Holding

The conviction of Subbusingh under the Prevention of Corruption Act is correct as the presumption under Section 20 applies, placing the burden on the accused to disprove receipt of a bribe.

Summary

Subbusingh, a Sub‑Inspector of Police, demanded a bribe of Rs 500 from parties involved in a land dispute, using his friend Rajappan to collect the money and threatening the complainant with false criminal charges. A trap was set up in which the money was tested with phenolphthalein, which showed a positive result on Subbusingh's hands. The trial court acquitted both Subbusingh and Rajappan, but the Madras High Court convicted Subbusingh under the Prevention of Corruption Act, 1988 and upheld Rajappan's acquittal. On appeal, the Supreme Court held that the demand and receipt of the money established a presumption of bribery under Section 20 of the Act, shifting the burden to the accused to prove the amount was not a bribe. The Court found the evidence, including the phenolphthalein test and witness testimony, sufficient to sustain the conviction and dismissed the appeal.

Issues considered

Whether the demand and receipt of money by a police officer constitute an offence under Sections 7, 12, 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988.
Whether the presumption of receipt of bribe under Section 20 of the Act arises in the present facts, thereby shifting the burden of proof to the accused.
Whether the evidence, particularly the phenolphthalein test and witness statements, is sufficient to prove the demand and receipt of bribe.
Whether the High Court was correct in setting aside the trial court’s acquittal of the accused Sub‑Inspector.

Legislation cited

Prevention of Corruption Act, 1988s. 12, s. 13(1)(d), s. 13(2), s. 20, s. 7

Subjects

Prevention of Corruption Actbribepolice officerSection 20 presumptionphenolphthalein testcriminal appealdemand and receipt of bribeevidentiary burden

Judgment

[2009] 7 S.C.R. 383

. SUBBUSINGH A
V.
STATE BY PUBLIC PROSECUTOR
, Criminal Appeal No. 402 of 2002
MAY 4, 2009
B
[DR. ARIJIT PASAYAT, D.K. JAIN AND DR.
MUKUNDAKAM SHARMA, JJ.]
Prevention of Corruption Act, 1988 - ss. 7 rlw 12 and
13(2) rlw 13(1)(d) r/w 12 and 20-Demand and receipt of bribe
- By police officer (A 1) through his friend (A2) -- Threatening C
the complainant to implicate him in criminal case - Trap
arranged - Phenolphthalein test positive -Acquittal of both
the accused by trial court - High Court convicting A-1 while
upholding acquittal of A-2 - On appeal, held.: Facts of the
case and conduct of A-1 establish his guilt - The occurrence D
leading to demand of the bribe also established - Once it is
proved that money was demanded as br{/Je and the same was
received by the accused, s.20 comes into play- Once there
is a presumption u/s 20, it is for the accused to establish that
the a.mountwas not received as bribe - Conviction of A-·1 bY. E
High Court is correct. ,,, ·

,,..,,,. ,-..;· CRIMINALAPPELLATE JURISDICTION : Crimin'afAp~al
No. 402 of 2002
F,
From the Judgement and Order dated 20.11.2001.of the . -
Hon'ble High Court of Judicature at Madras in Criminal Appea.1 ·.
No. 316 of 1993
P.P. Rao, K.V. Visanathan, B. Raghunath, Abhispek
Kaushik, Vijay Kumar, with him for the Appellant. G --
S. Thananjayan, for the Respondent.
The Judgement of the Court was delivered by

