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Prevention of Corruption Act, 1988 - mere recovery of rexine bag is not sufficient when other ingredients of offence not proved - Trial court acquitted the accused - High court reversed - Apex court held that High Court has not noticed the very important lacuna in the prosecution case that as per the evidence of PW-2 and PW-3 Rameshwar Nath, the bribe money which was sought to be given to the accused on 08.07.1989 was in a black rexine bag and not in the brown rexine bag as shown to the witnesses before the trial court by the prosecution. It has further come to our notice that neither the two witnesses nor the C.B.I. officials put any signature or identification mark on the bottles containing solution which is the most crucial evidence in the case to prove the acceptance of the gratification by the appellant from the complainant. As per the statements of PW-2 and C.B.I. officials, the GC notes were not counted. However, it is a matter of serious doubt of acceptance the notes containing in the black rexine bag were touched by the accused.After careful observation of the above-mentioned facts and evidence on record and on careful examination of the aforesaid rival legal contentions urged on behalf of the parties, with reference to the extracted portion of the evidence of PW-2, PW-3 and PW-9, we are of the considered view that the prosecution has failed to prove the demand and acceptance of illegal gratification by the appellant from the complainant PW-2, upon whose evidence much reliance has been placed by the learned counsel for the respondent.=CRIMINAL APPEAL NO.920 of 2011 SATVIR SINGH ….APPELLANT VS. STATE OF DELHI THROUGH CBI. …..RESPONDENT = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41855

  Prevention  of  Corruption  Act,  1988 - mere recovery of rexine bag is not sufficient when other ingredients of offence not proved - Trial court acquitted the accused - High court reversed - Apex court held that High Court has not noticed the very important lacuna in the  prosecution
case that as per the evidence of PW-2 and PW-3  Rameshwar  Nath,  the  bribe money which was sought to be given to the accused on  08.07.1989  was  in  a black rexine bag and not in the brown rexine bag as shown to  the  witnesses before the trial court by the  prosecution.  It  has  further  come  to  our notice that neither the two witnesses  nor  the  C.B.I.  officials  put  any
signature or identification mark on the bottles  containing  solution  which is the most crucial evidence in the case to  prove  the  acceptance  of  the gratification by the appellant from the complainant. As per  the  statements of PW-2 and C.B.I. officials, the GC notes were not counted. However, it  is a matter of serious doubt of acceptance the notes containing  in  the  black rexine bag were touched by the accused.After careful observation of the above-mentioned facts and evidence  on record and on careful examination of the aforesaid rival  legal  contentions
urged on behalf of the parties, with reference to the extracted  portion  of the evidence of PW-2, PW-3 and PW-9, we are of the considered view that  the prosecution has failed  to  prove  the  demand  and  acceptance  of  illegal gratification by  the  appellant  from  the  complainant  PW-2,  upon  whose evidence much reliance has been  placed  by  the  learned  counsel  for  the
respondent.=

Further, as contended by the learned senior counsel for  the  appellant,
the High Court has not noticed the very important lacuna in the  prosecution
case that as per the evidence of PW-2 and PW-3  Rameshwar  Nath,  the  bribe
money which was sought to be given to the accused on  08.07.1989  was  in  a
black rexine bag and not in the brown rexine bag as shown to  the  witnesses
before the trial court by the  prosecution.  It  has  further  come  to  our
notice that neither the two witnesses  nor  the  C.B.I.  officials  put  any
signature or identification mark on the bottles  containing  solution  which
is the most crucial evidence in the case to  prove  the  acceptance  of  the
gratification by the appellant from the complainant. As per  the  statements
of PW-2 and C.B.I. officials, the GC notes were not counted. However, it  is
a matter of serious doubt of acceptance the notes containing  in  the  black
rexine bag were touched by the accused.

     The aforesaid findings and reasons  recorded  by  the  High  Court  are
supported with the statements of law laid down by this Court in C.M.  Girish
Babu (supra) upon  which  the  learned  senior  counsel  on  behalf  of  the
appellant has rightly placed reliance. The relevant paragraph  is  extracted
below:

        “18. In Suraj Mal v. State (Delhi Admn.) this Court  took  the  view
        that mere recovery of tainted money divorced from the  circumstances
        under which it is paid is not sufficient to convict the accused when
        the substantive evidence in the  case  is  not  reliable.  The  mere
        recovery by itself  cannot  prove  the  charge  of  the  prosecution
        against the accused, in the absence of any evidence to prove payment
        of bribe or to show that the accused voluntarily accepted the  money
        knowing it to be bribe.”

39.  After careful observation of the above-mentioned facts and evidence  on
record and on careful examination of the aforesaid rival  legal  contentions
urged on behalf of the parties, with reference to the extracted  portion  of
the evidence of PW-2, PW-3 and PW-9, we are of the considered view that  the
prosecution has failed  to  prove  the  demand  and  acceptance  of  illegal
gratification by  the  appellant  from  the  complainant  PW-2,  upon  whose
evidence much reliance has been  placed  by  the  learned  counsel  for  the
respondent.

40. We, accordingly answer the point No. 2 in favour of the  appellant  that
exercise of  appellate  jurisdiction  by  the  High  Court  to  reverse  the
judgment and order of acquittal is not only erroneous but also suffers  from
error in law and liable to be set aside.

2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41855



                                                               REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.920 of 2011


 SATVIR  SINGH                                   ….APPELLANT

                                     VS.

          STATE OF DELHI THROUGH CBI.                …..RESPONDENT




                               J U D G M E N T




V.GOPALA GOWDA, J.



