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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