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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1172 OF 2008

Selvaraj … Appellant

Versus

State of Karnataka … Respondent

J U D G M E N T

ARUN MISHRA, J.

1. The appeal has been preferred as against the judgment and order convicting

and sentencing the appellant for commission of offence punishable under section

5(1)(d) of the Prevention of Corruption Act, 1947, thereby reversing the judgment

of acquittal passed by the trial court and sentencing him for three months with a

fine of Rs.50,000/- and in default to undergo SI for six months.

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2. Briefly,  the  prosecution  case  is  that  the  appellant  was  working  as  First

Division Assistant in the District Treasury, Hassan. Peter Philip, CW-1 contacted

him to secure refund of loan subsidy in a sum of Rs.13,990/-. He met the accused

on 28.1.1988 who demanded illegal gratification of Rs.200/-. As the complainant

CW-1 did not like it, he contacted the Lokayukta Police on 1.2.1988 and lodged a

complaint. On the said date itself, trap was arranged. The Investigating Officer (IO)

secured presence of PW-1 and PW-2, the two officials of the Zila Parishad to act as

trap witnesses and smeared phenolphthalein powder on the bait money and handed

over the same to CW-1 with instruction to pay the same on demand. PW-2 was

instructed to act as a shadow witness.

3. Peter  Philip,  CW-1,  went  along  with  PW-2  to  the  said  office.  CW-1

requested the accused for passing the bill. On demand, CW-1 paid the money to the

accused  who  kept  the  same under  the  book  on  his  table.  PW-2 witnessed  the

transaction. On a signal being given by CW-1, the IO along with PW-1 came to the

scene, phenolphthalein test was done on hand wash, colour of the solution turned

pink, the solution was collected in  a separate bottle and sealed, the money was

recovered from the possession of the accused as per the seizure memo.

4. The complainant  CW-1 died  before  the  commencement  of  the  trial.  The

prosecution  examined,  in  all,  9  witnesses,  23 documents  were  exhibited and 8

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material objects were submitted. The Special Judge, Hassan, vide judgment and

order  dated  16.4.1999  acquitted  the  accused.  On  appeal,  the  High  Court  has

reversed the conviction, hence, the appeal has been filed in this Court.

5. It was submitted by learned counsel appearing on behalf of the appellant that

several material circumstances were considered by the learned Trial Judge which

have not  been adverted to  by the High Court  while  reversing the judgment  of

acquittal. Thus, an illegality has been committed. The evidence which has been

adduced could not be said to be reliable. The inherent improbabilities have been

ignored and the material contradictions  have been lightly brushed aside. There is

no  assessment  of  the  evidence  made  by  the  High  Court  while  reversing  the

judgment of  acquittal.

6. Learned counsel appearing on behalf of the State has supported the judgment

and contended that the High Court has given adequate reasons so as to discard the

trivial contradictions. The prosecution has proved the guilt beyond the periphery of

doubt. No case for interference in the appeal is made out.

After hearing learned counsel for the parties at length, and going into the

oral and documentary evidence on record, we are of the considered opinion that in

the peculiar facts and circumstances of the instant case, the judgment and order of

acquittal ought not to have been interfered with by the High Court.

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7. The trial court has given varied reasons while acquitting the appellant. The

trial  court  was  cautious  in  considering  the  evidence  in  minute  details  as  the

complainant  CW-1,  Peter  Philip,  had  died  who  could  not  be  examined  and

subjected to cross-examination by the accused. Particularly, when the complainant

had died and could not be subjected to cross-examination, in our opinion, quality

and credibility of the evidence adduced by the prosecution cannot be dispensed

with.