      This appeal is filed by the appellant  against  the    judgment  dated
07.01.2011 and order on  sentence  dated    08.03.2011  passed  in  Criminal
Appeal No.337 of 1999 by the High Court of Delhi,  whereby  the  High  Court
reversed the order of acquittal  dated  11.03.1999  recorded  by  the  Trial
Court in C.C No. 19 of 1993 and convicted  the  appellant  for  the  offence
punishable under Section  7  of  the  Prevention  of  Corruption  Act,  1988
(hereinafter referred to as ‘the Act’) with rigorous  imprisonment  for  one
year and a fine of Rs.50,000/-, in default of payment of  fine,  to  further
undergo three months simple  imprisonment.  The  appellant  has  prayed  for
allowing the appeal by setting aside  the  impugned  judgment  of  the  High
Court and to acquit him from the charge urging various facts and grounds  in
support of the questions of law framed in this appeal.
2.  For the purpose of considering the rival legal contentions urged by  the
learned counsel for the parties and with a view to  find  out  whether  this
Court is required to interfere with the  impugned  judgment   and  order  of
conviction and sentence of the High  Court, the necessary facts are  briefly
stated hereunder:
       The complainant, Ramesh Suri (PW-2), was running a business of import
and export of buttons, zips, etc.  in  the  name  and  style  of  M/s  Erica
Enterprises. It is alleged that  the  appellant  along  with  his  colleague
P.S.Saini (both Inspector  Customs  (Preventive))  visited  the  office  cum
godown of the complainant (PW2) on 4.07.1989 and that P.S.Saini  demanded  a
bribe of Rs.2 lakhs from the complainant, one lakh each for himself and  the
accused as the articles kept in the godown were  notified  goods  and  since
his firm was not  a  notified  dealer,  the  complainant  has  violated  the
provisions of Customs Act, 1962.
3. Further, on 07.07.1989,  it  is  alleged  by  the  prosecution  that  the
appellant telephonically contacted the  complainant  (PW-2)  and  reiterated
the  demand  as  made  by  P.S.Saini.  During   the   time   of   telephonic
conversation,  the  brother-in-law  of  the  complainant  Ram  Malhotra  was
sitting with him. The complainant said only an amount Rs.60,000/-  could  be
arranged by him  and  the  same  was  delivered  at  the  residence  of  the
appellant on 08.07.1989 at 8.00 a.m. as the  rest of  the  amount  would  be
arranged within 3-4 days and will be paid to the appellant.
4.    It is alleged that on the written complaint lodged in the  CBI  office
and on the directions of the Deputy Superintendent  of  Police  a  raid  was
conducted in the house of the appellant with the  help  of  the  complainant
and a shadow witness (PW-3), the appellant was  arrested  on  8.7.1989.  The
charge sheet was filed by the prosecution under Section 173  Cr.P.C.  before
the court of Special Judge on the basis of which it has framed  the  charges
against the appellant for trial for offences  punishable  under  Sections  7
and 13(2) read with Section 13(1)(d) of the Act.
5.    The Trial Court after evaluating the evidence on record  has  come  to
the conclusion and held that the prosecution had failed to prove  the  guilt
of the accused under Sections 7 and 13(2) read with  Section  13(1)  (d)  of
the Act and recorded the acquittal of the appellant from  the  charges  vide
its judgment and order dated 11.03.1999.
6. The respondent-prosecution, aggrieved by the judgment and  order  of  the
Trial Court has filed an appeal  before  the  High  Court  of  Delhi  urging
various grounds. After hearing the learned  counsel  for  the  parties,  the
High Court vide its judgment and order dated 07.01.2011 reversed  the  order
of acquittal recorded by the Trial Court and  convicted  the  appellant  for
the offence punishable under Section 7 of the Act. The  correctness  of  the
same is challenged in this appeal by the appellant by raising certain  legal
questions and urging grounds in support of the same.
7. It is contended by Mr. Altaf Ahmed, the learned senior counsel  appearing
on behalf of the appellant that P.S. Saini on  all  the  occasions  demanded
the bribe money from the complainant but he was neither arrayed  as  accused
nor examined as witness by the prosecution in the case. Further, he  submits
that recovery memo Exh. PW-2/D is not  proved  because  neither  its  author
Deputy Superintendent  of  Police,  Darshan  Singh  was  available  nor  the
signatures of the other  witnesses  on  the  said  memo  have  been  proved.
Therefore, recovery of money from the appellant alleged to  have  been  paid
to him by the complainant-PW-2 is not  proved  by  the  prosecution.  It  is
urged by him that the further lacuna in the prosecution  case  is  that  Ram
Malhotra, the Brother-in-law of  the  complainant,  who  was  stated  to  be
present at the time of the telephonic demand made by the  accused  with  the
complainant was examined by the prosecution.  The prosecution could  neither
prove the demand and acceptance of the gratification by  the  appellant  nor
were they able to  prove  conscious  possession  of  the  black  rexine  bag
containing the GC notes with him.  Therefore, the alleged recovery of  money
cannot be  stated  to  be  “acceptance”  of  illegal  gratification  by  the
appellant as alleged by the prosecution.
8.    It has been further submitted by the learned senior  counsel  for  the
appellant  that  the  appellate  court  in   exercise   of   its   appellate
jurisdiction has erroneously re-appreciated the  evidence  produced  by  the
prosecution and has set aside the valid finding  of  fact  recorded  by  the
learned trial judge on the charges framed against the appellant.  Therefore,
the finding recorded on this aspect of the matter in the  impugned  judgment
by the  appellate  court  is  not  only  erroneous  on  facts  but  in  law,
therefore, the same is liable to be set aside. Further, it is  contended  by
him that the learned appellate  judge  has  not  noticed  a  very  important
lacuna in the prosecution case that as per the evidence  of  PW-2  and  PW-3
Rameshwar Nath, the bribe money which was sought to be given to the  accused
on 08.07.1989 in a black rexine bag and not in the brown  bag  as  shown  to
the prosecution witnesses by the learned counsel for the prosecution.
9.    He has further  urged  that  the  Appellate  Court  can  exercise  its
jurisdiction  in  exceptional  circumstances  where  there  are   compelling
circumstances and the judgment under appeal is  found  to  be  perverse.  In
support of the aforesaid  legal  submission  he  placed  reliance  upon  the
decision of this Court in the case of Babu v. State  of  Kerala,[1]  wherein
it has been categorically held that:


           “In exceptional cases where there are  compelling  circumstances
           and the judgment under the appeal is found to be  perverse,  the
           appellate court can  interfere  with  order  of  acquittal.  The
           appellate court should bear in mind the presumption of innocence
           of the accused and further  that  the  trial  Court’s  acquittal
           bolsters the presumption of innocence. Interference in a routine
           manner where the other  view  is  possible  should  be  avoided,
           unless there are good reasons for interference” (Para 19).

      The presumption of innocence of the appellant  is further strengthened
by  the  order  of  acquittal  recorded  by  the  trial  judge   on   proper
appreciation of evidence on record.  He had  the  occasion  to  examine  the
demeanor of the prosecution witnesses. The Trial Court  came  to  the  right
conclusion on facts and evidence on record and it has recorded a finding  of
fact holding that the accused is innocent of  the  charges  leveled  against
him and consequently acquitted him from the said charges.    It  is  further
submitted by the learned senior counsel that the Appellate Court could  only
interfere in rare cases where it is found that the  order  of  acquittal  is
erroneous or error in law.   Therefore,  he  submits  that  the  High  Court
should not have interfered with the judgment and order of the  Trial  Court.
The learned senior counsel for the appellant has further placed reliance  on
the following judgments of this Court, namely, 1) State of Kerala & Anr.  v.
C.P. Rao[2], 2) Murugesan & Ors. v. State through Inspector of Police[3]  in
support of his submission that the High Court has  exceeded  its  parameters
laid down by this Court in reversing the judgment and order of acquittal  of
the accused. The relevant paragraphs from the above judgments are  extracted
in the answering portion of the contentious points.
10. The  learned  senior  counsel  further  submits  that  ‘presumption’  of
offence committed by the appellant under  Section  20  of  the  Act  can  be
invoked  against  him  by  the  prosecution,   only   if   the   prosecution
successfully proves the foundational facts.  In the case in hand, since  the
demand, acceptance of bribe money and recovery of the same from him has  not
been proved by the prosecution, the statutory presumption under  Section  20
of the Act against the guilt of the accused does  not  arise  and  therefore
rebuttal of such presumption by the appellant also did  not  arise  in  this
case.
11. The other legal contention urged by the learned senior counsel  is  that
mere recovery of the alleged tainted money without there  being  any  demand
and acceptance by the appellant from the  complainant  does  not  prove  the
guilt of the appellant. In support of his  aforesaid  legal  submission,  he
has placed reliance upon the following decisions of  this  Court:  (1)  K.S.
Panduranga Vs. State of Karnataka[4] (2)Subash Parbat Sonvane Vs.  State  of
Gujarat[5] and (3)Mukut Bihari & Anr. Vs. State of Rajasthan[6].
       In Mukut Bihari & Anr., this Court has held thus:
          “11. The law on the issue is well settled that demand  of  illegal
          gratification is sine qua non for constituting  an  offence  under
          the 1988 Act. Mere recovery of tainted money is not sufficient  to
          convict the accused, when the 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  bribe.  
Mere
          receipt of amount by the accused is not sufficient to  fasten  the
          guilt,  in  the  absence  of  any     
evidence with regard to demand and acceptance  of  the  amount  as
          illegal gratification, but the burden  rests  on  the  accused  to
          displace the statutory presumption raised under Section 20 of  the
          1988 Act,  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  1988  Act.  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 as  to  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 and in a proper case  the  court  may
          look for  [pic]independent  corroboration  before  convicting  the
          accused person.”


