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Friday, February 6, 2015

Ex-Parte disposal of Appeal dismissing the appeal filed by accused - Apex court re appraised the entire evidence - Hence No remand requires =

 Ex-Parte disposal of Appeal dismissing the appeal filed by accused - Apex court re appraised the entire evidence - Hence No remand requires =

  In the light of our own re-appraisal of the evidence  and  keeping  in
view the above-said principle in mind, we have also  come  to  a  conclusion
that twin requirements of demand and acceptance of illegal gratification  of
Rs.2000/- were proved on the basis of evidence adduced  by  the  prosecution
against the appellant and hence the  appellant  was  rightly  convicted  and
sentenced for the offences punishable under Section 7 read with and  Section
13 (1)(d) read with Section 13 (2)  of the Act.    
  Coming now to the  last  argument  of  the  learned  counsel  for  the
appellant that the  appeal should be remanded to  the  High  Court  for  its
rehearing afresh because no one appeared  for  the  appellant  in  the  High
Court  at the time of hearing  of  appeal  which  caused  prejudice  to  the
appellant.
 In our view, the High Court in such  circumstances  should  have
appointed any lawyer as amicus curie on behalf of  the  appellant  to  argue
appellant's case  instead of proceeding to  decide the appeal  ex  parte  on
merits.
 Indeed, in our considered opinion, it was  the  appropriate  course
which the High Court should have followed for deciding  the  appeal  finally
on merits to meet such eventuality.
  Be that as it may and keeping in view the aforesaid infirmity  noticed
in the case, we considered it proper and  in  the  interest  of  justice  to
undertake the exercise of appreciating the entire evidence in our  appellate
jurisdiction.
We, therefore, do not find any necessity or ground  to  remand
the case to the High Court for its fresh hearing.

                                                        Reportable
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.593 OF 2012

      L. Laxmikanta                                      Appellant(s)


                             VERSUS


State by Superintendent of Police,
Lokayukta                                     Respondent(s)


