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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.787 OF 2011

D. VELAYUTHAM APPELLANT

             VS.

STATE REP. BY INSPECTOR OF RESPONDENT  POLICE, SALEM TOWN, CHENNAI

WITH

CRIMINAL APPEAL No.788 of 2011

J U D G M E N T

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; 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 affirming the

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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  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 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. 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 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 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

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of  two  independent  witnesses,  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.O.1  currency  series)  with  phenolphthalein  powder,  before  

returning  them to  PW2,  who  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 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 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  2  to  the  sodium  carbonate  solution  test,  which  tested  

affirmative, both hands of Accused 2 having been dipped in 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.  A mahazar was prepared, the incriminating property

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seized,  and  two  witnesses  signed  the  mahazar.  Accused  1  was  subsequently  

arrested.  

3 Both Accused  were charged with offences under 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 incarceration being 2 years, for the convictions  

secured under Sections 7 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.     

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 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 mala  

fides extended only to being an abettor 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 2’s claim that he was personally uninvolved,

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but  merely  an  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 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 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 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 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  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.

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6 This Court has ratiocinated in significant length and 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 important in this case.  Accomplice  

evidence is addressed by Sections 133 and 114 (b) of the Evidence Act,  which  

though  does  not  make  explicit  use  of  the  word  “accomplice”.   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 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 illegal to act upon the uncorroborated testimony of the  

accomplice the rule of prudence so universally followed has to amount to rule of  

law  that  it  is  unsafe  to  act  on  the  evidence  of  an  accomplice  unless  it  is  

corroborated in material aspects 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

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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 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 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 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, 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 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

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the decision of a Constitution Bench 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  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 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  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 presuppose that a trap/ decoy witness is an  

“interested witness”, with an ulterior or other than ordinary motive for ensuring the  

inculpation and punishment of the accused. 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 against and suspicious of the testimony of trap witnesses. We are of the

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opinion  that  the  law  hitherto  expressed  by  this  Court  upholds  precisely  this  

exposition.  

10 Here, a bald allegation by the defence of PW2’s (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 pursuant to this vexatious, illegal and unchartered demand  

notice did the first meeting take place between the Complainant and 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 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 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  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  been  

mischievously  and  mendaciously  directed  towards  Accused  1,  it  as  open  a

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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 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 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 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 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 that the evidence of PW2 decoy is well corroborated by circumstantial  

evidence.  

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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  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  bribes  to  the  Accused-Officers  for  their  recalling/  

rescinding the demand notice in return.  

14 Though this Court has stressed the need and 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  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 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  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

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Accused 2 so convincingly and inexorably points towards his custodianship of part  

of the same bribe amount on behalf of his superior 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  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  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 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 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 was not present at the time of receipt (in support whereof

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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 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  

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  

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 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 instant case, PW1 has no axe to grind against A-1. It is not  

in dispute that he had to get a patta issued A-1 and he categorically stated that A-1  

had made the demand.A-2 was his assistant and the tainted money was recovered  

from  A-2  while  he  was  just  going  out  of  the  office  of  A-1.  Unless  A-1  has  

demanded the money and has also directed him to hand over the same to A-2, there

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was no reason at all as to why PW1 should hand over the money to A-2. PW1 has  

consistently stated that A-1 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 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  

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  

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 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 his behalf.

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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 hereby cancelled.  Consequently,  it  is  directed that  the 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.      

........................................................J. (DIPAK MISRA)

  ........................................................J.  (VIKRAMAJIT SEN)

NEW DELHI;     

MARCH 10, 2015.