12.  The learned senior counsel for  the  appellant  has  further  contended
that mere recovery by itself cannot prove the  charge  against  the  accused
and placed reliance upon the decision of this Court in C.M. Girish Babu  Vs.
CBI, Cochin, High Court of Kerala[7]. The relevant  paragraph  is  extracted
in the reasoning portion.


13. In view of the aforesaid legal contentions urged by the  learned  senior
counsel he has prayed this Court to set  aside  the  impugned  judgment  and
order of the High Court and restore the trial court judgment  and  order  by
allowing this appeal.

14. On the other hand, the learned counsel  for  the  respondent  Dr.  Ashok
Dhamija has strongly relied upon the version of PW-3, who is an  independent
witness and sought to justify the impugned judgment and order  as  the  High
Court has rightly reversed the judgment and  order of  acquittal  passed  by
the Trial  Court.  It  has  been  urged  by  the  learned  counsel  for  the
respondent that even though the complainant-PW2 has turned  hostile  in  the
case he has admitted his version in the cross-examination  and  corroborated
the evidence of PW-3.

15. Further, the learned counsel for the respondent has contended  that  the
complainant,  PW-2  called  PW-3  inside  the  residence  of   the   accused
introducing him as his uncle. When PW-3 went inside, the appellant  enquired
with the complainant if he  had  brought  the  money.      PW-2,  thereafter
asked if there was anything to worry about and whether  his  work  would  be
done.   PW-2  handed  over  the  handbag  containing   the   notes   towards
gratification to the accused who touched the notes with his right  hand  and
placed the hand bag containing the money on the cot made up of steel.  Thus,
the demand and  acceptance  of  gratification  by  the  appellant  from  the
complainant is duly proved by the witness-PW3.
16. Further, he has contended that the testimony of PW-3 is corroborated  by
the testimony of PW-4 R.S.Manku, the Deputy  Superintendent  of  Police  who
had conducted the trap and also  PW-8  A.S.Chhabra,  the  Senior  Scientific
Officer who gave the  report  that  the  right–hand  wash  solution  of  the
appellant gave positive test for Phenolphthelin and sodium.  Therefore,  the
fact that the money was demanded and given  to  the  appellant  for  illegal
gratification, which fact is  further  corroborated  by  another  fact  that
money was withdrawn from the bank account of PW-2 who  has  clearly  deposed
about it before the court in his evidence.
17. The High Court has concluded on the  material  evidence  on  record  and
held that the  reasons  of  the  Trial  Court  on  the  charge  against  the
appellant is erroneous; stating  that,  at  the  time  of  demand,  normally
nobody  else,  except  the  complainant-PW2  would  be  present.  Therefore,
rejecting his testimony by the Trial Court for want of corroboration of  his
evidence by recording the findings of  fact  by  him  stating  that  it  was
unsafe to rely on the sole testimony of  the  complainant-PW-2,  to  convict
the appellant would be contrary to the settled  principles  of  appreciation
of evidence on record.
18. Further, the findings of the trial court that there was  no  motive  for
the appellant to demand the gratification from  the  complainant  as  Sudan,
the Custom (Supdt.) had satisfied himself that  the  complainant  had  valid
documents in support of his claim and that he was not a notified  dealer  is
also perverse as the complainant, PW-2 in his testimony has  clearly  stated
that the money was given to the appellant so that  no  harassment  would  be
caused to him in his business in future.
19. It has been further held by the High Court  that  the  Trial  Court  has
also failed to apply the settled legal principles of law laid down  by  this
Court. The Trial Court has  erred  in  not  accepting  the  testimony  of  a
hostile witness-PW2, his evidence cannot be treated  as  effaced  or  washed
off  the  record  altogether;  part  of  his  evidence  which  is  otherwise
acceptable could have been acted upon at the time of recording his  findings
on the charges.
20. Further, it is urged by him that it has been further held  by  the  High
Court that since the illegal gratification is  large,  the  same  could  not
have been accepted by the appellant as cash-in-hand and the same was  handed
over to him  by  keeping  in  bags,  suitcases,  etc…  which  can  never  be
recovered from the person of an accused.
21. The High Court further held that  once  demand  and  acceptance  by  the
accused has been proved then the statutory presumption under Section  20  of
the Act arises against him and the onus of proof shifts on him to rebut  the
presumption by adducing acceptable evidence to prove that he is  not  guilty
of offence. In support of the aforesaid contention,  the  decision  of  this
Court in the case of  M. Narsinga Rao v. State  of  Andhra  Pradesh,[8]  was
relied upon wherein it was held thus:
           “13. Before proceeding  further,  we  may  point  out  that  the
           expressions “may presume” and “shall  presume”  are  defined  in
           Section 4 of the Evidence Act. The  presumptions  falling  under
           the  former  category  are  compendiously  known   as   “factual
           presumptions” or “discretionary presumptions” and those  falling
           under  the  latter  as  “legal  presumptions”   or   “compulsory
           [pic]presumptions”. When the expression “shall be  presumed”  is
           employed in Section 20(1) of the  Act  it  must  have  the  same
           import of compulsion.


           14. When the sub-section deals with legal presumption it  is  to
           be understood as in terrorem i.e. in tone of a command  that  it
           has to be presumed that the accused accepted  the  gratification
           as a motive or reward for doing or forbearing to do any official
           act etc., if the condition envisaged in the former part  of  the
           section is satisfied. The only  condition  for  drawing  such  a
           legal presumption under Section  20  is  that  during  trial  it
           should be proved that the accused  has  accepted  or  agreed  to
           accept any gratification. The section does not say that the said
           condition should be satisfied through direct evidence. Its  only
           requirement is that it must  be  proved  that  the  accused  has
           accepted or agreed to accept gratification. Direct  evidence  is
           one of the modes through which a fact can be proved. But that is
           not the only mode envisaged in the Evidence Act.


