Accused
   1's behalf, we can safely proceed further and affirm the
   concurrent conclusion from the Complainant's evidence that
 B part of that sum would have been for the fulfilment of the
   bribe demand of Accused 2.

              5. A commentary on conviction of Accused 1 will, in
      the face of the facts, necessarily be more elaborate. Accused
C     1 was not present at the execution of the trap, and is at first
      glance, conveniently poised to deny any and all knowledge
      of the bribe-taking by Accused 2 on his behalf. Accused 1
      has expectedly disavowed Accused 2 and denied making
      any bribe demand from the Complainant, and has in turn
D     thrown doubt on the Complainant's testimony by accusing
      him of being an interested or partisan witness, exacting
      vengeance against Accused 1 for issuing the second notice.
      Accused 1 has maintained that the second notice was bona
      fide, and was issued only for the purpose of extending the
 E    limitation period connected with the Excise demand in
      question. The Assistant Commissioner, PW4, accepted this
      rationale in his evidence given before the Trial Court but
      deposed that Accused 1 ought to have obtained the
 F    necessary permission from him before issuing the second
      notice, which issue had already been adjudicated earlier by
      PW4. It is on this basis that the second notice was held to
      be illegal by both the Courts below.

          6. This Court has ratiocinated in significant length and
G detail on the nature of evidence commonly encountered in
  trap cases in anti-corruption prosecutions, appreciably
  drawing the distinction between accomplice evidence, and
  decoy/ trap witness evidence. Both categories are vitally
H important in this case. Accomplice evidence is addressed
  by Sections 133 and 114 (b) of the Evidence Act, which
  D. VELAYUTHAM v. STATE REP. BY INSPECTOR OF    367
POLICE, SALEM TOWN, CHENNAI [VIKRAMAJIT SEN, J.)

though does not make explicit use of the word "accomplice".            A
 In M.O.Shamsudhin v. State of Kerala (1995) 3 SCC 351,
this Court has observed that "the relation between Section
 133 which is a rule of law and Illustration (b) to Section 114
which is a rule of prudence has been the subject of comment
 in a large number of decisions. However, it has emerged               B
that a conviction based on the uncorroborated testimony of
 an accomplice is not illegal though an accomplice may be
unworthy of credit for various reasons. Reading Section 133
and Illustration (b) to Section 114 of the Evidence Act
together, the Courts in India have held that while it is not           C
illegal to act upon the uncorroborated testimony of the
accomplice the rule of prudence so universally followed has
to amo!..lnt to rule of law that it is unsafe to act on the evidence
of an accomplice unless it is corroborated in material aspects
                                                                       0
 so as to implicate the accused. The reasons for requiring
corroboration of the testimony of an accomplice are that an
 accomplice is likely to swear falsely in order to shift the guilt
from himself and that he is an immoral person being a
participator in the crime who may not have any regard to               E
any sanction of the oath and in the case of an approver, on
his own admission, he is a criminal who gives evidence under
a promise of pardon and supports the prosecution with the
hope of getting his freedom". In the prosecution confronting
us, Accused 2 has given testimony from the locus of an                 F
alleged accomplice to the crime. His incriminating
asseverations against his co-accused would, on the evidence
available in this case, require interactive corroboration: the
testing and authentication of Accused 2's testimony against
the strength and degree of circumstances suggestive of                 G
Accused 1's guilt.

      7. Insofar as the Complainant's testimony against
Accused 1 is concerned, the salutary ratio extractable from
previous decisions on the standing of trap witnesses is that H
368         SUPREME COURT REPORTS                    (2015] 6 S.C.R.


A Courts are not to be swayed by the semantics of describing
  these witnesses as antecedently "interested" or "partisan" in
  their testimonies. Rather, their testimonies can only be so
  stigmatised, and suffer the evidentiary consequence of
  necessary corroboration, on a casuistic basis, that is to say,
B whether corroboration is necessary or not will be within the
  discretion of the court, depending upon the facts and
  circumstances of each case.

              8. Witnesses who are particeps criminis, on the other
C     hand, correctly carry a lower degree of presumed credibility,
      their evidentiary motivations sullied by their prior participation
      in the criminal act precisely whereagainst they subsequently
      elect to testify. This selfsame distinction and posture may
      derive sustenance from the decision of a Constitution Bench
D     of this Court in State of Bihar v. Basawan Singh AIR 1958
      SC 500, where Their Lordships held that no inflexible rule
      had been laid down in an earlier Judgment that the evidence
      of the witnesses of the raiding party must be discarded in
      the absence of any independent corroboration. Their
E     Lordships opined that: "if any of the witnesses are
      accomplices who are particeps criminis in respect of the crime
      charged, their evidence must be treated as the evidence of
      accomplices is treated; if they are not accomplices but are
F     partisan or interested witnesses, who are concerned in the
      success of the trap, their evidence must be tested in the
      same way as other interested evidence is tested by the
      application of diverse considerations which must vary from
      case to case, and in a proper case, the Court may even look
G     for independent corroboration before convicting the accused
      person".