                               J U D G M E N T

Abhay Manohar Sapre, J.
1.    This criminal appeal is filed by the accused against the judgment  and
final order dated 24.05.2011 passed  by  the  High  Court  of  Karnataka  in
Criminal Appeal No.1792 of 2004.
2.    By impugned judgment, the High Court dismissed  the  appeal  filed  by
the appellant (accused) and confirmed the judgment of the trial court  which
convicted the appellant for the offences punishable  under  Sections  7  and
13 (1)(d) read with Section 13 (2) of  the  Prevention  of  Corruption  Act,
1988 (for short "the Act') and sentenced him to undergo two  years'  RI  and
to pay a fine  of  Rs.5000/-  in  respect  of  conviction  for  the  offence
punishable under Section 7 and to undergo four years' RI and to pay  a  fine
of Rs.10,000/- in respect of conviction for the  offences  punishable  under
Section 13(1)(d) and Section 13 (2)  of  the  Act  with  respective  default
clauses therein to suffer further  imprisonment.  Both  the  sentences  were
directed to run concurrently.
3.    The question which arises for consideration in this appeal is  whether
the Courts below were justified in convicting and awarding sentences to  the
appellant for the offences specified above?
4.    In order to  appreciate  the  grievance  of  the  appellant,  relevant
facts, which lie in a narrow compass, need mention infra.
5.    The appellant was working as a Warden of a hostel of college known  as
"Medical and Engineering College (SC/ST) Hostel  at  Banashankari  I  Stage,
Bangalore". The Hostel is run  by  the  Social  Welfare  Department  of  the
State. The complainant (PW-3) was the student of B.E.  Course  during  1999-
2000 and was occupying one room in the hostel. He failed in second  semester
and, therefore, appeared in the examination and was declared pass  in  2001.
This enabled him to join the third semester. However,  the  complainant  was
required to apply afresh to seek  re-admission  in  the  hostel  because  he
could not clear the  examination  as  provided  in  the  Hostel  Rules.  The
complainant, therefore, made a fresh application to the  Hostel  Authorities
seeking re-admission and allotment of a room.  His  application  was  to  be
forwarded to the  District  Officer  through  the  appellant  after  getting
countersigned from the Principal of  the  College.  The  appellant  did  not
provide  hostel  facilities  to  the  complainant  and  compelled   him   to
frequently visit his office to clear his file.  The accused  also  told  the
complainant that he (complainant) would get re-admission in the hostel  only
after paying to him (appellant) Rs. 2000/- as illegal gratification.
6.    The complainant finding that he would  not  get  re-admission  in  the
hostel unless he pays  Rs.  2000/-  to  the  appellant  by  way  of  illegal
gratification, went to the Office of Lokayukta and lodged  complaint  (Ex-P-
9) about this incident against the appellant. The Lokayukta officials  found
substance in the appellant's  complaint  and    accordingly  registered  the
complaint  for  giving  effect  to  it.  Four  currency  notes  of  Rs.500/-
denomination (total Rs. 2000/-)  were,  accordingly,  prepared  by  smearing
sodium carbonate on each note and were given to  the  complainant  by  CW-3.
The complainant was asked to keep four notes in his  pocket  by  CW-14.  The
complainant and raiding party sleuths (CW-2, CW-3 and  CW-14)  went  to  the
Hostel in Lokayukta's Police Jeep on 03.12.2001  at  around  4.15  p.m.   At
about 6.30 p.m, the appellant came in the office. The appellant  entertained
the complainant and shadow  witness  (PW-4)  and  first  took  them  to  his
chamber and then told them to go to room No. 5 and wait  in  the  room.  The
appellant then around 7.00/7.15 p.m. came  in  the  room  and  demanded  the
amount from the complainant. The complainant then gave  the  currency  notes
of Rs. 2000/- to the appellant, which were smeared with  the  solution.  The
appellant took the notes in his right hand and then kept them in  the   left
hand side pocket of his trouser. The raiding party then arrived and  trapped
the appellant. His hands were immersed in the chemical  solution,  which  on
being dipped, turned into  pink  colour.  The  appellant's  paint  was  also
immersed in the solution, which also turned into pink colour (MO-2).
7.    The raiding party then prepared  the  panchnama  (Ex-P-18)  and  after
completing the investigation and obtaining necessary sanction, filed charge-
sheet (Ex-P-4) against the appellant for his prosecution in relation to  the
offences punishable under Sections 7, 13(1)(d) and 13(2)  of  the  Act.  The
prosecution examined 8 witnesses, whereas the  appellant,  in  his  defense,
examined 6 witnesses. His statement was also recorded under Section  313  of
the Code of Criminal Procedure.
8.    The trial court, by judgment dated  16.12.2004,  held  that  mandatory
requirements of Section 7 read with Section 13  namely;  demand  of  illegal
gratification and its acceptance were proved against  the  appellant  beyond
any reasonable doubt by the prosecution and hence, the appellant was  liable
to  be  convicted  for  the  offences  in  question.  He  was,  accordingly,
convicted and directed to undergo sentences as mentioned above.
9.    Aggrieved, the appellant filed Criminal Appeal before the High  Court.
The High Court by impugned judgment, dismissed the appeal and  affirmed  the
conviction and sentence awarded by the Sessions Court. It  is  against  this
judgment; the accused felt  aggrieved  and  filed  this  appeal  by  special
leave.
10.   Learned counsel for the appellant while  assailing  the  legality  and
correctness of the impugned judgment contended  that  twin  requirements  of
Section  7  namely;  demand  of  illegal  gratification  and  its   eventual
acceptance by the appellant from the  complainant  were  not  proved  beyond
reasonable doubt by  the  prosecution  and  hence,  the  conviction  of  the
appellant is bad in law. Learned counsel urged that the Courts below  should
have believed the defence version which was more plausible. Learned  counsel
elaborated these submissions by taking us through the  evidence  on  record.
Learned counsel lastly submitted that  since  the  High  Court  decided  the
appeal on merits in the absence of appellant's counsel, hence  the  case  be
remanded to the High Court for rehearing of the appeal on merits afresh.
11.   Per contra, learned counsel for the respondent,  in  reply,  contended
that no case is  made  out  to  interfere  with  the  impugned  judgment  as
according to him twin mandatory requirements of Section  7,  namely;  demand
of gratification and its acceptance by the appellant  from  the  complainant
were made out by the prosecution  beyond  reasonable  doubt  and  hence  the
appeal deserves dismissal.
