advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, January 30, 2015

as the prosecution has failed to prove the demand of illegal gratification made by the appellant from the complainant and acceptance of the bribe money by the appellant. Further, the phenolphthalein test cannot be said to be a conclusive proof against the appellant, as the colour of the solution with regard to the other samples were pink and had remained so throughout. However, the lime solution in which the appellant's hands were dipped in, did not show the same pink colour. The reason assigned by the Trial Court is that the colour could have faded by the lapse of time. The said explanation of the Trial Court cannot be accepted by us in view of the fact that the colour of the other samples taken by the Investigation Officer after the completion of the trap laid against the appellant had continued to retain the pink colour. Moreover, the sample of the shirt worn by the appellant which was produced before the Trial Court did not show any colour change on the shirt's pocket section, where the bribe money was allegedly kept by him after the complainant had allegedly given him the bribe money. Thus, on a careful perusal of the entire evidence on record along with the statement of the prosecution witnesses, we have to hold that the prosecution has failed to satisfy us beyond all reasonable doubt that the charge levelled against the appellant is proved.


 NON REPORTABLE





                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No. 192 of 2015
                       (S.L.P (Crl.) No.9835 of 2014)


C. SUKUMARAN                         ....APPELLANT

                                     VS.

STATE OF KERALA                     .....RESPONDENT




                               J U D G M E N T




V.GOPALA GOWDA, J.


    Leave granted.

This appeal is filed by the appellant  against  the  impugned  judgment  and
order dated 22.05.2014 passed by the High Court of Kerala, at  Ernakulam  in
Criminal Appeal No.108 of 2001, whereby the High Court  has  partly  allowed
the appeal of the appellant and upheld the order of conviction  recorded  by
the   Court   of   Ld.   Enquiry    Commissioner    and    Special    Judge,
Thiruvananthapuram, vide its judgment and order dated 30.01.2001 in C.C  No.
63 of 1999 and convicted the appellant  for  the  offence  punishable  under
Section 13(1)(d) read with Section 13(2) of  the  Prevention  of  Corruption
Act, 1988 (hereinafter referred to as 'the Act') with rigorous  imprisonment
for a period of one year and  a  fine  of  Rs.10,000/-  and  in  default  of
payment of fine, to further undergo six months simple imprisonment.

For the purpose of considering the rival legal contentions urged  on  behalf
of the parties in this appeal and with a  view  to  find  out  whether  this
Court is required to interfere  with  the  impugned  judgment  of  the  High
Court, the necessary facts are briefly stated hereunder:
    It is the case of the  prosecution  that  the  appellant,  who  was  the
"station writer" at the Fort Police Station, Thiruvananthapuram, demanded  a
sum of Rs.1500/- from the complainant PW2, for  releasing  certain  articles
belonging to him, which were taken into custody by the police. PW2  was  the
surety to an accused in a criminal case pending before  the  Judicial  First
Class  Magistrate-II,  Thiruvanathapuram  and  since  the  accused  in  that
particular case had absconded, PW2 was ordered to pay Rs.3000/-  as  penalty
and a warrant was issued against him  in  this  regard.  Therefore,  he  was
apprehended by  the  police  and  his  personal  belongings,  including  the
bicycle, wallet, fountain pen, etc. were retained by  the  police.  PW2  was
subsequently released by the Magistrate, wherein he was given  further  time
to remit the money. It  is  the  case  of  the  prosecution  that  when  PW2
approached the police station on 09.12.1998, to  get  back  his  belongings,
the station writer demanded an amount of Rs.1500/- as  bribe  for  returning
the articles which were seized by the police.

PW2 approached PW6, the Deputy Superintendent of Police, Vigilance and Anti-
Corruption Bureau, Special Investigation Unit, Thiruvanathapuram and gave  a
First Information Statement, upon which an  F.I.R.  was  registered  against
the appellant. Thereafter, a trap was arranged by PW6 and the appellant  was
arrested for the offences punishable under Sections 7 and 13(1) (d)  of  the
Act. The Investigation Officer after completing all  the  formalities  filed
the final report before the Special Judge after framing the charges  against
the appellant. Several witnesses were examined and  various  documents  were
produced as evidence by the prosecution in support of  the  charges  against
the appellant.