383 H
384 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a learned
Single Judge of Madras High Court setting aside the judgment
of acquittal passed by learned Chief Judicial Magistrate cum
Special Judge, Erode, Tamil Nadu. Appellant faced trial
8 alongwith one Rajappan. The appellant faced trial for alleged
commission of offence punishable under Section 7 read with
12,13(2) read with Section 13(1)(d) read with Section 12 of the
Prevention of Corruption Act, 1988 (in short the 'Act'). The trial
court directed acquittal of both the accused persons. The High
C Court upheld the acquittal so far as the co-accused is concerned,
but set aside the judgment of acquittal and directed conviction
for the appellant for charged offences. The minimum sentence
of six months and fine with default stipulation for the offence
punishable under Section 7 of the Act and one year's rigorous
D imprisonment with fine with default stipulation for the offence
under Section 13(2) read with Section 13(1 )(d) of the Act were
awarded.
2. Prosecution version in a nutshell is as follows:
E Subbusingh (Al), the appellant was working as Sub
Inspector of Police at Sathiyamangalain Police Station.
Rajappan (A2), is the friend of Al. There was a land dispute
between Renga Naicker (P. W.4) and Thippa Naicker (P.W.21 ). -r ...,
· Both of them quarreled with each other on 6.7.1991. Nagarajan
F (P.W.5), relative of P.W.4 came to the Sathiyamangalam Police
Station and complained to Al Sub Inspector of Police orally
against P.W.21. Al directed the Police constables P.W.11 and
P.W.12 to go the spot to bring P.W.21. Accordingly, they went to
the scene of occurrence and found that P.W.21 was lying down
G with injuries. The Constables took the injured and others to the
Police Station.
In the meantime, Selvan (P.W.2), brother-in-law of P.W.21
followed them to the Police Station. Since the injured P.W.21
was not taken to the hospital, P.W.2 requested A1 to send him
H to hospital. As, permitted by Al, the injured was taken in an Auto
SUBBUSINGHV. STATE BY PUBLIC PROSECUTOR 385
[DR. ARIJIT PASAYAT, J.]
--<t to a private hospital run by Dr. Thangavel (P.W. 10). After taking A
injection from the hospital, PW 21 and others came back to
Police Station. P. W.2 was asked to come back in the evening.
Accordingly, P.W.2 went to ttie Police Station at 5.00 P. M.
At that time, the Police obtained Muchalika from both the sides
stating that they would settle the matter by approaching the Civil B
Court. Then, Al directed P.W.21 and others to wait outside the
~y
Police Station and act as per the instructions of one A2 who is
the friend of A 1.
_. Within a few minutes, A2 came and informed P.W.2 that Al c
had asked him to get Rs.500/- from them. Natarajan (P.W.22),
son of P. W:21 told that he was having only Rs.1001-. A2 after
getting instruction from Al asked them to give Rs.100/-. P.W.22
told A2 that Rs.100/- was required to buy medicine. Then, A2
told them that he would give Rs.100/- from his pocket arid
handed over the same on behalf of P.W.21 at nearby bangle
·o
shop where P. W.8 was doing business. A2 directed him to bring .
Rs.100/- and another Rs.400/- being the balance to be paid to
Al. Then, they were allowed to go.
On 7.7 1991 Al visited the land. and gave the message E
that both PWs. 2 &4 should meet him in the evening. PW2 met
Al at about 5.00 P.M. in the Police Station. At that time, Al asked
,.,;
~
him whether he had brought the amount and PW2 told him that
' the money was not ~eady. Al told him that already the amount of
.i
' Rs.100/-was received through shop owner and balance amount F
of Rs.400/- should be paid, or otherwise he would put up a case
against P.W.21 on the complaint of PW5 PW 2 told him that he
would bring on 12.7.1991. Then PW2 informed this to PW21:
Since PW2 did not want to give bribe he gave a complaint
Ex.P2 to the Inspector of Police, Vigilance (PW26) on 11.7.1991 G
~-.1 at about 4.30 PM. P.W.2 was asked to come to the Vigilance
Office next day. In the meantime, P.W.26 requested the
assistance from Manokaran (P.W.3) and one Jagadeesan,
working in the Tamil Nadu Electricity Board.
H
386 SUPREME COURT REPORTS [2009] 7 S.C.R.

~.
A Next day morning, the pre-trap mahazar was prepared by
observing required formalities. The test was demonstrated by
applying phenolphthalein powder on the currency notes of
Rs.400/- handed over by PW2. Then all of them went to the
Police Station in the early morning of 12.7. 1991 Since Al was
B not available, they went to his house which is situated in the
police quarters. Then, PWs. 2 & 3 alone were asked to go inside.
P.W.2 gave the balance amount of Rs.400/- to Al, who in turn
-r~
received it by his left hand. Then, he promised that he would
take care of the case against P. W.21. Both P.Ws.2 and 3 came
·C out and gave a signal.
Thereafter, P.W.26 and his men entered into the house. At
'
, that fime, A"1 was having M 0.1 series currency notes in his left
hand. The phenolphthalein test on both the hands was conducted
which proved positive.
b
The further investigation was taken up by, Vivekanandan
(P.W.27), another Inspector of Police. After examining the
witnesses and obtaining sanction, he filed a charge sheet
against both the accused 1 and 2.
E During the trial, the prosecution examined P.Ws. I to 27,
filed Exs. P1 to P.21 and marked M.Os. 1 to 6.
During the questioning' under Section 313 Cr.P.C., Al stated ~
'-.,.---

