REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

    CRIMINAL APPEAL NO(s). 1098 OF 2006

STATE OF KERALA & ANR.                           Appellant (s)

                VERSUS

 C.P. RAO                                          Respondent(s)

J U D G M E N T

GANGULY, J.

Heard learned counsel for the parties.

This  is  an  appeal  against  the  judgment  and  order  of  

acquittal dated 19th January, 2005 rendered by the High Court.  

The respondent facing a trial, was convicted under Sections 7 and  

13(2) read with Section 13(1)(d) of Prevention of Corruption Act,  

1988 by the Special Judge, Thiruvananthapuram, in Criminal Case  

No.  9  of  1996  and  the  respondent  was  sentenced  to  undergo  

rigorous imprisonment for 20 months and pay a fine of Rs. 2500/-  

under the former charge and rigorous imprisonment for two years  

and  a  fine  of  Rs.  2500/-  under  the  second  charge.   Default  

stipulations were also there.

The facts relating to that case have been summed up in  

the judgment of the High Court and we are not repeating the same  

here once again.

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In  passing  the  order  of  acquittal,  the  High  Court  

examined and analysed in detail the evidence of the case.  The  

High Court found that the complainant CW 1 was not examined and  

the only explanation given was that he was not available in the  

country but no details were given as to where the complainant  

was.  The defence of the respondent in this case has also been  

noted by the High Court in some detail.

The  prosecution  case  is  that  the  demand  of  illegal  

gratification of Rs. 5000/- was made by the respondent from CW 1  

on 19.10.1994 for the purpose of giving pass marks to all the  

students  who  appeared  in  the  practical  examination  of  

pharmaceutical-II in D-Pharma final examination in the year 1994.  

It is an admitted case that the respondent alone cannot give such  

marks.  In view of the  examination system prevailing such marks  

have to be approved by others.  The respondent alone, therefore,  

is admittedly not in a position to allot higher marks.  Apart  

from that, it is the case of the respondent that when CW 1 met  

him in a hotel room, the respondent shouted that some currency  

notes had been thrust into his pocket by CW 1.  Such shouts of  

the respondent were heard by PW 1 and PW 2.  The evidence of PW 1  

and PW 2 were recorded by the Trial Court. The evidence of PW 1  

and PW 2 could not be, in any way, shaken by manner of cross-

examination.   PW  3  has  also  given  evidence  of  the  previous  

animosity between the college authorities and the respondent who  

had an occasion to file reports with the college authorities on  

the basis of some inspection.

In the  background of  these facts,  especially the  non-

examination of CW 1, was found very crucial by the High Court.

The High Court has referred to the decision of this Court in  

Panalal Damodar Rathi Vs.  State of Maharashtra 1979(4) SCC 526  

wherein a Three-Judge Bench of this Court held that when there  

was no corroboration of testimony of the complainant regarding  

the demand of bribe by the accused, it has to be accepted that  

the  version  of  the  complainant  is  not  corroborated  and,  

therefore, the evidence of the complainant cannot be relied on.

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In the aforesaid circumstances, the Three-Judge Bench in  

Pannalal  Damodar  Rathi  case(supra)  held  that  there  is  grave  

suspicion about the appellant's complicity and the case has not  

been proved beyond reasonable doubt. (see para 11)

This Court finds that the appreciation of the ratio in  

Panalal Damodar Rathi case(supra) by the High Court was correctly  

made in the facts and circumstances of the case.

 Apart from that, Mr. P.P. Rao, learned counsel for the  

respondent  has  drawn  attention  of  this  Court  to  some  other  

pronouncements of this Court on the relevant question.