           15. The word “proof” need be understood in the sense in which it
           is defined in the Evidence Act because proof  depends  upon  the
           admissibility of evidence. A fact is said  to  be  proved  when,
           after considering  the  matters  before  it,  the  court  either
           believes it to exist, or considers  its  existence  so  probable
           that a  prudent  man  ought,  under  the  circumstances  of  the
           particular case, to act upon the  supposition  that  it  exists.
           This is the definition  given  for  the  word  “proved”  in  the
           Evidence Act. What is required is production of  such  materials
           on which the court can reasonably act to reach  the  supposition
           that a fact exists. Proof of the fact depends upon the degree of
           probability of its having existed.  The  standard  required  for
           reaching the supposition is that of a prudent man acting in  any
           important  matter  concerning  him.  Fletcher  Moulton  L.J.  in
           Hawkins v. Powells Tillery Steam Coal  Co.  Ltd.  observed  like
           this:
              “Proof  does   not   mean   proof   to   rigid   mathematical
           demonstration, because that is impossible;  it  must  mean  such
           evidence  as  would  induce  a  reasonable  man  to  come  to  a
           particular conclusion.”


           16. The said observation has stood the test of time and can  now
           be followed as the standard of proof. In reaching the conclusion
           the court can use the process of inferences  to  be  drawn  from
           facts  produced  or  proved.  Such  inferences   are   akin   to
           presumptions in law. Law gives absolute discretion to the  court
           to presume the existence of any fact which it thinks  likely  to
           have happened. In that process the  court  may  have  regard  to
           common course  of  natural  events,  human  conduct,  public  or
           private business vis-à-vis the facts of the particular case. The
           discretion is clearly envisaged in Section 114 of  the  Evidence
           Act.


           17. Presumption is an inference of a  certain  fact  drawn  from
           other proved facts. While inferring the existence of a fact from
           another, the court is only applying  a  process  of  intelligent
           reasoning which the mind of a prudent man would do under similar
           circumstances. Presumption is not the  final  conclusion  to  be
           drawn from other facts. But it could as  well  be  final  if  it
           [pic]remains undisturbed later. Presumption in law  of  evidence
           is a rule indicating the stage of shifting the burden of  proof.
           From a certain fact or facts the court can draw an inference and
           that would remain until such inference is  either  disproved  or
           dispelled.


           18. For the purpose of reaching one  conclusion  the  court  can
           rely  on  a  factual  presumption.  Unless  the  presumption  is
           disproved or dispelled or rebutted,  the  court  can  treat  the
           presumption as tantamounting to proof. However, as a caution  of
           prudence we have to observe that it may be unsafe  to  use  that
           presumption to draw yet another discretionary presumption unless
           there is a statutory compulsion. This Court has indicated so  in
           Suresh  Budharmal  Kalani  v.   State   of   Maharashtra.     “A
           presumption can be drawn only from facts — and  not  from  other
           presumptions — by a process of probable and logical reasoning.”

22.   The High Court further  held  that  in  view  of  the  presumption  as
envisaged under Section 20 of the Act, it was the duty  of  the  accused  to
have rebutted the same by producing cogent evidence on record.  The  accused
has failed to discharge that onus. No doubt as held in the  case  of  Subash
Parbat (supra); “The Statutory presumption cannot be raised for  an  offence
u/s 13(1) (d) of the Act.” However, for an offence under section  7  of  the
Act this presumption would arise.
23. On the basis of the aforesaid rival legal contentions  urged  on  behalf
of the parties, the following points would arise for consideration  of  this
Court.
          1) Whether the demand, acceptance and  recovery  of  gratification
          are proved by the  prosecution  and  whether  the  presumption  of
          offence alleged to have been  committed  by  the  appellant  would
          arise in this case?


          2) Whether the findings and reasons recorded on the charges by the
          High Court in reversing the findings of acquittal recorded by  the
          Trial Court are based on proper re-appreciation of legal  evidence
          on record and within the legal parameters laid down by this  Court
          in its decisions?


          3) What order?
24.   The point Nos. 1 and 2 are inter-related and therefore, the  same  are
answered together by assigning the following reasons:
      The learned senior counsel on behalf  of  the  appellant  has  rightly
placed reliance upon the evidence elicited in the cross examination of  PW-2
by the prosecutor. The relevant portion from translation  of  deposition  of
PW-2 made by appellant is extracted hereunder:
           “One P.S.Saini from the customs department asked me to pay Rs.  2
           lakhs and at that time the  appellant/accused  Satvir  Singh  was
           checking the goods in the godown. On the same day, at about  4.00
           p.m. they took me to Customs House at C.R. Building, and produced
           me before Shri Sudan, Custom  (Suptd.)  who  checked  my  papers.
           Thereafter, I was advised to  keep  cordial  relations  with  his
           subordinates. Thereafter, when I came out of the  office  of  the
           superintendent, the accused Satvir Singh was standing outside the
           office with P.S. Saini  who  again  demanded  money  from  me.  I
           refused to pay the  same.   On  7th  July,  1989,  I  received  a
           telephone call from the accused Satvir Singh.   At about 5-6 p.m.
           the accused told me  over  the  telephone,  either  to  make  the
           payment or otherwise they would seize the goods from my premises.
            The accused further asked me to make the payment at Gagan  Vihar
           residence. The accused asked  me  to  pay  Rs.60,000/-  first  on
           8.7.1989 at 8.00 a.m. as I could not arrange the  entire  amount.
           The accused further asked to make the payment  of  the  remaining
           balance amount within three-four days.  My brother in  law,  Shri
           Ram Malhotra was sitting with me at the time  of  the  telephonic
           conversation.”

25. During the cross-examination of PW-2, he has stated that the  demand  of
Rs.2 lakhs was made by P.S. Saini on 4.7.1989 at his  godown  between  11.30
to 12.30 p.m.  On the very same day, he  was  taken  to  office  of  Customs
department where Saini demanded the money at two places  i.e.  firstly  just
outside the office of Superintendent and secondly, at the staircase  of  the
office building and on both the occasions, the accused had not demanded  the
money from the complainant, PW-2 at any time. It has been further stated  by
him during his cross-examination that on both  the  occasions,  the  accused
was at a distance of three-four feet.  It has been  further  stated  by  him
that he did not have any direct talk with the accused  either  at  the  C.R.
Building or at his godown.  He has  further  stated  that  he  had  met  the
accused only once, so he had  neither  conversant  with  the  voice  of  the
accused nor knows his style of talking.
26.  It has been further stated by PW-2 in his evidence that,  when  he  had
gone to the house of the accused along with the punch  witness,  during  the
entire conversation, there was no talk about the contents of the rexine  bag
which he was carrying and neither did the accused enquire  about  the  money
nor received the same from the complainant.
27. Further, the learned  senior  counsel  for  the  appellant  has  rightly
placed reliance upon the  questions  put  to  the  appellant  by  the  Court
seeking the explanation from him under Section 313, CrPC which reads thus:
           “Question:  It is further in evidence against you that while you
      were checking the goods on the  same  day,  Mr.  P.S.  Saini  of  the
      Customs  Department  demanded  a  bribe  of  Rs.  2  lakhs  from  the
      complainant, one lakh each for himself and the accused failing  which
      he threatened the seizure of the said goods.  What have you to say?