 The learned Special Judge on appreciation of the evidence on  record  found
that the appellant was guilty of the offences punishable  under  Sections  7
and 13(1)(d) read with   Section  13(2)  of  the  Act  and  thereby  he  had
convicted and sentenced  him  with  3  years  of  imprisonment  each  under
Sections 7 and 13(1)(d) of the Act and further  ordered  that  the  sentence
must run concurrently. Aggrieved by the judgment  and  order  of  the  Trial
Court, the  appellant  had  preferred  an  appeal  before  the  High  Court,
questioning the correctness of the same and urging  various  legal  grounds.
The High Court on re-appreciation of the evidence  has  partly  allowed  the
appeal of the appellant. The High Court held  that  the  conviction  of  the
appellant under Section 7 of the Act  is  not  warranted  as  the  essential
element of demand of  illegal  gratification  by  the  appellant,  from  the
complainant, is not proved. However, the High Court has held that  there  is
a strong evidence against the appellant under Section 13(1)(d)  of  the  Act
to show  his  culpability.  The  High  Court  further  held  that  there  is
sufficient evidence to prove that PW2 had paid two decoy notes  of  Rs.100/-
denomination to the appellant and he had voluntarily accepted the  money  as
bribe from PW2. Hence, the appeal of the appellant was  partly  allowed  and
the conviction of the appellant under Section 7 of the Act  was  set  aside.
However, his conviction under Section 13(1)(d)read with Section 13(2)of  the
Act was confirmed and the order of sentence was modified. Aggrieved  by  the
judgment of conviction and sentence, this  appeal  has  been  filed  by  the
appellant, urging certain legal grounds for setting aside the  judgment  and
order of conviction and sentence imposed upon him.

 It is the contention of the learned counsel  on  behalf  of  the  appellant
that both in the First Information Statement and in the F.I.R, the  name  of
the appellant is not mentioned, specifically, in regard  to  the  demand  of
the bribe made by him from the complainant PW2. However, it is  specifically
mentioned in the complaint that the person who had demanded  the  bribe  was
the "station writer" of  the  Fort  Police  Station.  It  has  been  further
contended by the learned counsel for the appellant that  the  appellant  has
never been assigned the work of the "station writer" at the  police  station
and  further  urged  that  the  prosecution  has  failed  to   produce   any
documentary  evidence  to  prove  the  same   against   the   appellant   to
substantiate the charge against him.


  It  is  further  contended  by  the  learned  counsel  that  the  de-facto
complainant had deposed before the Special  Judge  in  this  case  that  one
Ajith, was the  "station  writer"  of  the  Fort  Police  Station,  who  had
demanded the bribe from him for the return of the seized  articles  to  him.
It is further stated that PW4, who is the Sub-Inspector of the  Fort  Police
Station had deposed that there was  an  "additional  station  writer"  named
Ajith in the police station, which was not considered by  the  courts  below
while recording the findings of the guilt of the appellant  on  the  charges
framed against him.

 It has been further contended by the  learned  counsel  on  behalf  of  the
appellant that as per the complaint, Rs.1500/-  was  allegedly  demanded  by
the appellant as bribe  money  from  the  complainant.  However,  the  money
allegedly paid and recovered from the appellant was  only  Rs.200/-.  Hence,
there is a huge disparity between the money allegedly demanded and  paid  to
the appellant by the complainant.

 Further, it is contended that there existed several contradictions  in  the
deposition of the other prosecution witnesses, particularly,  PW1  and  PW2,
who are the star  witnesses  of  the  prosecution  case,  as  they  did  not
subscribe to the prosecution version of  the  story  at  all.  It  has  been
further contended that the prosecution had only examined nine out of the  16
witnesses mentioned  in  the  charge  sheet.  Further,  the  conviction  and
sentence was imposed for the alleged offence  under  Section  13(1)(d)  read
with Section 13 (2) of the Act by the High  Court  without  considering  the
relevant aspect of the case that in the absence of demand of  gratification,
the charge under Section 13(1)(d) of the  Act  is  wholly  unsustainable  in
law.

