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Supreme Court of India
N. Vijayakumar vs State Of Tamil Nadu on 3 February, 2021Author: R. Subhash Reddy
Bench: Ashok Bhushan, R. Subhash Reddy
Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 100101 OF 2021
[Arising out of S.L.P.(Crl.)Nos.47294730 of 2020]
N.Vijayakumar …..Appellant
Versus
State of Tamil Nadu …..Respondent
JUDGMENT
R. Subhash Reddy, J.
1. Leave granted.
2. The sole accused in Special Calendar Case No.49 of 2011 on
the file of Special Court for Trial of Prevention of Corruption Act
Cases, Madurai, has filed these appeals, aggrieved by the conviction
recorded vide judgment dated 28.08.2020 and 22.09.2020 and
sentence imposed vide order dated 15.09.2020 and 29.09.2020 by the
Signature Not Verified
MEENAKSHI KOHLI
Date: 2021.02.03
Madurai Bench of the Madras High Court under Sections 7 and 13(2)
Digitally signed by
16:28:36 IST
Reason:
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read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short,
‘the Act’).
3. The appellantaccused was working as Sanitary Inspector in
8th Ward of Madurai Municipal Corporation. He was chargesheeted for
the offence under Sections 7, 13(2) read with 13(1)(d) of the Act
alleging that he demanded an amount of Rs.500/ and a cell phone as
illegal gratification from PW2 (Thiru. D. Gopal), who was working as
Supervisor in a Voluntary Service Organisation called Neat And Clean
Service Squad (NACSS), which was given sanitation work on contract
basis in Ward No.8 of Madurai Corporation. It was the case of the
prosecution that to send his report for extension of work beyond the
period of March 2003, when PW2 has approached him on 09 th and
10th of October 2003, such a demand was made, as such appellant
being a public servant demanded and accepted illegal gratification on
10th of October 2003 as a motive or reward to do an official act in
exercise of his official function and thereby he has committed
misconduct which is punishable under Sections 7, 13(2) and 13(1)(d)
of the Act. On denial of charge, charges were framed against him for
the aforesaid offences and he has pleaded not guilty. Therefore, he
was tried before the Special Court for the aforesaid alleged offences.
During the trial, on prosecution side, 12 witnesses were examined, i.e.
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PW1 to PW12; and 17 exhibits – Ex.P1 to P.17 and M.O.1 to M.O.4.
have been marked. No defence witness was examined and Ex.D1 to
D3 were marked during the crossexamination of PW6.
4. By considering the oral and documentary evidence on record,
trial court, by judgment dated 25.02.2014, acquitted the appellant.
Aggrieved by the judgment of the Special Court, State has preferred
Criminal Appeal (MD) No.6 of 2015 before the Madurai Bench of
Madras High Court. The Madurai Bench of Madras High Court, by
impugned judgment and orders, has reversed the acquittal, and
convicted the appellant for the offences under Section 7, 13(2) and
13(1)(d) of the Act and imposed the sentence of rigorous imprisonment
for one year and imposed the penalty of Rs.5000/. Aggrieved by the
conviction recorded and sentence imposed by the impugned
judgments and orders passed by the High Court, accused is before
this Court in these appeals.
5. We have heard Sri S. Nagamuthu, learned senior counsel
appearing for the appellant and learned counsel for the State of Tamil
Nadu.