           Ans:  It is incorrect.  No Customs officer demanded any money in
      my presence.”

A reading of the question framed by the  learned  trial  Judge  for  seeking
explanation from the appellant, would certainly go to show that he  has  not
demanded illegal gratification from the complainant.
28. The learned senior counsel  on  behalf  of  the  appellant  has  further
rightly placed reliance upon the letter written by PW-2 Exh.  PW-1/DA  dated
15.11.1989 to the Collector of Customs, which reads thus:
           “In this connection, it is submitted  that  as  written  earlier
           Shri Satvir Singh, Inspector has never  demanded  any  money  on
           4.7.1989 when they visited my premises. As far as  telephone  of
           7.7.1989 is concerned, someone telephoned  me  in  the  name  of
           Satvir Singh, but I could not recognize his voice as I have  met
           Satvir Singh only once and that on 4.7.1989.   However,  when  I
           visited his house on 8.7.1989, Satvir Singh did not  demand  any
           money nor accepted the same.    This  is  for  your  information
           please.”

In this regard, the relevant portion of the evidence of Shri AGL  Kaul,  PW-
9, Inspector, CBI, is extracted hereunder:
            “During the course of investigation conducted by him,  he  came
           across  the  letter  Exh.  PW-1/DAwhich  was  already   in   the
           investigation file.  He  further  stated  that  he  cannot  tell
           whether  or  not  this  letter  was  referred  by  the   Customs
           Department to the CBI for verification because  the  letter  was
           neither received nor seized by him.  He recorded the  statements
           of Chamanlal Marwaha and Shri Sharwan Kumar Marwaha  during  the
           investigation and after recording their statements under Section
           161 Cr.P.C.,   the said witnesses stated that they were told  by
           the complainant that he has got the accused  falsely  implicated
           in this case.  After consulting the crime file,  witnesses  have
           stated  that  it  is  correct  that  initially  this  case   was
           recommended for being sent for departmental action and  not  for
           criminal  prosecution.  This  recommendation  was   made   after
           obtaining legal opinion.”
                                                         (emphasis supplied)

29. It is clear from the contents of the aforesaid documentary  evidence  on
record upon which appellant has rightly placed strong reliance  that  he  is
innocent is evident from the version of the investigating officer PW-9,  who
had examined those witnesses at the time of the investigation of  the  case.
They have stated that initially this case was  recommended  for  being  sent
for departmental  action  and  not  for  criminal  prosecution  against  the
appellant. The said evidence would clearly go to show that there is no  case
of illegal gratification either demanded by  him  or  paid  to  him  by  the
complainant PW-2. This important aspect of the matter has  been  over-looked
by the High Court at the time of exercising its appellate  jurisdiction  for
setting aside the order of acquittal passed in favour of the  appellant.  In
fact, the Trial Court on proper appreciation of both  oral  and  documentary
evidence  particularly  the  contents  of  the  said  letter-Ex.PW-1/DA   as
admitted by PW-9 was considered by him and come to the right  conclusion  to
hold that the appellant is not guilty of the offence and rightly passed  the
order of acquittal which has been erroneously reversed by the High Court  as
the same is contrary to the laws laid  down  by  this  Court  in  the  cases
referred to supra which relevant paragraphs are  extracted  while  adverting
to the submissions of the learned senior counsel for the appellant.
      Therefore, this Court has to hold that the High Court has exceeded its
jurisdiction by not adhering to the  legal  principles  laid  down  by  this
Court in reversing the judgment and order of the Trial Court in exercise  of
its appellate jurisdiction.
30. Further, the learned senior counsel for the appellant  has  relied  upon
the statement of PW-3 who in his testimony has stated thus:
           “He along with the complainant left the CBI office at 7.35  a.m.
           and reached the residence of  the  accused  at  8.00  a.m.   The
           government  vehicle  was  parked  at  a  distance  and  he   was
           instructed to remain sitting in the car of the complainant while
           the complainant would go to the  residence  of  the  accused  in
           order to find out if the accused  is  available  or  not.    The
           other members of the raiding party took their positions here and
           there at a distance. The complainant came back after an hour and
           asked him to accompany him.   They both entered the residence of
           the accused.  The complainant was carrying  the  bag  containing
           the money.”
                [Extracted from the translation made by the appellant]


      It is also an undisputed fact that neither Inspector  P.S.  Saini  was
arrayed  as  a  witness  nor  accused  by  the  Investigating  Officer.  Ram
Malhotra, the brother-in-law of the complainant-PW2 who  was  stated  to  be
present at the time of the telephonic conversation with  him  was  also  not
examined during the investigation to prove the fact that the  appellant  had
telephonic conversation with  him.
31. The learned counsel for the prosecution has also relied  upon  the  case
of C.K. Damodaran Nair Vs. Government of India[9] in support of  presumption
of offence alleged against the appellant which reads thus:
           “Where, in any trial of an offence punishable under Section 7 or
           Section 11 or clause (a) or clause (b)  of  sub-section  (1)  of
           Section 13 it is proved that an accused person has  accepted  or
           obtained or has agreed to accept  or  attempted  to  obtain  for
           himself, or for any other person, any gratification (other  than
           legal remuneration) or any valuable thing from  any  person,  it
           shall be presumed,  unless  the  contrary  is  proved,  that  he
           accepted or obtained or agreed to accept or attempted to  obtain
           that gratification or that valuable thing, as the case  may  be,
           as a motive or reward such as is mentioned in Section 7  or,  as
           the case may be,  without  consideration  or  for  consideration
           which he knows to be inadequate.”

32. This Court, in K.S. Panduranga’s case (supra) has held that  the  demand
and acceptance of the amount of illegal gratification by  he  accused  is  a
condition precedent to constitute an  offence,  the  relevant  paragraph  in
this regard from the above-said decision is extracted hereunder:

           “39. Keeping in view that  the  demand  and  acceptance  of  the
           amount as illegal gratification is  a  condition  precedent  for
           constituting an offence under the Act, it is to  be  noted  that
           there is a statutory presumption under Section  20  of  the  Act
           which can be dislodged by the accused by bringing on record some
           evidence,  either  direct  or  circumstantial,  that  money  was
           accepted other than for the motive or the reward  as  stipulated
           under Section 7  of  the  Act.  [pic]When  some  explanation  is
           offered, the court is obliged to consider the explanation  under
           Section 20 of the Act and the consideration of  the  explanation
           has to be on the touchstone of preponderance of probability.  It
           is not to be proven beyond all reasonable doubt. In the case  at
           hand, we are disposed to think that the explanation  offered  by
           the accused does not deserve any acceptance and, accordingly, we
           find that the finding recorded on  that  score  by  the  learned
           trial Judge and the stamp of approval given to the same  by  the
           High Court cannot be faulted.”
                                                         (emphasis supplied)