  On the other hand, it has been contended by the learned counsel on  behalf
of the respondent that the appellant is  the  station  writer  of  the  Fort
Police Station, a fact which has been stated by  the  prosecution  witnesses
in the case, which has been upheld by both the Trial Court  as  well  as  by
the High Court on proper appreciation of the evidence on record.


  It has been further contended by the learned counsel that  the  trap  laid
down by the Deputy Superintendent of Police, Vigilance  and  Anti-Corruption
Bureau, Special Investigation Unit, Thiruvanathapuram, had resulted  in  the
capturing of the appellant and the phenolphthalein test was  conducted  then
and there itself. The result of the test was positive for each  one  of  the
Rs.100/- notes. It has been further contended by him that a  sample  of  the
appellant's shirt was also taken as evidence as he had  kept  the  notes  in
his pocket. The test result for the same was  also  found  to  be  positive.
Further, when the trap was being  laid  to  catch  the  appellant,  PW2  was
specifically told by  the  officer  of  the  Vigilance  and  Anti-Corruption
Bureau, Special Investigation  Unit  to  handover  the  bribe-money  to  the
appellant only when he would ask for the same. Hence,  the  appellant  would
have received the money only when he would  have  asked  for  the  same  and
therefore, there was demand and acceptance on the part of the appellant.

  On the basis of the aforesaid rival legal contentions urged on  behalf  of
the parties, we have to find out whether  the  concurrent  findings  on  the
charge under Section 13(1)(d)  of  the  Act,  recorded  by  the  High  Court
against the appellant is legal and valid and whether the judgment and  order
of conviction and sentence under Section 13(2) of the Act, imposed upon  the
appellant by the High Court, warrants interference by this Court.

  With reference to the abovementioned  rival  legal  contentions  urged  on
behalf of the parties and the evidence  on  record,  we  have  examined  the
concurrent finding of fact on the charge made against the appellant. It  has
been  continuously  held  by  this  Court  in  a  catena  of   cases   after
interpretation of the provisions of Sections 7 and 13(1)(d) of the Act  that
the demand of illegal gratification by the accused is the sine qua  non  for
constituting an offence under the provisions of the Act.  Thus,  the  burden
to prove the accusation against the appellant  for  the  offence  punishable
under Section 13(1)(d) of the Act with regard to the acceptance  of  illegal
gratification from the complainant PW2, lies on the prosecution.

  In the present case, as has been rightly held by the High Court, there  is
no demand for the illegal gratification on the part of the  appellant  under
Section 7 of the Act. Therefore, in our view, the question of acceptance  of
illegal gratification from the complainant under the  provision  of  Section
13(1)(d) of the Act also does not arise. The learned Special Judge has  come
to the erroneous conclusion that the appellant had received  the  money  and
therefore he had recorded the finding that there was demand  and  acceptance
of the bribe money on the part of the appellant and convicted and  sentenced
the appellant. However, the High Court on  re-appreciation  of  evidence  on
record has held that the demand alleged to have been made by  the  appellant
from the complainant PW2, was not proved and that  part  of  the  conviction
and sentence was rightly set aside in the impugned  judgment.  However,  the
High Court has erroneously affirmed the conviction for the  alleged  offence
under Section 13(1)(d) read with  Section 13(2) of the Act, although as  per
law, demand by the appellant under Section 7 of the Act,  should  have  been
proved to sustain the charge under Section 13(1)(d) of the Act.

  Further, the fact that out of Rs.1500/- that  was  allegedly  demanded  as
bribe money from the complainant, an amount of only  Rs.250/-  was  paid  by
him, out of which the appellant allegedly managed to return Rs.50/-  to  the
complainant, since he had no money left, makes us pause and ponder over  the
facts and circumstances of the case and casts a serious shadow of  doubt  on
the sequence of events as narrated by the prosecution.