that he was innocent and the currency notes were planted under '
~
F his chair without his knowledge. A2 stated that a false case was
foisted against both Al and A2 at the instance of one Lawrence
under whom PW 2 was working.
The trial court after considering the evidence on record
acquitted both the accused in respect of the above charges.
G
In the appeal before the High Court the stand of the State T-~
was that.the trial court acquitted the accused overlooking the
material evidence without appreciation of evidence on record
in the proper perspective and the finding recorded are totally
H perverse and against the material and evidence. The accused
SUBBUSINGHV. STATE BY PUBLIC PROSECUTOR 387
.
[DR. ARIJIT PASAYAT, J.)
~·~ persons supported the judgment of the trial court. The A
reasoriings for the acquittal were as follows:
(1) PWs. 7 & 8 the shop owners had turned hostile. In
Ex.P.7 The Credit Account Book; there is no mention that
the second accused had been given the amount of Rs.100/
- and that the said amount had been given to the first B
accused. Since the Muc.halika was entered both parties
in the police Station and the same was signed by them on
-"I
6.7.1991, there was no necessity for the first accused to
ask the bribe amount through the second accused.
c
(2) P.W. 21 alone is the aggrieved person, as, the amount
: . was demanded.from him only for the purpose of not putting,
up a case against him. So, P. W.2 need not have agreed
to pay the bribe amount to Al and he need not lodge a
complaint before the Vigilance without the knowledge of
D
P.W. 21. P.W. 2 must have been instigated by some
unknown person.
(3) Instead of lodging a complaint before Erode Vigilance
Office which has got jurisdiction over the area, P.W. 2 had
chosen to lodge a complaint before Coimbatore Vigilance. E
There is no explanation for this. .
(4) When P.W. 2 entered into the house of Al, he questioned
... ..,. him, "Who are you?" If really, the occurrence had taken
place on 6.7.1991 and 7.7.1991 in which P.W. 2 met Al
and A2 on both these occasions, there was no necessity F
·for Al to put that question. Therefore, the occurrence took
place on 6.7.1991 and 7.7.1991 as spoken to by P.W. 2'
and P. W. 21 to P. W. 23 cannot be true.
(5) No complaint was produced before the trial court to G
show that P.W. 4 to P.W.6 on the one side and P.W. 21 and
-=II'-{
, P.W. 23 on the other side lodged complaint against each
other. Therefore, the evidence of P. W. 2 and P. Ws. 21 to
23 cannot be believed .
.(6) The evidence of P.W. 12, P.W. 13, P.W. 15 and P.W.16 H
388 SUPREME COURT REPORTS [2009] 7 S.C.R.

1 •
A the Constables attached to Sathiyamangalam Police
Station, over the enquiry in regard to the complaint by both
parties in the Police Station, cannot be believed, since
there is no entry in the General Diary, The evidence of
P.W. 14, another Constable also has to be disbelieved,
B since the Muchalika obtained from both parties was not
produced. Moreover, Exs. P.12 and P13, the Trip Sheets
of the Taxi contained the signature of P. W. 27 Vigilance
Inspector and as such they are fabricated documents. f-

(7) The phenolphthalein test was not conducted properly.
c The pre-trap test was not properly explained to the
witnesses P. Ws. 2 and 3. After the trap, the signature of
the first accused had not been obtained on the bottles
,_
M.Os. 5 and 6. This shows that the test could not have
been conducted at the house of Al.
D (8) Al received the money by his left hand. When P.Ws. 2
and 3 entered into the house, Al kept the money in his left
hand only, but the test conducted on both the right and left
hands proved positive. There is no explanation as to how
the test on right hand proved positive.
E
(9) Out of total amount of Rs.500/-, according to the
prosecution, Rs. 100/- was paid by A2 through P. Ws. 7
and 8 who had turned hostile. P. W. 2 admitted that he ....
~
never paid Rs.100/- to A2 to be given to Al. When the
receipt of a portion of the demanded amount of Rs.500/
F - i.e. 100/- had not been proved, the trap incident for the
receipt of the balance amount of bribe could not be
believed.
(10) Since the evidence available on record through P.Ws.
G 2, 3 and 26 would not prove that the accused has
committed the offence under Section 7, presumption under
Section 20 cannot be drawn. """'~
The High Court found that the conclusions are erroneous
and on misreading of the evidence. Accordingly the judgment
H of the trial court was set aside.
SUBBUSINGHV. STATE BY P.UBLIC PROSECUTOR 389
[DR. ARIJIT PASAYAT, J.]

- ~ 4. Learned counsel for the appellant submi.tted that A
considering the limited scope for interference with the judgment
of acquittal the High Court ought not to have interfered in the
matter as the view taken by the trial court was a possible view
and therefore the High Court should not have interfered. The.
following submissions inter alia were made in support of appeal: 8
1. Foundation for the demand has been disbelieved;
_, 2. Demand by A2 was disbelieved and was part of the
prosecution version regarding demand has been disbelieved
so the whole thing should have been discarded. c
5. PW2 should have gone to Erode where there was a
Vigilance Officer. The evidence of PW2 is unreliable and there
is no corroboration to his evidence. It is unnatural that demand
would be made from a person who was injured after settlement
of the dispute. The High Court erroneously held that PW2 called D
~ the witnesses which is not correct PW21 did not make any
complaint though he is supposed to be the affected person.
There is no signature as alleged. It is pointed out that PW2 is
not directly involved, he is brother in law of PW 21.
6. Learned counsel for the respondent State on the other E
hand supported the judgment.
... '>- 7. It needs to be pointed out that the recovery was not
disputed. The accused stated that with obliq'ue purpose he was
trapped. The money was kept in the pocket of the accused. F
8. The case of prosecuti9n with refereni:te to the enquiry
over the incident on 6. 7.1991 is clearly spoken to by P.W. 2,
P.W. 21, P.W. 22, son of PW 2-1 and P.W. 23 another relative.
Thot1gh the other party namely P.Ws. 4 and 5 turned hostile,
they would admit that the incident took place on 6.7.1991 and G
--:Jti that they were called to Police Station by Al, who after enquiry
directed them to settle the dispute and warned them That apart,
P.W.13, P.W.14, P.W.15 and P.W.16 the Constables attached
to the said Police Station, would also specifically state that the
enquiry was conducted on the basis of the oral complaint of H
390 SUPREME COURT REPORTS [2009] 7 S.C.R.