6. Sri Nagamuthu, learned senior counsel appearing for the
appellant, by taking us to the evidence and other material on record,
has submitted that, the well reasoned judgment of the trial court,
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which was rendered by appreciating oral and documentary evidence
on record, is reversed by the High Court without recording valid and
cogent reasons. By relying on a judgment of this Court in the case of
Murugesan & Ors. v. State through Inspector of Police (2012) 10
SCC 383, mainly it is contended that the finding recorded by the trial
court is a “possible view” having regard to evidence on record and
even if other view is possible, same is no ground to reverse the
acquittal and to convict the accused. By referring to findings recorded
by the trial court, it is strenuously argued that the view taken by the
trial court is a “possible view” and without recording any contra
finding to the same, the High Court has convicted the appellant. It is
submitted that there is no finding recorded by the High Court
anywhere in the judgment that the view taken by the trial court is not
a “possible view”. It is submitted that in view of the material
contradictions, the trial court has disbelieved the testimony of PW2, 3
and 5 by recording valid reasons, but the High Court, without
assigning any reasons, has believed these witnesses. It is submitted
that even if the High Court was of the view that PW2, 3 and 5 can be
believed, unless it is held that the view taken by the trial court
disbelieving these witnesses is not a “possible view”, High Court ought
not have interfered with the judgment of acquittal recorded by the trial
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court. It is also submitted that having regard to reasons recorded,
findings recorded by the trial court cannot be said to be either
erroneous or unreasonable. By further referring to the oral evidence
on record, it is submitted that there are material contradictions in the
testimony of crucial witnesses, and without noticing the same the
High Court has convicted the appellant and imposed the sentence.
Further it is submitted that initially by judgment dated 28.08.2020,
High Court has recorded the conviction of the appellant, only for the
offence under Section 13(2) read with 13(1)(d) of the Act and imposed
the sentence of one year imprisonment and to pay a fine of Rs.5000/
vide order dated 15.09.2020. However, thereafter again the appeal
was listed under the caption “For being mentioned” on its own by the
Court on 22.09.2020 and convicted the appellant for the offence
under Section 7 of the Act also and by further order dated 29.09.2020
imposed the sentence of one year rigorous imprisonment for the
offence under Section 7 of the Act. It is submitted that the said
judgment of conviction rendered on 22.09.2020 and the order of
sentence dated 29.09.2020 is in violation of Section 362 of the Code of
Criminal Procedure. It is submitted that once the judgment is
rendered and conviction is recorded it was not open either to list the
matter for being mentioned or to convict the appellant for the offence
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under Section 7 of the Act also. Lastly it is submitted that the
judgment in this case was reserved on 17.12.2019 and the same was
pronounced after a period of more than six months, i.e., on
28.08.2020 as such same is in violation of guidelines contained in the
judgment of this Court in the case of Anil Rai etc. v. State of Bihar
(2001) 7 SCC 318.
7. On the other hand, Sri M. Yogesh Kanna, learned counsel
appearing for the respondentState has submitted that from the
evidence of PW2, 3, 5 and PW11 it is clearly proved that on
10.10.2003, the appellantaccused has demanded and accepted
Rs.500/ and a mobile phone as bribe to process the application of
PW2 for the extension of contract. It is submitted that inspite of
cogent and valid evidence on record, the trial court has acquitted the
appellant, and same is rightly reversed by the High Court, as such
there are no grounds to interfere with the same. It is further
submitted that in terms of the amended prayer, the appellant has
questioned only the judgment dated 22.09.2020 and the order
imposing sentence on 29.09.2020, as such, there is no challenge to
the conviction recorded and sentence imposed for the offence under
Section 13(2) and 13(1)(d) of the Act. It is submitted that by noticing
the minor contradictions, the trial court has acquitted the appellant,
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as such, the view taken by the trial court was not a “possible view”,
and the appellant is rightly convicted by the High Court and there are
no grounds to interfere with the same.
8. Having heard the learned counsels on both sides, we have
carefully perused the impugned judgments and the judgment of
acquittal rendered by the Special Court and other oral and
documentary evidence on record.
9. In these appeals, it is to be noticed that PW2 is the key
witness, and was the complainant. He was working as a Supervisor in
a Voluntary Service called NACSS which was awarded sanitation work
on contract basis for Ward No.8 of Madurai Municipal Corporation.