33.  The learned senior counsel for the appellant has also  placed  reliance
upon the case of Banarsi Das referred to supra wherein it was held that:
           “24. In M.K. Harshan v. State of Kerala this Court  in  somewhat
           similar circumstances, where the tainted money was kept  in  the
           drawer of the accused who denied the same and said that  it  was
           put in the drawer without his knowledge, held as under:
           “8. … It is in this context the courts have cautioned that as  a
           rule of prudence, some corroboration is necessary. In  all  such
           type of cases of bribery, two aspects  are  important.  Firstly,
           there  must  be  a  demand  and  [pic]secondly,  there  must  be
           acceptance in the  sense  that  the  accused  has  obtained  the
           illegal gratification. Mere demand by itself is  not  sufficient
           to establish the offence. Therefore, the other  aspect,  namely,
           acceptance is very important  and  when  the  accused  has  come
           forward with a plea that the currency  notes  were  put  in  the
           drawer without his  knowledge,  then  there  must  be  clinching
           evidence to show that it was with  the  tacit  approval  of  the
           accused that the money had been put in the drawer as an  illegal
           gratification.”


The above-said paragraph from the above mentioned  case  would  go  to  show
that the divergent findings recorded by the High  Court  on  the  factum  of
demand and acceptance of illegal  gratification  by  the  appellant  is  not
proved in this case. In the said case this Court in  unequivocal  terms  has
held that mere demand by itself is not sufficient to establish  the  offence
under the Act. The other aspect, namely acceptance is also  very  important.
There must be clinching evidence with the  tacit  approval  of  the  accused
that money was put by PW-2 on  the  steel  cot  as  stated  by  him  in  his
evidence as illegal gratification. In the case in hand, as per the  evidence
of PW-2 and PW-3, the illegal gratification was in a black rexine  bag  with
a broken zip which was put on a steel cot. As the contents of the  bag  were
not within the knowledge of the accused, therefore, the relevant  aspect  of
the case that the  appellant  has  accepted  the  illegal  gratification  as
required under Section 7 of the Act is not  proved  by  the  prosecution  by
adducing cogent evidence in this regard.
34. We have examined the evidences on record as a whole, the  said  evidence
is read along with documentary evidence  of  Exh.PW-1/DA,  the  contents  of
which are extracted above. The said document is written by PW-2 in the  year
1989, therefore, reliance  should  be  placed  on  the  said  evidence.  The
explanation which is sought  to  be  elicited  from  the  appellant  by  the
prosecution  to  discard  the  said  positive  evidence  in  favour  of  the
appellant  would  further  support  his  plea  that  he  has  not   demanded
gratification from the complainant, PW-2. We are not at all  impressed  with
the plea of the prosecution that the said letter was written by  PW-2  under
pressure as stated by him in his cross examination in the year 1993.  If  it
is true that the letter was written by PW-2 under pressure, then  he  should
have lodged the complaint in this regard with the jurisdictional  police  or
to the higher officers at that relevant point of time or to the Trial  Court
when the case was pending.  Therefore, the said portion of the  evidence  of
PW-2 cannot be accepted by us  as  the  same  is  untrustworthy.  The  black
rexine bag containing the illegal gratification which was kept on the  steel
cot at the residence of the accused on 08.07.1989  was  not  recovered  from
the person of the accused. Therefore, neither  acceptance  nor  recovery  of
illegal gratification from the appellant is proved.  Further,  the  reliance
placed upon the relevant paragraphs extracted above from  the  judgments  of
this Court by the learned senior counsel on behalf of the appellant  applies
aptly to the factual  situation.   Therefore,  the  demand,  acceptance  and
recovery of the illegal gratification alleged  to  have  been  paid  to  the
appellant is not proved by  the  prosecution.   Thus,  the  Trial  Court  on
overall appreciation of the oral and  documentary  evidence  on  record  has
come to the right conclusion and recorded its  findings  of  fact  and  held
that  the  demand,  acceptance  and  recovery  of  gratification  from   the
appellant is not proved, therefore there is no presumption under Section  20
of the Act. The learned trial judge in his judgment has  rightly  held  that
presumption of innocence is in favour of the appellant and he was  acquitted
on merits.
35.  The  evidence  of  PW-3,  who  is  an  independent  witness,  who   had
participated in the proceedings of the raid at the  appellant’s  house,  the
relevant portion of his deposition  before  the  Trial  Court  is  extracted
hereunder:
            “The complainant went to the residence of the accused  while  I
           remained sitting in the car….Thereafter I along with the accused
           went inside the house of the accused………The accused Satbir  Singh
           inquired from the complainant if he had brought the  money.   He
           further enquired about me.  Complainant  introduced  me  as  his
           uncle.  The complainant told the accused that there was  nothing
           to worry and that his work would be done……The accused  took  the
           money.  The complainant handed over the hand-bag containing  the
           GC notes to the accused.   The accused touched ten toes with his
           right hand and placed that hand bag containing the money on  the
           cot made of  steel…….The  complainant  told  that  the  bag  was
           containing Rs. 60,000/-.




36. The prosecution has placed reliance upon  the  judgment  of  this  Court
viz. State  of  Madras  v.  A  Vaidhyanatha  Iyer[10]   in  support  of  the
prosecution to justify the findings and reasons recorded by the  High  Court
on the charges leveled against the appellant, to reverse the  acquittal  and
to convict and sentence him for the offence, the relevant portion  from  the
above referred case reads thus:
        “13. ….Where it is proved that a gratification  has  been  accepted,
        then the presumption shall at  once  arise  under  the  section.  It
        introduces an exception to the general rule  as  to  the  burden  of
        proof in criminal cases and shifts the onus on to  the  accused.  It
        may here be mentioned that the legislature has  chosen  to  use  the
        words  “shall  presume”  and  not  “may  presume”,  the   former   a
        presumption of law and latter of fact. Both these phrases have  been
        defined in the Indian Evidence Act, no doubt for the purpose of that
        Act, but Section 4 of the Prevention of Corruption Act  is  in  pari
        materia with the Evidence Act because it deals with a branch of  law
        of evidence e.g. presumptions, and therefore should  have  the  same
        meaning. “Shall presume” has been defined in  the  Evidence  Act  as
        follows:
           Whenever it is directed by this Act that the court shall  presume
        a fact, it shall regard such fact as proved unless and until  it  is
        disproved.
            It is a presumption of law and therefore it is obligatory on the
        court to raise this presumption in every case brought under  Section
        4 of the Prevention of Corruption Act because  unlike  the  case  of
        presumption of fact, presumptions of  law  constitute  a  branch  of
        jurisprudence. While giving the finding  quoted  above  the  learned
        Judge seems to have disregarded the special rule of burden of  proof
        under Section 4 and therefore his approach in this case has been  on
        erroneous lines.”

