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Tuesday, August 13, 2013

Anti corruption case = mere taint of powder to the hands and mere placing of cash under news paper does not proved the guilt of the accused who is not at all a competent authority to pass orders against the complainant =The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable,unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. So far as the recovery is concerned, the respondent-accused took a plea that he only had the duty to serve the notice on the complainant with regard to the tax evasion done by him and was not the authority for making an assessment order. It was his official duty to serve upon the complainant a notice under Section 148 of the Income Tax Act, 1961. The complainant came to his house and asked the respondent-accused to give him a glass of water as he had to take the medicine. He went inside the kitchen and came back with a glass of water and thereafter shook hands with the complainant and that is why when the hands of the respondent were washed, they turned pink. 9. The High Court also accepted the defence version made under Section 313 of Code of Criminal Procedure, 1973 and recorded the findings that the possibility of Phenolphthalein powder appearing on the hands of the respondent-accused when he shook hands with the complainant cannot be ruled out. The High Court further took note of various subsequent developments that certain complaints were filed against him by the CBI having dis-proportionate assets.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40628
REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2052 of 2010


      State of Punjab                                    …Appellant


                                   Versus


      Madan Mohan Lal Verma                   …Respondent










                               J U D G M E N T




      Dr. B.S. CHAUHAN, J.




      1.    This appeal has been preferred against the impugned judgment and
      order dated 3.3.2009 in Criminal Appeal No. 414-SB/1996 passed by  the
      High Court of Punjab and Haryana  at  Chandigarh,  setting  aside  the  judgment and order of the Trial Court dated 28.5.1996  by  which   the respondent stood convicted under the  provisions  of  Sections  7  and 13(1)(d) read with Section 13(2) of the Prevention of Corruption  Act, 1988 (hereinafter referred to as the ‘Act 1988’) and had been  awarded the sentence of one year on each count and a fine  of  Rs.2,500/-  was   imposed, in default of payment of fine, to further undergo RI for  one month.


      2.    Facts and circumstances giving rise to this appeal are that:
      A.    The complainant - Naresh  Kumar  Kapoor  was  contacted  by  the respondent  –  the  Income  Tax  Inspector  who  threatened  him  with  reopening the assessment order, particularly in respect of  the  house  owned and possessed by his wife Smt. Neeru  Kapoor  bearing  No.  456, Model Town, Jalandhar and for purchasing the car which  had  not  been  disclosed  by  the  complainant  in  his  income  tax   return.   
 The complainant and the respondent-accused had been  in  touch  with  each other and the respondent demanded a  sum  of  Rs.25,000/-  as  illegal gratification for not reopening  the said assessment.


      B.    On 1.6.1994,  the  complainant  -  Naresh  Kumar  Kapoor  (PW.7)
      alongwith Raj Kumar Sharma (PW.3) went to  the  house  of  respondent-
      accused i.e. 638, Mota Singh Nagar, Jalandhar  to  negotiate  for  not
      reopening the assessment.
The respondent-accused asked for  a  sum  of
      Rs.25,000/- as illegal gratification and the complainant expressed his
      inability.
On  this, respondent agreed to accept a sum of  Rs.10,000/-
      as part payment of the illegal gratification to be paid  on  the  same
      day,  and  a  further  sum  of  Rs.15,000/-  on  the  next  day.  
The
      complainant made a false promise of paying a sum of  Rs.  10,000/-  on
      the same day i.e. 1.6.1994.
The complainant  approached  Harish  Kumar
      (PW.12), DSP (Vigilance), Jalandhar  and they prepared to lay a trap.


      C.    The  complainant  arranged  the  money  i.e.  20  notes  in  the
      denomination of Rs.500/- each.
Phenolphthalein powder was applied  on
      the notes and the same were given to the complainant.
The  number  of
      those notes were noted separately on a piece of paper.
The complainant
      and the shadow witness Raj Kumar Sharma (PW.3)  washed their hands and
      approached the respondent-accused at his house.
The  complainant  gave
      the money to the respondent-accused.  He  put  it  on  the  table  and
      covered it with a newspaper.
The shadow witness Raj Kumar (PW.3)  gave
      the appointed signal to Harish Kumar Sharma  (PW.12)  DCP,  Gurlebleen
      Singh (PW.2), the  Executive  Magistrate  and  other  members  of  the
      raiding party and  the money was recovered.
Hands of  the  respondent-
      accused were washed in the sodium  carbonate  solution,  which  turned
      pink.
In view thereof, the criminal prosecution started.