The sanctioning authority, who sanctioned to prosecute the appellant
was examined as PW1 and the complainant Thiru D. Gopal was
examined as PW2. It is evident from the deposition of PW2, 3, 5 and
11 that they reached the office of the accused at 05:30 p.m. on
10.10.2003, and at that point of time the accused was not found in
the seat and they have waited for him, and appellant has come to the
office at 05:45 p.m. on his bike and took his seat. PW2, in his
deposition has stated that when he met the appellantaccused along
with other witnesses, Sri Shanmugavel and Sri Ravi Kumaran
appellant has made a demand for Rs.500/ and cell phone. He has
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stated that in view of such demand he has handed over the powder
coated currency notes and cell phone which were received by the
accused and kept in the left side drawer of the table. The official
witness Thiru Shanmugavel is examined as PW3. He also stated in
his deposition, that when they reached the office of the accused,
accused was not in the seat. Therefore, they have waited and accused
arrived in the office at 05:45 p.m. PW2 in his deposition has clearly
stated that he met the accused earlier several times and again when
he met on 09.10.2003 along with PW5, the appellantaccused has
demanded for Rs.500/ and a cell phone as illegal gratification. In the
crossexamination PW2, has admitted that he never saw the accused
earlier and the appellant has made a demand when he met firstly on
09.10.2003. It is also clearly deposed by PW2 in the cross
examination that he was ill treated by the accused several times
earlier as he belonged to scheduled caste community. From his
deposition it is clear that there were ill feelings between the appellant
and the PW2. It is also clear from the evidence, after handing over
currency and cell phone, he along with other witnesses who have
accompanied him they came out of the office and signalled to the
inspector. PW2 also admitted in the crossexamination that he was
not having any details regarding the purchase of M.O.2 cell phone. It
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is also clear from the evidence that though the trap was at about
05:45 p.m., phenolphthalein test was conducted only at 07:00 p.m.
There is absolutely no evidence to show that why such inordinate
delay occurred from 05:45 p.m. to 07:00 p.m. The office of the Town
Assistant Health Officer and other officials of the department is also
near to the office of the appellant. PW3 in clear terms, has deposed
that only on demand of anticorruption officials, the accused had
taken and produced the money and cell phone, which was in the
drawer of the table. The Circle Health Inspector of Madurai
Corporation, who was examined as PW4 has deposed in the cross
examination that he had no idea what was going on before he reached
the office and he has also deposed that he was not aware about
Rs.500/ and cell phone, by whom and when it was kept. He, too has
deposed in the crossexamination that only on the direction of the
inspector the appellantaccused has taken out the money and the cell
phone. The deposition of Mr. Ravikumaran who was examined as PW
5 is also in similar lines. Another key witness on behalf of the
prosecution is PW11, i.e., the Deputy Superintendent of Police,
Bodinayakkanur SubDivision, who was working as the Deputy
Superintendent of Police, Vigilance and Anticorruption Wing,
Madurai during the relevant time. He also in his deposition has
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clearly stated that the appellantaccused was tested with the prepared
Sodium Carbonate Solution at 19:00 hrs. It is clear from the
deposition of all the witnesses, i.e., PW2, 3, 5 and 11 that trap was at
about 05:45 p.m. and the hands of the appellant were tested only at
07:00 p.m. Further in the crossexamination, PW11 has clearly
stated that when they were monitoring the place of occurrence for
about one hour and during that period many persons came in and out
of the office of the appellant. Added to the same, admittedly, after
completion of the phenolphthalein test, statement of the appellant was
not recorded as required under Rule 47 Clause 1 of the Vigilance
Manual. Further PW11 also clearly deposed in the crossexamination
that he did not test the hands of the appellantaccused immediately
after payment and handing over of the money and cell phone. Further
PW4 and PW11 both have stated in their evidence that, only when
TLO has asked the bribe amount and cell phone, the accused
produced the same by taking out from the left side drawer of his table.
It is fairly well settled that mere recovery of tainted money, divorced
from the circumstances under which such money and article is found
is not sufficient to convict the accused when the substantive evidence
in the case is not reliable. In view of the material contradictions as
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noticed above in the deposition of key witnesses, the benefit of doubt
has to go to the accusedappellant.
10. Mainly it is contended by Sri Nagamuthu, learned senior
counsel appearing for the appellant that the view taken by the trial
court is a “possible view”, having regard to evidence on record. It is
submitted that the trial court has recorded cogent and valid reasons
in support of its findings for acquittal. Under Section 378, Cr.PC, no
differentiation is made between an appeal against acquittal and the
appeal against conviction. By considering the long line of earlier cases
this Court in the judgment in the case of Chandrappa & Ors. v. State
of Karnataka (2007) 4 SCC 415 has laid down the general principles
regarding the powers of the appellate court while dealing with an
appeal against an order of acquittal. Para 42 of the judgment which is
relevant reads as under :
“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,
reappreciate 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
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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.