12.   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find no merit in any of the  submissions  of  the
learned counsel for the appellant.
13.   With a view to satisfy ourselves as to whether a case  of  demand  and
acceptance of illegal gratification which are  sine qua non  for  sustaining
conviction under Section 7 read with Section 13  ibid  of  the  accused  are
made out, we perused the entire evidence. Having so perused, we are also  of
the view  that  twin  requirements  of  demand  and  acceptance  of  illegal
gratification were rightly held proved against the appellant by  the  Courts
below and hence, no fault can be found in the findings of the  Courts  below
on this material issue for upholding the conviction of the appellant.
14.   On perusal of evidence of complainant (PW-3) and  the  shadow  witness
(PW-4), we find that it is consistent on the issue of demand and  acceptance
of  illegal  gratification  from  the  complainant  and   is   without   any
contradiction. There is, therefore, no reason to  disbelieve  the  testimony
of PW-3 (complainant) when he deposed that the appellant made  a  demand  of
Rs. 2000/- from him for allotment of a room in the  hostel.  It  is  not  in
dispute that PW-3 was staying  in  the  Hostel,  and  had  applied  for  re-
admission for allotment of room in the hostel. It is  also  not  in  dispute
that appellant being the  Warden  of the hostel  knew  the  complainant.  It
is  also  not  in  dispute  that  four  currency  notes  (each   Rs.   500/-
denomination) were given to the appellant which he  kept  in  his  trousers'
pocket and they changed their colour (pink) when  mixed  in  solution  along
with his hands and trousers' pocket.( Ex-P-18 ). PW-7   a  police  inspector
(I.O.) of Lokayukta, who investigated the case, duly  proved  the  articles.
We have not been able to find any evidence of the  defense  to  discard  the
evidence of prosecution on this material issue.
15.   We are not inclined to believe the defence version of  DW-1  and  DW-2
as, in our considered view, the   Courts  below,  rightly  did  not  believe
their version.  DW-1 is the student  who  was  occupying  one  room  in  the
hostel. According to him,  when he was coming out from the bathroom, he  saw
 that complainant and his friend were forcing the appellant  to  accept  the
money, which the appellant was refusing to  accept  while  standing  in  the
passage. He further deposed that he  does  not  know  as  to  what  happened
thereafter because he  went to his room. So far as DW-2 is concerned, he  is
also the student like DW-1.  He deposed that he  saw  appellant  along  with
the complainant and one person standing in  the  passage  where  complainant
was seen  offering money to the appellant. He said that  he  then  proceeded
to his room and did not see what had happened thereafter.
16.      This evidence, in our considered view, does not help the  appellant
in any manner for more than one reason. Firstly, there  is  nothing  in  the
defence version which deserves acceptance to acquit  the  appellant  of  the
charges leveled against  him.  Secondly,  the  story  that  complainant  was
forcing the appellant to accept the money and which he was not accepting  is
unbelievable in the  light  of  the  evidence  adduced  by  the  prosecution
because the trap was arranged in room No.5 and not in the passage.  Thirdly,
both the students (DW-1 and 2) were  the chance witnesses who  came  forward
to help the appellant and lastly, even according to appellant,  he  did  not
dispute that money was recovered from his body.  It  was  not  the  case  of
appellant that there was some previous lawful money transaction between  him
and complainant pursuant to which  complainant  repaid  the  said  money  to
appellant.  So far as the evidence of other defence witnesses is  concerned,
we have perused their evidence and find  no  relevancy  in  their  evidence.
None of  these  witnesses  have  witnessed  the  incident  and  hence  their
evidence does not in any way help the appellant.
17.   The two Courts below, therefore, rightly rejected the defence  version
being totally devoid of any merit. We  concur  with  the  reasoning  of  the
Courts below on this issue and accordingly uphold the same.
18.   It is a settled principle in law laid down by this Court in  a  number
of decisions that once  the  demand  and  voluntary  acceptance  of  illegal
gratification knowing it to  be  the  bribe  are  proved  by  evidence  then
conviction must follow under Section 7 ibid  against  the  accused.  Indeed,
these twin requirements are sine qua  non  for  proving  the  offence  under
Section 7 ibid. (See- C.M. Sharma vs. State of  Andhra  Pradesh  [(2010)  15
SCC 1].
19.   In the light of our own re-appraisal of the evidence  and  keeping  in
view the above-said principle in mind, we have also  come  to  a  conclusion
that twin requirements of demand and acceptance of illegal gratification  of
Rs.2000/- were proved on the basis of evidence adduced  by  the  prosecution
against the appellant and hence the  appellant  was  rightly  convicted  and
sentenced for the offences punishable under Section 7 read with and  Section
13 (1)(d) read with Section 13 (2)  of the Act.
20.   Coming now to the  last  argument  of  the  learned  counsel  for  the
appellant that the  appeal should be remanded to  the  High  Court  for  its
rehearing afresh because no one appeared  for  the  appellant  in  the  High
Court  at the time of hearing  of  appeal  which  caused  prejudice  to  the
appellant.  In our view, the High Court in such  circumstances  should  have
appointed any lawyer as amicus curie on behalf of  the  appellant  to  argue
appellant's case  instead of proceeding to  decide the appeal  ex  parte  on
merits.  Indeed, in our considered opinion, it was  the  appropriate  course
which the High Court should have followed for deciding  the  appeal  finally
on merits to meet such eventuality.
21.   Be that as it may and keeping in view the aforesaid infirmity  noticed
in the case, we considered it proper and  in  the  interest  of  justice  to
undertake the exercise of appreciating the entire evidence in our  appellate
jurisdiction. We, therefore, do not find any necessity or ground  to  remand
the case to the High Court for its fresh hearing.
22.   In the light of the foregoing discussion, we find  no  merit  in  this
appeal. It fails and is, accordingly, dismissed.  Since the  accused  is  on
bail, he be taken into custody forthwith to serve out the remainder  of  his
sentence.


.............................................................J.
                 [FAKKIR MOHAMED IBRAHIM KALIFULLA]


...........................................................J.
                 [ABHAY MANOHAR SAPRE]

      New Delhi,
      February 5, 2015.
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