   It is rightly contended by the learned senior counsel on  behalf  of  the
appellant that the presumption of the guilt is not proved  in  the  case  on
hand as  the  prosecution  has  failed  to  prove  the  ingredients  of  the
provision of Section 7 of the Act, viz. demand  and  acceptance  of  illegal
gratification by the appellant to constitute  an  offence  alleged  to  have
committed by  him.  Therefore,  the  reliance  placed  on  the  evidence  of
prosecution witnesses  i.e.  PW-2,  PW-3  and  others  by  the  respondent’s
counsel, the relevant  portion  of  which  is  extracted  in  the  aforesaid
portion of the judgment, does  not  amount  to  presumption  of  offence  as
provided under Section 20 of the Act.  Therefore, the question  of  onus  of
proof to disprove the presumption did not arise at all on the  part  of  the
appellant.
37. The High Court in exercise of its appellate  jurisdiction  has  exceeded
its parameters laid down by this Court in reversing the acquittal  order  of
the trial court.  Therefore, the findings are not only erroneous in law  but
also vitiated in law.  The relevant paragraphs from the  judgment  in  State
of Kerala v. C.P.Rao (supra) are extracted hereunder:
       “13. In coming to this conclusion, we  are  reminded  of  the  well-
       settled principle that when the Court has to exercise its discretion
       in an appeal arising against an order of acquittal, the  Court  must
       remember that the innocence of the accused is further re-established
       by the judgment of acquittal rendered by  the  High  Court.  Against
       such decision of the High Court, the scope of interference  by  this
       Court in an order of acquittal has been very succinctly laid down by
       a three-Judge Bench of this  Court  in  Sanwat  Singh  v.  State  of
       Rajasthan. At SCR p. 129, Subba Rao, J. (as His Lordship  then  was)
       culled out the principles as follows:
              “9. The foregoing discussion yields  the  following  results:
           (1) an appellate court has full power  to  review  the  evidence
           upon which the order of acquittal is founded; (2) the principles
           laid down in Sheo Swarup case, afford a correct  guide  for  the
           appellate court’s approach to a case in  disposing  of  such  an
           appeal; and (3) the different phraseology used in the  judgments
           of  this  Court,  such  as,  (i)  ‘substantial  and   compelling
           reasons’, (ii) ‘good and sufficiently cogent reasons’, and (iii)
           ‘strong reasons’, are not  intended  to  curtail  the  undoubted
           power of an appellate court in an appeal  against  acquittal  to
           review the entire evidence and to come to  its  own  conclusion;
           but in doing so it should not  only  consider  every  matter  on
           record having a bearing on the questions of fact and the reasons
           given by the court below in support of its order of acquittal in
           its arriving at a conclusion on those  facts,  but  should  also
           express those reasons in its judgment, which  lead  it  to  hold
           that the acquittal was not justified.”



      Further, in the case of Murugesan,(supra) it is held as under:

      19. An early but exhaustive consideration of the law in this regard is
      to be found in the decision of Sheo Swarup v. King Emperor wherein  it
      was held that the power of the High Court extends to a review  of  the
      entire evidence on the basis of which the order of acquittal had  been
      passed by the trial  court  and  thereafter  to  reach  the  necessary
      conclusion as  to  whether  order  of  acquittal  is  required  to  be
      maintained or not. In the opinion of the Privy Council  no  limitation
      on the exercise of power of the High Court in  this  regard  has  been
      imposed by the Code though certain principles are required to be  kept
      in mind by the High Court while exercising jurisdiction in  an  appeal
      against an order of acquittal. The following  two  passages  from  the
      report in Sheo Swarup adequately sum up the situation:
           “There is,  in  their  opinion,  no  foundation  for  the  view,
           apparently supported by the judgments of some courts  in  India,
           that the High Court has no power or jurisdiction to  reverse  an
           order of acquittal on a matter of fact, except in cases in which
           the lower court has ‘obstinately  blundered’,  or  has  ‘through
           incompetence, stupidity or perversity’ reached  such  ‘distorted
           conclusions as to produce a positive miscarriage of justice,’ or
           has in some other way  so  conducted  itself  as  to  produce  a
           glaring miscarriage of justice,  or  has  been  tricked  by  the
           defence so as to produce a similar result.
                                (emphasis supplied)


           Sections 417, 418 and 423 of the Code give  to  the  High  Court
           full power to review at large the evidence upon which the  order
           of acquittal was founded, and to reach the conclusion that  upon
           that evidence the order of  acquittal  should  be  reversed.  No
           limitation should be placed upon that power, unless it be  found
           expressly stated in  the  Code.  But  in  exercising  the  power
           conferred by the Code and before reaching its  conclusions  upon
           fact, the High Court should and will always give  proper  weight
           and consideration to such matters as (1) the views of the  trial
           judge  as  to  the  credibility  of  the  witnesses;   (2)   the
           presumption of innocence in favour of the accused, a presumption
           certainly not weakened by the fact that he has been acquitted at
           his trial; (3) the right of the accused to the  benefit  of  any
           doubt; and (4) the slowness of an appellate court in  disturbing
           a finding of fact arrived at by a Judge who had the advantage of
           seeing the witnesses. To state this, however,  is  only  to  say
           that the High Court in its conduct of the appeal should and will
           act in accordance with  rules  and  principles  well  known  and
           recognised in the administration of justice.”


      20. The principles of law laid down  by  the  Privy  Council  in  Sheo
      Swarup have been consistently followed by this Court in  a  series  of
      subsequent pronouncements of which  reference  may  be  illustratively
      made to the following: Tulsiram Kanu v. State, Balbir Singh  v.  State
      of Punjab, M.G. Agarwal v. State of Maharashtra, Khedu Mohton v. State
      of Bihar, Sambasivan v. State of Kerala, Bhagwan  Singh  v.  State  of
      M.P. and State of Goa v. Sanjay Thakran.


      21. A concise statement of the law on the issue that had emerged after
      over half a century of evolution since Sheo Swarup is to be  found  in
      para 42 of the Report in Chandrappa v. State of  Karnataka.  The  same
      may, therefore, be usefully noticed below:


            “42. From the above decisions,  in  our  considered  view,  the
           following general principles regarding powers of  the  appellate
           court while dealing with an appeal against an order of acquittal
           emerge:


           (1) An appellate court has full power to  review,  re-appreciate
           and reconsider the evidence upon which the order of acquittal is
           founded.


           (2) The Code of Criminal Procedure,  1973  puts  no  limitation,
           restriction or condition  on  exercise  of  such  power  and  an
           appellate court on the evidence before  it  may  reach  its  own
           conclusion, both on questions of fact and of law.


           (3) Various expressions, such as,  ‘substantial  and  compelling
           reasons’,  ‘good   and   sufficient   grounds’,   ‘very   strong
           circumstances’,  ‘distorted  conclusions’,  ‘glaring  mistakes’,
           etc.  are  not  intended  to  curtail  extensive  powers  of  an
           appellate  court  in   an   appeal   against   acquittal.   Such
           phraseologies are more in the nature of ‘flourishes of language’
           to emphasise the reluctance of an appellate court  to  interfere
           with acquittal than to curtail the power of the court to  review
           the evidence and to come to its own conclusion.