          9. It would therefore be a derogation and perversion
  of the purpose and object of anti-corruption law to invariably
H presuppose that a trap/ decoy witness is an "interested
  witness", with an ulterior or other than ordinary motive for
  D. VELAYUTHAM v. STATE REP. BY INSPECTOR OF    369
POLICE, SALEM TOWN, CHENNAI [VIKRAMAJIT SEN, J.]

ensuring the inculpation and punishment of the accused. A
The burden unquestionably is on the defence to rattle the
credibility and trustworthiness of the trap witness' testimony,
thereby bringing him under the doubtful glare of the Court
as an interested witness. The defence cannot be ballasted
with the premise that Courts will, from the outset, be guarded B
against and suspicious of the testimony of trap witnesses.
We are of the opinion that the law hitherto expressed by this
Court upholds precisely this exposition.

       10. Here, a bald allegation by the defence of PW2's C
(Complainant/ trap witness) interest in falsely implicating
Accused 1 will not suffice. By all accounts, PW2 had initially
earned a favourable order by the Assistant Commissioner,
who recalled the demand notice issued to PW2. Thereafter,
Accused 1 proceeded to issue another demand notice. Only D
pursuant to this vexatious, illegal and unchartered demand
notice did the first meeting take place between the
Complainantand Accused 1 and Accused 2, where the graft
demand made by both these officers arose, followed by the
Complainant's complaint to the Police, and the laying of the E
trap. There is no discernible motive for the victim to falsely
implicate Accused 1.

        11. The Complainant's testimony evinces verity on
yet another count. In his complaint, the Complainant has F
listed Accused 1- the absentee at the trap- as the First
Accused, whereas Accused 2, his subordinate, is the Second
Accused. It is at once apparent that, having apprised the
trap officer, and set up the trap against Accused 1 and
Accused 2, the Complainant could neither have prevised G
nor foreknown that Accused 1 would suddenly leave for the
hospital to attend to his ailing wife, and thereby, be so
mischievously or fortuitously inculpated in absentia, as is
being put to us by Accused 1. Had the Complainant's snare H
been mischievously and mendaciously directed towards
370       SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A Accused 1, it as open a possibility that the Complainant as
  trap witness would actually have encountered both Accused
  1 and Accused 2, and been met with instead by Accused 1's
  rejection of the bribe, as Accused 1 would have us believe.
  In other words, the motive and modus operandi attributed
B by Accused 1 to the Complainant would demand as its
  predicate that the Complainant knew that Accused 1 would
  not be in the office at the time of entrapment. This predication
  cannot stand, as it has not even remotely been suggested
  by Accused 1 whether, and if so, how, the Complainant could
C have known or imagined that Accused 1 would be absent
  from the office at the precise hour of entrapment.

          12. From the perspective of the Complainant, Accused
  1 would have been the ostensibly competent authority, and
D not his junior, Accused 2. Accused 2 did not have the
  ostensible authority to himself withdraw the demand notice
  which was issued and signed by Accused 1. The source of
  the bribe demand would most likely have been the ostensible
  authority as regards the notice, that is to say Accused 1 and
E not Accused 2, though it is proven that Accused 2 too
  demanded his moiety, and he was eventually trapped while
  taking it. The Trial Court was palpably percipient of this
  ostensibility, albeit a different dimension thereof, concluding
F that the evidence of PW2 decoy is well corroborated by
  circumstantial evidence.

           13. Any defence of bona fide issuance by Accused 1
  of the second notice, putatively issued for limitation purposes,
  is swiftly undercut by the proven illegality of the notice, prior
G imprimatur of the Assistant Commissioner neither having
  been sought, nor received. Both Courts below have rightly
  recognised the issuance of the notice as· a graft-inducing
  ploy, designed to browbeat the Complainant into paying
H bribes to the Accused-Officers for their recalling/ rescinding
  the demand notice in return.
  D. VELAYUTHAM v. STATE REP. BY INSPECTOR OF    371
POLICE, SALEM TOWN, CHENNAI [VIKRAMAJIT SEN, J.]

        14. Though this Court has stressed the need and            A
significance of phenolphthalein as a trap device in corruption
cases, so as to allay doubts about the actual receiving of
bribes by accused persons, there may be cases where there
are multiple demanders in a common or conjoint bribe
demand, and for whatsoever reason, only one receives the           B
sum on their behalf, and is entrapped in consequence.
Depending on strength of the remainder of evidence, in these
cases, constructive receipt by co-accused persons is open
to establishment by the prosecution, in order that those who
intermediately obtain bribes be latched with equal culpability     C
as their co-accused and entrapped receivers. This will, of
course, discount those cases where the trap is successful
only against one and not the other official, the latter having
refused to accept the bribe tendered. In this case, the trap
                                                                   0
would have clearly failed against such an official, and there
could be no question of the application of constructive receipt.
If the receipt and handling of bribe money by Accused 2 so
convincingly and inexorably points towards his custodianship
of part of the same bribe amount on behalf of his superior         E
officer, namely Accused 1, then Accused 1 cannot rely on
mere non-handling/ non-receipt of the bribe money, as his
path to exculpation. This Court's construal of anti-corruption
cases is sensitive even to these byzantine methods of bribe-
taking, and where an evader escapes a trap, constructive           F
receipt has to be an alternate means of fastening criminal
culpability.