(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.”
Further in the judgment in the case of Murugesan (supra) relied on by
the learned senior counsel for the appellant, this Court has
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considered the powers of the High Court in an appeal against
acquittal recorded by the trial court. In the said judgment, it is
categorically held by this Court that only in cases where conclusion
recorded by the trial court is not a possible view, then only High Court
can interfere and reverse the acquittal to that of conviction. In the
said judgment, distinction from that of “possible view” to “erroneous
view” or “wrong view” is explained. In clear terms, this Court has held
that if the view taken by the trial court is a “possible view”, High Court
not to reverse the acquittal to that of the conviction. The relevant
paragraphs in this regard where meaning and implication of “possible
view” distinguishing from “erroneous view” and “wrong view” is
discussed are paragraphs 32 to 35 of the judgment, which read as
under :
“32. In the above facts can it be said that the view taken
by the trial court is not a possible view? If the answer is
in the affirmative, the jurisdiction of the High Court to
interfere with the acquittal of the appellantaccused, on
the principles of law referred to earlier, ought not to
have been exercised. In other words, the reversal of the
acquittal could have been made by the High Court only
if the conclusions recorded by the learned trial court did
not reflect a possible view. It must be emphasised that
the inhibition to interfere must be perceived only in a
situation where the view taken by the trial court is not a
possible view. The use of the expression “possible view”
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is conscious and not without good reasons. The said
expression is in contradistinction to expressions such
as “erroneous view” or “wrong view” which, at first
blush, may seem to convey a similar meaning though a
fine and subtle difference would be clearly discernible.
33. The expressions “erroneous”, “wrong” and
“possible” are defined in Oxford English Dictionary in
the following terms:
“erroneous.— wrong; incorrect.
wrong.—(1) not correct or true, mistaken.
(2) unjust, dishonest, or immoral.
possible.—(1) capable of existing, happening, or
being achieved.
(2) that may exist or happen, but that is
not certain or probable.”
34. It will be necessary for us to emphasise that a
possible view denotes an opinion which can exist or be
formed irrespective of the correctness or otherwise of
such an opinion. A view taken by a court lower in the
hierarchical structure may be termed as erroneous or
wrong by a superior court upon a mere disagreement.
But such a conclusion of the higher court would not
take the view rendered by the subordinate court outside
the arena of a possible view. The correctness or
otherwise of any conclusion reached by a court has to
be tested on the basis of what the superior judicial
authority perceives to be the correct conclusion. A
possible view, on the other hand, denotes a conclusion
which can reasonably be arrived at regardless of the fact
where it is agreed upon or not by the higher court. The
fundamental distinction between the two situations
have to be kept in mind. So long as the view taken by
the trial court can be reasonably formed, regardless of
whether the High Court agrees with the same or not, the
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view taken by the trial court cannot be interdicted and
that of the High Court supplanted over and above the
view of the trial court.
35. A consideration on the basis on which the learned
trial court had founded its order of acquittal in the
present case clearly reflects a possible view. There may,
however, be disagreement on the correctness of the
same. But that is not the test. So long as the view taken
is not impossible to be arrived at and reasons therefor,
relatable to the evidence and materials on record, are
disclosed any further scrutiny in exercise of the power
under Section 378 CrPC was not called for.”