8. The accused was holding the post of First Division Assistant. He had been

transferred on promotion as Head Accountant in Sub-Treasurey at Sagar. He stood

relieved on 30.1.1988 before the date of incident. The accused was not working as

First Division Assistant in the District Treasury Office at Hassan on 1.2.1988. The

trial court has relied upon the relieving order Ex. D-1. The trial court has also

observed that K.C. Rajan, PW-4, has admitted that the accused had been promoted

and transferred as Head Accountant and was relieved on 30.1.1988. However, he

had not handed over the charge,  and on 1.2.1988 the accused did not mark his

attendance  as  he  was  under  transfer.  The  accused  was  supposed  to  hand  over

charge to one Shivaramaiah who was not available on 1.2.1988 as he had gone to

attend  a  departmental  examination.  On  1.2.1988,  the  accused  was  preparing

‘charge  list’  in  the  office.  Relying  upon  Ex.  P-8  the  trial  court  came  to  the

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conclusion that  on transfer of  the accused on 1.2.1988, G.T. Shivaramaiah was

placed in charge of the work which used to be looked after by the accused. Charge

list has not been produced in case it was prepared by the accused on 1.2.1988. The

accused on 1.2.1988 was not competent to transact any official business. Relying

upon the work distribution register, attendance register and the relieving order, the

version of K.C. Rajan, PW-4, has not been accepted by the trial court. It was also

opined  that  the  surrounding  circumstances  did  not  lend  credibility  to  the

prosecution version.

9. The trial court has also given reason for acquittal that K.C. Rajan, PW-4 was

competent to give final clearance. The accused was not the final authority. There

was some objection by the District Treasury Office. The bill was again presented

for clearance to the Treasury on 21.1.1988. Thus, it was doubted that the accused

had deliberately withheld the bill and demanded illegal gratification of Rs.200/-

from  Peter  Philip,  CW-1,  on  28.1.1988.  The  same  has  been  found  to  be

improbable. Cogent evidence was required in the circumstances. The trial court has

found that even before recording the First Information Report, the IO had sent for

and secured the  presence  of  the  witnesses.  Thus,  the FIR was based upon the

deliberations between Peter Philip, CW-1 and L.Somasekhar, PW-8. The trial court

also found that there was a discrepancy from where the money was recovered;

whether it was lying on the table or inside the drawer of the table. It was held that

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the money was not recovered from the possession of the accused. The colour of the

wash in MO-4 was not pink but contained dirty particles. The accused was not in

possession of the subsidy bill. Thus, there was no reason to give him the money.

The prosecution case that the accused was working as First Division Assistant on

1.2.1988 and was in-charge of the billing section, has not been found to be proved.  

10. The High Court while reversing the judgment of  acquittal  in a short and

cryptic judgment, has not cared to go into the various reasoning employed by the

trial court. It has gone into only two factual aspects; firstly, into discrepancy as to

time when the FIR was registered and witnesses were summoned, which was found

not to be material one; and secondly, it observed whether the money was recovered

from the drawer  of  the table or  it  was  lying on the table,  was insignificant  as

witnesses might not have remembered it due to lapse of time, which are the only

reasons attributed for reversing the judgment of acquittal.  

11.         It is apparent that the High Court has failed in its duty to come to the close

quarter of the reasoning employed by the trial court while reversing the judgment

of acquittal. Appreciation of evidence to hold it to be credible was required which

has  not  been  done  by  the  High  Court  at  all.  In  a  cursory  manner  without

re-appraisal of the evidence and probabilities, the judgment of acquittal has been

reversed.  Though the High Court  has the power to re-appraise  the evidence in

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appeal against acquittal but that has not been done. It is incumbent upon the High

Court while reviewing the evidence and to reverse the order of acquittal to consider

all matters on record including the reasons given by the trial court in respect of the

order  of  acquittal  and  should  consider  all  the  circumstances  in  favour  of  the

accused which has not been done. In Kanu Ambu Vish v. The State of Maharashtra

[1971 (1) SCC 503], this Court has laid down thus :

“15. On a  consideration  of  the  evidence,  we  think that  the reversal  of  the order of acquittal  by the High Court was not warranted. Though the High Court has power on a review of the evidence to  reverse the order  of  acquittal,  yet  in  doing so it should  not  only consider  all  matters  on record including the reasons  given  by  the  Trial  Court  in  respect  of  the  order  of acquittal, but should particularly consider those aspects which are  in  favour  of  the  accused  and  ought  not  also  to  act  on conjunctions or surmises nor on inferences which do not arise on the evidence in the case.  In the view we have taken,  the Appeal is allowed, the judgment of the High Court reversed and the Appellant acquitted. The Appellant being on bail, his bail bond is cancelled.”