        15. Accused 1's counsel before the Trial Court denied
both Accused 1's presence, as also participation, in any G
meeting in the office with PW2 on the morning of 04.06.1996,
stating that Accused 1 could not have been present at the
alleged preliminary meeting where the bribe demand
surfaced, as Accused 1 had been summoned to the Head
Office that very morning. The Trial Court correctly negated H
372       SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A this claim, finding that Accused 1 had not himself stated
  anything to this effect under Section 313, Cr.P.C., nor led
  any evidence by examining any of the officials from the head
  office. The testimonies of DW2 and DW3, stating the
  absence of Accused 1 in the office at the relevant time, were
B disbelieved, keeping in view their subordination, and
  therefore likely tutelage as witnesses, being beholden to
  Accused 1 and his status as superior. The attendance register
  of the office also marked the presence of Accused 1 on
  04.06.96, and whilst it has been accepted that Accused 1
C was not present at the time of receipt (in support whereof he
  examined the doctor attending to his wife), Accused 1 does
  not have any similar external alibis to uphold his claim of
  having been summoned to the head office at the hour of the
  bribe demand. It is, in our view, positively settled that Accused
0
  1 was present in the office that forenoon. Beyond this point,
  the conviction of Accused 1 will depend upon a convincing
  commixture of circumstances and testimonies of the
  Complainant and Accused 2, which, as we have already
E declared, we find firmly substantiated.

          16. M.O. Shamsudhin, bearing some degree of
  factual resemblance to this case qua the trapping of one
  accused and evasion by other, is analogically assistive for
F the present determination. In that case, the senior accused,
  A-1, had been requested to issue a patta in favour of the
  complainant. A-2, A-1 's junior officer, was given the trap
  money in A-1 's office and on his behalf by the complainant,
  who was accompanied by a trap witness. On exiting the office
G of A-1, A-2 was at once apprehended. Although A-1 had not
  been entrapped per se, he was found to be conclusively
  incriminated by the circumstances and evidence of the
  complainant. The Court held: "In the ins~ant case, PW1 has
  no axe to grind againstA-1. It is not in dispute that he had to
H get a patta issued A-1 and he categorically stated that A-1
  D. VELAYUTHAM v. STATE REP. BY INSPECTOR OF    373
POLICE, SALEM TOWN, CHENNAI (VIKRAMAJIT SEN, J.)

had made the demand.A-2 was his assistant and the tainted A
money was recovered from A-2 while he was just going out
of the office of A-1. Unless A-1 has demanded the mone.y
and has also directed him to hand over the same to A-2,
there was no reason at all as to why PW1 should hand over
the money to A-2. PW1 has consistently stated that A-1 B
demanded the bribe and that A-2 received the amount as
stated by him. Therefore it cannot be said that there is no
corroboration regarding the demand. This is a case where
each of the accused tried to throw the blame on the other
but taking the overall circumstances into consideration in c
the light of evidence of PWs 3 and 4 along with the evidence
of PWs 1 and 2 both Courts below have consistently held
that the evidence of these witnesses establishes the guilt of
the accused and we see no reason to come to a different
                                                              0
conclusion".

,       17. Analogously applying the facts of this case to the
present fact set, we find the conviction of Accused 1 perfectly
sustainable. It is an argument a fortiori supportive of Accused
1's conviction herein, since in Shamsudhin; A-2's receipt in       E
A-1's office on behalf of A-1 could conceivably have been
repudiated by A-1 on the ground that he himself could have
taken receipt of the bribe amount in his own office, being
physically present there at the time of payment, and need          F
not have relied on his junior officer to take receipt thereof on
his behalf. Contrarily, in the case before us, Accused 1's
absence from the office at the time of the trap strengthens,
rather than weakens, the claim that his junior officer, Accused
2, was receiving part of the bribe amount as a custodian on        G
his behalf.

      18. In view of the above conspectus, we dismiss both
Appeals, and sustain the Impugned Judgment and Order of
the Madras High Court below. Bail of both Accused stands H
hereby cancelled. Consequently, it is directed that the
374          SUPREME COURT REPORTS            [2015] 6 S.C.R.


A Accused persons are to be taken into custody forthwith, to
  serve out the remainder of their sentences.

             19. The Appeals are dismissed accordingly.     The
      Interim Order is recalled.
 B
      Nidhi Jain                               Appeals dismissed.