      D.    After investigation,  a  charge  sheet  was  filed  against  the
      respondent-accused. The prosecution examined 12 witnesses  in  support
      of its case and the defence also examined 9 witnesses.  On  conclusion
      of the trial, the respondent was convicted and sentenced  as  referred
      to hereinabove.


      E.    Aggrieved, the respondent preferred the criminal  appeal  before
      the High Court which has been allowed vide impugned judgment and order
      dated 3.3.2009.
            Hence, this appeal.


      3.    Shri Ashok Kumar Panda, learned senior counsel appearing for the
      appellant, has submitted that it was  a  fool-proof  case.  The  Trial
      Court gave cogent reasons and there was no justification for the  High
      Court to discard the  case  of  the  prosecution.  All  the  witnesses
      including Gurlebleen Singh  (PW.2),  the  Executive  Magistrate,  have
      fully supported the prosecution’s case. The  Trial  Court  found  that
      there had been a  demand  of  illegal  gratification  and  the  amount
      received by the respondent was duly recovered by  the  raiding  party.
      Thus, all the ingredients to constitute the  offences  for  which  the
      respondent had been prosecuted  had  been  fulfilled.  Therefore,  the
      appeal deserves to be allowed.


      4.     Per  contra,  respondent-in-person  has  submitted   that   the complainant  himself  was  an  industrialist  who  evaded   tax.  
The
      complainant was also running an NGO and was the chairman of  an  Anti-
      Corruption Society. 
The other office bearers of the said  society  had
      also raised a large number  of  complaints  against  the  son  of  the
      respondent-accused. 
The complainant had been threatening him and  even
      attacked him and caused injuries on 14.10.1994  in  respect  of  which
      there had been complaints against him. 
The respondent had also filed a
      large number of cases in criminal courts which  were  settled  by  the
      officers of the CBI out of the court and in  view  thereof  the  cases
      were withdrawn. 
The parameters of interference against  the  order  of
      acquittal as laid down by this Court have to  be  applied.  
Therefore,
      the appeal is liable to be rejected.


      5.    We have considered the rival submissions made by learned counsel
      for the appellant as well as the respondent in-person.


      6.     It  is  a  settled  legal  proposition  that   in   exceptional
      circumstances, the appellate court for compelling reasons  should  not
      hesitate to reverse a judgment of acquittal passed by the court below,
      if the findings so recorded  by  the  court  below  are  found  to  be
      perverse, i.e. if the conclusions arrived at by the  court  below  are
      contrary to the evidence on record; or if the court’s  entire approach
      with respect to dealing with the evidence  is  found  to  be  patently
      illegal, leading to the miscarriage of justice; or if its judgment  is
      unreasonable and is based on an erroneous understanding of the law and
      of the facts of the case. While doing so,  the  appellate  court  must
      bear in mind the presumption of innocence in favour  of  the  accused,
      and  also  that  an  acquittal  by  the  court  below  bolsters   such
      presumption of innocence. (Vide: Abrar v. State of U.P., AIR  2011  SC
      354; Rukia Begum v. State of Karnataka, AIR 2011 SC 1585; and State of
      Madhya Pradesh v. Dal Singh & Ors., AIR 2013 SC 2059).


      7.    The law on the issue is well  settled  that  demand  of  illegal
      gratification is sine qua non for constituting an  offence  under  the Act 1988. 
Mere recovery of tainted money is not sufficient to  convict
      the accused when substantive evidence in the  case  is  not  reliable,unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount  by  the accused is not sufficient to fasten guilt, in the absence  of  any evidence with regard to demand and acceptance of the amount as illegal  gratification. 
Hence, the burden rests on the accused to displace  the
statutory presumption raised under Section 20  of  the  Act  1988,  by bringing on record  evidence,  either  direct  or  circumstantial,  to establish with reasonable probability, that the money was accepted  by him, other than as a motive or reward as referred to in Section  7  of the Act 1988. While invoking the provisions of Section 20 of the  Act, the court is required to  consider  the  explanation  offered  by  the accused,  if  any,  only  on  the  touchstone  of   preponderance   of probability and not on the touchstone of proof beyond  all  reasonable doubt. However, before the accused is called upon to explain  how  the
amount in question was found in his possession, the foundational facts must  be  established  by  the  prosecution.
The  complainant  is  an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of  any  other interested  witness.  In  a  proper  case,  the  court  may  look  for  independent corroboration before convicting the accused person.
      (Vide: Ram Prakash Arora v.  The State of Punjab AIR 1973 SC  498;  T.
      Subramanian v. The State of T.N., AIR 2006 SC 836; State of  Kerala  &
      Anr. v. C.P. Rao, (2011) 6 SCC 450; and Mukut Bihari & Anr.  v.  State
      of Rajasthan, (2012) 11 SCC 642).


