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.
-----------------------
15
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.
-----------------------
15