  Further, none of the prosecution witnesses have actually  deposed  in  the
case that the appellant was the person who had  demanded  and  accepted  the
bribe from the complainant and since  PW2  has  materially  turned  hostile,
therefore, neither the demand aspect nor the acceptance of the  bribe  money
can be verified from any other witnesses of the  prosecution.  Further,  PW1
in his deposition before the Special Judge has also not supported  the  case
of the prosecution, as he had refused to acknowledge the  ownership  of  the
tea shop, on the premises of which the bribe money  was  allegedly  accepted
by the appellant from the complainant. Hence, it is safe  to  say  that  the
prosecution has failed  to  prove  beyond  any  reasonable  doubt  that  the
appellant had accepted the illegal gratification from the complainant  under
Section 13(1)(d) of the Act. In support of the same, the learned counsel  on
behalf of the appellant has rightly placed reliance  upon  the  decision  of
this Court in B. Jayaraj v. State of A.P.[1], which reads thus:-
"8. ......there is no other evidence to prove that the accused had made  any
demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be  relied
upon to come to the conclusion that the above material  furnishes  proof  of
the demand allegedly made by the accused. We  are,  therefore,  inclined  to
hold that the learned trial court as well as the High Court was not  correct
in holding the demand alleged to be made by the accused as proved. The  only
other material available is the recovery of the tainted currency notes  from
the possession of the accused. In fact such possession is  admitted  by  the
accused himself. Mere possession and recovery of  the  currency  notes  from
the accused without proof of demand will not bring home  the  offence  under
Section 7. The above also will be conclusive insofar as  the  offence  under
Sections 13(1)(d)(i) and (ii) is concerned as in the absence  of  any  proof
of demand for illegal gratification, the use of corrupt or illegal means  or
abuse of position as a public  servant  to  obtain  any  valuable  thing  or
pecuniary advantage cannot be held to be established"
                                               (emphasis laid by this Court)

 Now, coming to the legality  of  the  conviction  of  the  appellant  under
Section 13(2) of the Act by the High Court in its judgment, the same  cannot
be allowed to sustain in law, as the prosecution has  failed  to  prove  the
demand of illegal gratification made by the appellant from  the  complainant
and  acceptance  of  the  bribe  money  by  the  appellant.   Further,   the
phenolphthalein test cannot be said to be a  conclusive  proof  against  the
appellant, as the colour of the solution with regard to  the  other  samples
were pink and had remained so throughout.  However,  the  lime  solution  in
which the appellant's hands were dipped in,  did  not  show  the  same  pink
colour. The reason assigned by the Trial Court  is  that  the  colour  could
have faded by the lapse of time. The said explanation  of  the  Trial  Court
cannot be accepted by us in view of the fact that the colour  of  the  other
samples taken by the Investigation Officer after the completion of the  trap
laid against  the  appellant  had  continued  to  retain  the  pink  colour.
Moreover, the sample of the shirt worn by the appellant which  was  produced
before the Trial Court did not show any colour change on the shirt's  pocket
section, where  the  bribe  money  was  allegedly  kept  by  him  after  the
complainant had allegedly given him the bribe money.


 Thus, on a careful perusal of the entire evidence on record along with  the
statement  of  the  prosecution  witnesses,  we  have  to  hold   that   the
prosecution has failed to satisfy us beyond all reasonable  doubt  that  the
charge levelled against the appellant is proved.




 The decision of this  Court  referred  to  supra  upon  which  the  learned
counsel for the appellant has rightly placed reliance  upon  and  the  ratio
laid down in the above case, aptly applies to the  fact  situation  on  hand
and therefore, we have to grant the relief  to  the  appellant  by  allowing
this appeal.


 For the aforesaid  reasons,  the  appeal  is  allowed.  Since,  the  charge
against the appellant is not proved, the  conviction  and  sentence  imposed
upon the accused-appellant by the High Court  under  Section  13(1)(d)  read
with Section 13(2) of the  Act  is  set  aside.  The  jail  authorities  are
directed to release the appellant forthwith, if he is  not  required  to  be
detained in any other case.


.....................................................................J.

                           [V. GOPALA GOWDA]



..................................................................J.
  [R. BANUMATHI]
 New Delhi,
 January 29, 2015
-----------------------
[1]    (2014) 13 SCC 55

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.