A P.W. 5 against P.W. 21 by Al and Muchalika, was obtained from
them after giving warning on his instruction. Under these
circumstances, there is no reason to reject the evidence of P.W.2,
P.W.13 to P.W.16 and P.W.21 to P.W.23.
9. When these acceptable materials are available through
8 these witnesses, their deposition cannot be rejected merely on
the ground that the complaints given by P. W. 4 and P. W. 21
were not marked and Muchalika obtained from both parties were
not produced. As a matter of fact, Arumugham (PW 25), the
Inspector of Police, Sathiyamangalam under whom A1 Sub-
C Inspector of Police was working specifically stated that the
complaints of PW 4 and PW 21 were not registered in the Police
• Station. This shows that even without receipt of the written ·
complaint and registration of the same, a mock enquiry was
conducted by A 1 and on the pretext of enquiry, a Muchalika was
D obtained from both the parties.
1O. In ~uch a situation, it cannot be contenged that the entire
enquiry was over on 6.7.1991 itself after obtaining Muchalika.
The fact that he went to the field on 7. 7, 1991 at about 11.00
A.M. and directed P.W. 2 to come and meet him in the Police
E Station in the evening itself would_show that the parties were
made to think that he had not finished the enquiry. Only on the
said direction, P.W. 2 went and met A1 in the Police Station on
7.7.1991 evening. In that context, Al demanded money from P.W.
2 and threatened that if he failed to bring the balance amount,
F namely Rs. 400/-, he would initiate action against P.W. 21 on
the complaint given by P.W. 5. Only thereafter P.W, 2 undertook
to pay that amount on Friday at the police station .
11. This is a case where P.W. 21 was attacked by P.Ws. 4
G and 5, as a result of which P.W. 21 sustained injuries and fell
down on the field and became unconscious. Instead of taking
action against the persons concerned, who attacked P.W. 21,
Al detained P.W. 21 from the ,inorning till evening. Though Al
was requested by P.W.21 to send him to the Government
H Hospital, Al did not choose to send him to the Government
SUBBUSINGHV. STATE BY PUBLIC PROSECUTOR 391
[DR. ARIJIT PASAYAT, J.]
-->+ Hospital: on the other hand, he was beaten by Al himself for A
having requested to send him to the Government Hospital. This
shows that Al djd not allow P.W. 2 and P.W. 21 to get the medical
records regarding the injuries sustained by P. W. 21. He was
sent only to Private Doctor P.W. 10. Though P.W. 10 turned
hostile, Ex. P.8 marked through him would show, in the light of B
the evidence of P.W. 2 and P.W. 21, that P.W. 10 gave
prescription to P.W. 21 for the injuries sustained by him.
-)
12. So far as the stand that money was kept for the purpose
of false implicating, the same is without substance. The accused
was a police officer who knew the consequences of the bribe. c
He had not explained as to why he took up the money in his
examination under Section 313 of the Code. The accused
stated that the PW2 took the money because the Inspector
asked him to do so. The normal conduct would have been to
take action against PW2 for offering bribe. Additionally, if matter D
)r
was closed there was no need for going to the field. It is to be
noted that the 'appellant was alone in his room for sometime
holding the currency notes before PW 26 and other officer
entered into the house. Therefore, as rightly observed by the
High Court, the possibility of appellant counting the moneywith E
the help of right hand cannot be ruled out. Once, it is proved by
the prosecution that the money was demanded as bribe and
_. the same was received from PW2, Section 20 of the Act comes
~
into play. Once there is a presumption as contemplated under
' Section 20, it is for the accused to establish that the amount F
was not received as bribe.
13. Since minimum sentence has been imposed there is
no scope for interference with the same.
14. Above being the position there is no merit in this appeal G'
which is dismissed. The appellant shall surrender to custody
forthwith to serve the remainder of sentence, if any.

K.K.T. Appeal dismissed.