C SUKUMARAN Vs STATE OF KERALA
Bench: V. GOPALA GOWDA,R. BANUMATHI
Case number: Crl.A. No.-000192-000192 / 2015
Diary number: 21463 / 2014
Advocates: NISHE RAJEN SHONKER Vs
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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.
2. 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.
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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.
3. 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
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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.
4. 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)
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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.
5. 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 3½ 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
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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.
6. 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
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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.
7. 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
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framed against him.
8. 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.
9. 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
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demand of gratification, the charge under Section 13(1)
(d) of the Act is wholly unsustainable in law.
10. 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.
11. 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
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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.
12. 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.
13. 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
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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.
14. 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.
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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.
15. 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.
16. Further, none of the prosecution witnesses have
actually deposed in the case that the appellant was the
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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
1 (2014) 13 SCC 55
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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)
17. 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
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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.
18. 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.
19. The decision of this Court referred to supra upon
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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.
20. 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