Further, in the case of Hakeem Khan & Ors. v. State of Madhya
Pradesh (2017) 5 SCC 719 this Court has considered powers of
appellate court for interference in cases where acquittal is recorded by
trial court. In the said judgment it is held that if the “possible view” of
the trial court is not agreeable for the High Court, even then such
“possible view” recorded by the trial court cannot be interdicted. It is
further held that so long as the view of trial court can be reasonably
formed, regardless of whether the High Court agrees with the same or
not, verdict of trial court cannot be interdicted and the High court
cannot supplant over the view of the trial court. Paragraph 9 of the
judgment reads as under :
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“9. Having heard the learned counsel for the parties, we
are of the view that the trial court’s judgment is more
than just a possible view for arriving at the conclusion
of acquittal, and that it would not be safe to convict
seventeen persons accused of the crime of murder i.e.
under Section 302 read with Section 149 of the Penal
Code. The most important reason of the trial court, as
has been stated above, was that, given the time of 6.30
p.m. to 7.00 p.m. of a winter evening, it would be dark,
and, therefore, identification of seventeen persons would
be extremely difficult. This reason, coupled with the fact
that the only independent witness turned hostile, and
two other eyewitnesses who were independent were not
examined, would certainly create a large hole in the
prosecution story. Apart from this, the very fact that
there were injuries on three of the accused party, two of
them being deep injuries in the skull, would lead to the
conclusion that nothing was premeditated and there
was, in all probability, a scuffle that led to injuries on
both sides. While the learned counsel for the respondent
may be right in stating that the trial court went
overboard in stating that the complainant party was the
aggressor, but the trial court’s ultimate conclusion
leading to an acquittal is certainly a possible view on
the facts of this case. This is coupled with the fact that
the presence of the kingpin Sarpanch is itself doubtful
in view of the fact that he attended the Court at some
distance and arrived by bus after the incident took
place.”
11. By applying the above said principles and the evidence on
record in the case on hand, we are of the considered view that having
regard to material contradictions which we have already noticed above
and also as referred to in the trial court judgment, it can be said that
acquittal is a “possible view”. By applying the ratio as laid down by
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this Court in the judgments which are stated supra, even assuming
another view is possible, same is no ground to interfere with the
judgment of acquittal and to convict the appellant for the offence
alleged. From the evidence, it is clear that when the Inspecting Officer
and other witnesses who are examined on behalf of the prosecution,
went to the office of the appellantaccused, appellant was not there in
the office and office was open and people were moving out and in from
the office of the appellant. It is also clear from the evidence of PW3, 5
and 11 that the currency and cell phone were taken out from the
drawer of the table by the appellant at their instance. There is also no
reason, when the tainted notes and the cell phone were given to the
appellant at 05:45 p.m. no recordings were made and the appellant
was not tested by PW11 till 07:00 p.m. There are material
contradictions in the deposition of PW2 and it is clear from his
deposition that he has developed animosity against the appellant and
he himself has stated in the crossexamination that he was insulted
earlier as he belonged to scheduled caste. Further there is no answer
from PW11 to conduct the phenolphthalein test after about an hour
from handing over tainted notes and cell phone. The trial court has
disbelieved PW2, 3 and 5 by recording several valid and cogent
reasons, but the High Court, without appreciating evidence in proper
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perspective, has reversed the view taken by the trial court. Further,
the High Court also has not recorded any finding whether the view
taken by the trial court is a “possible view” or not, having regard to
the evidence on record. Though the High Court was of the view that
PW2, 3 and 5 can be believed, unless it is held that the view taken by
the trial court disbelieving the witnesses is not a possible view, the
High Court ought not have interfered with the acquittal recorded by
the trial court. In view of the material contradictions, the prosecution
has not proved the case beyond reasonable doubt to convict the
appellant.
12. It is equally well settled that mere recovery by itself cannot
prove the charge of the prosecution against the accused. Reference
can be made to the judgments of this Court in the case of C.M. Girish
Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in
the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55.
In the aforesaid judgments of this Court while considering the case
under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption
Act, 1988 it is reiterated that to prove the charge, it has to be proved
beyond reasonable doubt that accused voluntarily accepted money
knowing it to be bribe. Absence of proof of demand for illegal
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gratification and mere possession or recovery of currency notes is not
sufficient to constitute such offence. In the said judgments it is also
held that even the presumption under Section 20 of the Act can be
drawn only after demand for and acceptance of illegal gratification is
proved. It is also fairly well settled that initial presumption of
innocence in the criminal jurisprudence gets doubled by acquittal
recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the
judgment in the case of B. Jayaraj (supra) read as under :
“7. Insofar as the offence under Section 7 is
concerned, it is a settled position in law that demand of
illegal gratification is sine qua non to constitute the said
offence and mere recovery of currency notes cannot
constitute the offence under Section 7 unless it is
proved beyond all reasonable doubt that the accused
voluntarily accepted the money knowing it to be a bribe.
