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.
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
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.
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(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