In C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala  

reported in 2009(3)SCC 779, this Court while dealing with the  

case under the Prevention of Corruption Act 1988, by referring to  

its previous decision in the case of Suraj Mal Vs. State (Delhi  

Admn.) reported in 1979(4) SCC 725 held that mere recovery of  

tainted money, divorced from the circumstances under which it is  

paid,  is  not  sufficient  to  convict  the  accused  when  the  

substantive  evidence  in  the  case  is  not  reliable.   The  mere  

recovery by itself cannot prove the charge of the prosecution  

against the accused.  In the absence of any evidence to prove  

payment of bribe or to show that the accused voluntarily accepted  

the money knowing it to be bribe conviction cannot be sustained.  

(See para 18)

In a subsequent decision of this Court also under the  

Prevention of Corruption Act, in the case of A. Subair Vs. State  

of Kerala 2009(6) SCC 587, this Court made certain pertinent  

observations  about  the  necessity  of  the  presence  of  the  

complainant in a bribery case.  The relevant observations have  

been made in paragraph 18 and 19 which are quoted below:-

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18. The High Court held that since the Special  

Judge made attempts to secure the presence of the  

complainant and those attempts failed because he  

was  not  available  in  India,  there  was  

justification  for  non-examination  of  the  

complainant.

19. We  find  it  difficult  to  countenance  the  

approach of the High Court.  In the absence of  

semblance  of  explanation  by  the  investigating  

officer  for  the  non-examination  of  the  

complainant, it was not open to the courts below  

to find out their own reason for not tendering  

the complainant in evidence.  It has, therefore,  

to be held that the best evidence to prove the  

demand was not made available before the court.

Those  observations  quoted  above  are  clearly  applicable  

in this case.  In the context of those observations, this Court  

in paragraph 28 of  A. Subair (supra) made it clear that the  

prosecution has to prove the charge beyond reasonable doubt like  

any other criminal offence and the accused should be considered  

innocent till it is proved to the contrary by proper proof of

demand  and  acceptance  of  illegal  gratification,  which  is  the  

vital ingredient to secure the conviction in a bribery case.

In view of the aforesaid settled principles of law, we  

find it difficult to take a view different from the one taken by  

the High Court.

In coming to its conclusion, we are reminded of the well  

settled  principle  that  when  the  court  has  to  exercise  its  

discretion in an appeal arising against an order of acquittal,  

the Court must remember that the innocence of the accused is  

further re-established by the judgment of acquittal rendered by  

the High Court.  Against such decision of the High Court, the

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scope of interference by this Court in order of acquittal has  

been very succinctly laid down by a Three-Judge bench of this  

Court  in  the  case  of  Sanwat  Singh  &  others Vs.  State  of  

Rajasthan 1961(3) SCR 120.  At page 129, Justice Subba Rao(as His  

Lordship then was) culled out the principles as follows:-

“The foregoing discussion yields the following  

results:  (1)  an  appellate  court  has  full  power  to  

review the evidence upon which the order of acquittal  

is  founded;  (2)  the  principles  laid  down  in  Sheo  

Swarup's case 1934 L.R. 61 I.A. 398 afford a correct  

guide for the appellate court's approach to a case in  

disposing  of such  an appeal;  and (3)  the different  

phraseology used in the judgments of this Court, such  

as  (i)  “substantial  and  compelling  reasons”,  (ii)  

“good  and  sufficiently  cogent  reasons”,  and  (iii)  

“strong  reasons”  are  not  intended  to  curtail  the

undoubted  power of  an appellate  court in  an appeal  

against acquittal to review the entire evidence and to  

come to its own conclusion; but in doing so it should  

not  only  consider  every  matter  on  record  having  a  

bearing on the questions of fact and the reasons given  

by  the  court  below  in  support  of  its  order  of  

acquittal  in its  arriving at  a conclusion  on those  

facts, but should also express those reasons in its  

judgment, which lead it to hold that the acquittal was  

not justified.”  

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We  are  in  respectful  agreement  with  the  aforesaid  

salutary principles settled by this Court and we are constrained  

to  hold  that  this  appeal  has  no  merit  and  is  accordingly  

dismissed.

.......................J. (ASOK KUMAR GANGULY

.......................J. (DEEPAK VERMA)

NEW DELHI MAY 16, 2011.