           (4) An appellate court, however, must bear in mind that in  case
           of acquittal, there is  double  presumption  in  favour  of  the
           accused. Firstly, the presumption of innocence is  available  to
           him under the fundamental principle  of  criminal  jurisprudence
           that every person shall be presumed to be innocent unless he  is
           proved guilty by a competent court of law. Secondly, the accused
           having secured his acquittal, the presumption of  his  innocence
           is further reinforced, reaffirmed and strengthened by the  trial
           court.
           [pic]
           (5) If two reasonable conclusions are possible on the  basis  of
           the evidence on record, the appellate court should  not  disturb
           the finding of acquittal recorded by the trial court.”
                                                         (emphasis supplied)


      22. Another significant aspect of the law in this regard which has  to
      be noticed is that an appeal to this Court against  an  order  of  the
      High Court affirming or reversing the order of conviction recorded  by
      the trial court is contingent on grant of leave by  this  Court  under
      Article 136 of the Constitution. However, if  an  order  of  acquittal
      passed by the trial court is to be altered by the  High  Court  to  an
      order of conviction and the accused is to be sentenced to death or  to
      undergo life imprisonment or imprisonment  for  more  than  10  years,
      leave to appeal to this Court has been dispensed with and Section  379
      of the Code of Criminal Procedure, 1973, provides a statutory right of
      appeal to the accused in  such  a  case.  The  aforesaid  distinction,
      therefore, has to be kept in mind and due notice must be  had  of  the
      legislative intent to confer a special status to an appeal before this
      Court against an order of the High Court altering the  acquittal  made
      by the trial court. The issue had been dealt with  by  this  Court  in
      State of Rajasthan v. Abdul Mannan in the following terms, though in a
      different context: (SCC pp. 70-71, para 12)


               “12. As is evident from the  above  recorded  findings,  the
               judgment of  conviction  was  converted  to  a  judgment  of
               acquittal by the High Court. Thus, the  first  and  foremost
               question that we need to consider is in  what  circumstances
               this Court should interfere with the judgment of  acquittal.
               Against an order of acquittal, an appeal  by  the  State  is
               maintainable to this Court only with the leave of the court.
               On the contrary, if the judgment of acquittal passed by  the
               trial court is set aside by the High Court, and the  accused
               is sentenced to death, or life imprisonment or  imprisonment
               for more than 10 years, then the  right  of  appeal  of  the
               accused is treated as  an  absolute  right  subject  to  the
               provisions  of  Articles  134(1)(a)  and  134(1)(b)  of  the
               Constitution of  India  and  Section  379  of  the  Code  of
               Criminal Procedure, 1973. In light of this,  it  is  obvious
               that an appeal against acquittal is considered  on  slightly
               different  parameters  compared  to   an   ordinary   appeal
               preferred to this Court.”
      23. Having dealt with the principles of law that ought to be kept  in
      mind while considering an appeal against an order of acquittal passed
      by the trial court,  we  may  now  proceed  to  examine  the  reasons
      recorded by the trial court for acquitting the accused in the present
      case and those that prevailed with the High Court  in  reversing  the
      said conclusion and  in  convicting  and  sentencing  the  appellant-
      accused.”


38. Further, as contended by the learned senior counsel for  the  appellant,
the High Court has not noticed the very important lacuna in the  prosecution
case that as per the evidence of PW-2 and PW-3  Rameshwar  Nath,  the  bribe
money which was sought to be given to the accused on  08.07.1989  was  in  a
black rexine bag and not in the brown rexine bag as shown to  the  witnesses
before the trial court by the  prosecution.  It  has  further  come  to  our
notice that neither the two witnesses  nor  the  C.B.I.  officials  put  any
signature or identification mark on the bottles  containing  solution  which
is the most crucial evidence in the case to  prove  the  acceptance  of  the
gratification by the appellant from the complainant. As per  the  statements
of PW-2 and C.B.I. officials, the GC notes were not counted. However, it  is
a matter of serious doubt of acceptance the notes containing  in  the  black
rexine bag were touched by the accused.

     The aforesaid findings and reasons  recorded  by  the  High  Court  are
supported with the statements of law laid down by this Court in C.M.  Girish
Babu (supra) upon  which  the  learned  senior  counsel  on  behalf  of  the
appellant has rightly placed reliance. The relevant paragraph  is  extracted
below:

        “18. In Suraj Mal v. State (Delhi Admn.) this Court  took  the  view
        that mere recovery of tainted money divorced from the  circumstances
        under which it is paid is not sufficient to convict the accused when
        the substantive evidence in the  case  is  not  reliable.  The  mere
        recovery by itself  cannot  prove  the  charge  of  the  prosecution
        against the accused, in the absence of any evidence to prove payment
        of bribe or to show that the accused voluntarily accepted the  money
        knowing it to be bribe.”

39.  After careful observation of the above-mentioned facts and evidence  on
record and on careful examination of the aforesaid rival  legal  contentions
urged on behalf of the parties, with reference to the extracted  portion  of
the evidence of PW-2, PW-3 and PW-9, we are of the considered view that  the
prosecution has failed  to  prove  the  demand  and  acceptance  of  illegal
gratification by  the  appellant  from  the  complainant  PW-2,  upon  whose
evidence much reliance has been  placed  by  the  learned  counsel  for  the
respondent.

40. We, accordingly answer the point No. 2 in favour of the  appellant  that
exercise of  appellate  jurisdiction  by  the  High  Court  to  reverse  the
judgment and order of acquittal is not only erroneous but also suffers  from
error in law and liable to be set aside. Accordingly, we  answer  the  point
Nos. 1 and 2 in favour of the appellant.


Point No. 3.


41.  We have answered the point Nos. 1 and 2  in  favour  of  the  appellant
after adverting to the legal evidence and rival legal contentions  urged  on
behalf of the parties.  We have arrived at the aforesaid  conclusions  after
accepting the well founded submissions made by the  learned  senior  counsel
on behalf of the appellant.  In view of our findings and  reasons  on  point
Nos. 1 and 2, the submissions made by the learned counsel on behalf  of  the
respondent are rejected as the same are wholly untenable in law.
      For the foregoing reasons, we have to restore the judgment  and  order
of acquittal of the trial court  by  setting  aside  the  impugned  judgment
dated 07.01.2011 and order on sentence dated 08.03.2011 of  the  High  Court
of Delhi in Criminal Appeal No.337 of 1999.


42.  Accordingly, the appeal is allowed. The  appellant  is  on  bail.   The
bail bonds shall stand discharged.

………………………………………………………………………J.  [DIPAKMISRA]








                                   ………………………………………………………………………J.
                                  [V. GOPALA GOWDA]




 New   Delhi,                                                         August
 20,2014
-----------------------
[1] (2010) 9 SCC 189
[2] (2011) 6 SCC 450
[3] (2012) 10 SCC 383

[4] (2013) 3  SCC 721
[5](2002) 5  SCC 86
[6](2012) 11 SCC 642
[7] (2009) 3 SCC 779
[8] 2001 (1) SCC 691
[9]   (1997) 9 SCC 477
[10]  AIR 1958 SC 61

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