      8.    The case is  required  to  be  examined  in  the  light  of  the
      aforesaid settled legal propositions.  
So  far  as  the  recovery  is concerned, the respondent-accused took a plea that  
he  only  had  the  duty to serve the notice on the complainant with  regard  to  the  tax  evasion done by him and was not the authority for making an assessment  order.
 It was his official duty to serve upon the complainant a notice
 under Section 148 of the Income Tax Act, 1961. 
The complainant came to  his house and asked the respondent-accused to  give  him  a  glass  of water as he had to take the medicine. 
He went inside the  kitchen  and came back with a glass of water and thereafter shook  hands  with  the complainant and that is why when the  hands  of  the  respondent  were washed, they turned pink.


      9.    The High Court also accepted  the  defence  version  made  under Section 313 of Code of  Criminal  Procedure,  1973  and  recorded  the findings that the possibility of Phenolphthalein powder  appearing  on the hands of the respondent-accused  when  he  shook  hands  with  the complainant cannot be ruled out. The High Court further took  note  of various  subsequent developments that certain  complaints  were  filed  against  him  by  the  CBI  having   dis-proportionate   assets.  
The complainant  Naresh  Kumar  Kapoor  was  a  man  having   a   criminal background. He was involved in a murder case as well as in a  case  of sale of shares in bogus names.  The High Court further observed  that in case two views are possible, the view favouring the accused has  to be given preference, thus gave the benefit of doubt to the  respondent accused and acquitted him.


      10.   Undoubtedly, the reasoning given by  the  High  Court  does  not
      deserve to be accepted for the reason that even if the complainant had
       a criminal background, he can still be forced by the officer  of  the
      Income Tax Department to pay  illegal gratification for not  reopening
      the assessment of a particular year. The subsequent cases against  the
      respondent-accused for having disproportionate assets  cannot  be  co-
      related with the incident of trap case.  The  incident  in  which  the
      respondent had been arrested for taking illegal gratification  has  to
      be examined on its own merit.  The courts below have not taken note of
      the statement made by Gurlebleen Singh  (PW.2)  who  is  an  Executive
      Magistrate and must be treated to be the most reliable and independent
      person and admittedly, he had been associated with the trap party.
            The case of  the complainant was that on 1.6.1994 he went to the
      house of the respondent-accused and after bargaining, agreed to pay  a
      sum of Rs.10,000/- on the same day as  part  payment  of  the  illegal
      gratification of Rs.25,000/-. He immediately went alongwith Raj  Kumar
      Sharma (PW.3), the shadow witness  to Harish Kumar  (PW.12),  DCP  and
      the plan for trap was prepared and the trap was laid. Gurlebleen Singh
      (PW.2), the Executive Magistrate has categorically stated that he  had
      been directed by the Deputy Commissioner in writing  on  31.5.1994  to
      join the trap party on 1.6.1994. Therefore, it is evident that in case
      the complainant himself had gone to Harish Kumar (PW.12) for having  a
      trap on 1.6.1994, the question  of  receiving  a  direction  from  the
      Deputy Commissioner on 31.5.1994 could  not  arise.  Gurlebleen  Singh
      (PW.2) is a witness only of recovery and not of  accepting  the  bribe
      money. This statement alone made it evident that the  prosecution  has
      not disclosed the genesis of the case correctly.


      11.   In view of the above, we  do  not  find  any  cogent  reason  to
      interfere with the conclusion reached by the High Court. The appeal is
      accordingly dismissed.
                                                         ……..…………..…………J.
                                                      (Dr. B.S. CHAUHAN)




                                                      ………..……………..……J.
                                                      (S.A. BOBDE)
      New Delhi,
      August 12, 2013



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