The above position has been succinctly laid down in
several judgments of this Court. By way of illustration
reference may be made to the decision in C.M.
Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2 SCC
(Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC
779 : (2009) 2 SCC (Cri) 1] .
8. In the present case, the complainant did not
support the prosecution case insofar as demand by the
accused is concerned. The prosecution has not
examined any other witness, present at the time when
the money was allegedly handed over to the accused by
the complainant, to prove that the same was pursuant
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to any demand made by the accused. When the
complainant himself had disowned what he had stated
in the initial complaint (Ext. P11) before LW 9, and
there is no other evidence to prove that the accused had
made any demand, the evidence of PW 1 and the
contents of Ext. P11 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.
9. Insofar as the presumption permissible to be
drawn under Section 20 of the Act is concerned, such
presumption can only be in respect of the offence under
Section 7 and not the offences under Sections 13(1)(d)(i)
and (ii) of the Act. In any event, it is only on proof of
acceptance of illegal gratification that presumption can
be drawn under Section 20 of the Act that such
gratification was received for doing or forbearing to do
any official act. Proof of acceptance of illegal
gratification can follow only if there is proof of demand.
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As the same is lacking in the present case the primary
facts on the basis of which the legal presumption under
Section 20 can be drawn are wholly absent.”
The above said view taken by this Court, fully supports the case of the
appellant. In view of the contradictions noticed by us above in the
depositions of key witnesses examined on behalf of the prosecution,
we are of the view that the demand for and acceptance of bribe
amount and cell phone by the appellant, is not proved beyond
reasonable doubt. Having regard to such evidence on record the
acquittal recorded by the trial court is a “possible view” as such the
judgment of the High Court is fit to be set aside. Before recording
conviction under the provisions of Prevention of Corruption Act,
courts have to take utmost care in scanning the evidence. Once
conviction is recorded under provisions of Prevention of Corruption
Act, it casts a social stigma on the person in the society apart from
serious consequences on the service rendered. At the same time it is
also to be noted that whether the view taken by the trial court is a
possible view or not, there cannot be any definite proposition and each
case has to be judged on its own merits, having regard to evidence on
record.
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13. Learned counsel for the appellant has also submitted that the
judgment and conviction for the offence under Section 7 of the Act
dated 22.09.2020 and 29.09.2020 is contrary to Section 362 of Cr.PC.
As we are in agreement with the case of the appellant on merits it is
not necessary to decide such issue. The learned counsel for the State
has submitted that as per the amended copy of the memo, the
appellant has challenged only judgment/order dated 22.09.2020 and
29.09.2020 and there is no challenge to the earlier judgment of
conviction dated 28.08.2020 and the order of sentence dated
15.09.2020, but at the same time it is to be noticed when the
judgment is subsequently rendered on 22.09.2020 for the offence
under Section 7 of the Act and further sentence is also imposed vide
order dated 29.09.2020, the appellant had filed interlocutory
application seeking amendment and the same was allowed by this
Court. In that view of the matter, merely because in the amended
memo the appellant has not mentioned about the judgment dated
28.08.2020 and the order dated 15.09.2020, same is no ground to
reject the appeals on such technicality. Further the judgments relied
by the learned counsel for the State also are of no assistance in
support of his case to sustain the conviction recorded by the High
Court.
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Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020
14. For the reasons stated supra, these appeals are allowed and
the impugned judgments of conviction dated 28.08.2020 and
22.09.2020 and orders imposing sentence dated 15.09.2020 and
29.09.2020 are hereby set aside. The appellant be released forthwith
from the custody, unless otherwise his custody is required in
connection with any other case.
………………………………J.
[Ashok Bhushan]
………………………………J.
[R. Subhash Reddy]
………………………………J.
[M.R. Shah]
New Delhi.
February 03, 2021
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