12. Considering the  reasons  given by the  trial  court  and on appraisal  of  the

evidence, in our considered view, the view taken by the trial court was a possible

one.  Thus,  the  High  Court  should  not  have  interfered  with  the  judgment  of

acquittal. This Court in Jagan M. Seshadri v. State of T.N. [2002 (9) SCC 639] has

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laid  down  that  as  the  appreciation  of  evidence  made  by  the  trial  court  while

recording the acquittal is a reasonable view, it is not permissible to interfere in

appeal. The duty of the High Court while reversing the acquittal has been dealt

with by this Court, thus :

“9. We have, with the assistance of learned counsel for the parties,  carefully  perused  the  evidence,  particularly,  the evidence of PW-19, PW-27, PW-30, PW-31, besides PW-34. In our opinion, the appreciation of evidence by the trial court of these  witnesses  is  sound and proper. On the  other  hand,  the High Court has fallen into an error by treating the case as one under Section 13(1)(e) read with Section 13(2) of the 1988 Act and by proceeding to hold the appellant guilty by invoking the Explanation  to  Section 13(1)(e),  which  Explanation  is conspicuous by its absence insofar as Section 5(1)(e) of the Act is  concerned.  We are  unable  to  appreciate  the submission of learned  counsel  for  the  State  that  PW-31,  being  the mother-in-law  of  the  appellant  who  had  supported  the explanation  offered by the appellant  regarding receipt  of  Rs. 50,000/-  and  Rs.  40,000/-  by  him  from  her  should  not  be believed. She is a prosecution witness. She was never declared hostile. The prosecution cannot wriggle out of her statement. As a matter  of  fact,  the  main sustenance  is  sought  by the High Court of its view on the basis of her evidence. The explanation offered  by the  appellant  has  not  been  accepted  by the  High Court by invoking proviso to Section 13(1)(e). The High Court has  opined  that  since  the  amount  allegedly  received  by  the appellant  from his  mother-in-law had "not  been intimated in accordance with the provisions of law", his explanation is not acceptable  and  the  appellant  would  be  deemed  to  have committed  criminal  misconduct  within  the  meaning  of

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Section 13(2) of the 1988 Act. We are constrained to observe that  the  High  Court  was  dealing  with  an  appeal  against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal  have  been  overlooked  by  the  High  Court.  If  the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.”

Similar is the decision of this Court in  State through Inspector of Police,

A.P.v. K. Narasimhachary [2005 (8) SCC 364]  :

“24. Having regard to the facts and circumstances of this case, we are of the opinion that two views are possible and the view of the High Court cannot be said to be wholly improbable; it cannot be said, in view of the discussions made hereinbefore, that  the materials  brought  on record would lead to  only one conclusion  i.e.  the  guilt  of  the  accused.  The  impugned judgment, therefore, is sustained.”

13. Coming  to  the  question  whether  the  view taken by the  trial  court  while

acquitting  the  accused  was  probable,  we  find  that  in  view  of  the  fact  that

complainant Peter Philip, CW-1 died before the trial, as such he was not available

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for cross-examination with respect to the facts which were in his knowledge as to

the demand of bribe and its payment.  We have to carefully look into the other

evidence  available.  In  the  absence  of  the  complainant,  the  onus  lay  upon  the

prosecution  to  adduce  credible  evidence  and  to  prove  the  guilt  beyond  the

periphery of  doubt. K.M.Eregowda, PW-2, had stated that 10 to 12 other officials

were sitting in the same room in which  bribe was paid. Taking of bribe in the

presence of 10 to 12 other officials of the Treasury Office is quite improbable. It

assumes  significance  in  the  circumstances  from  which  place  the  money  was

recovered; whether it was from the possession of the accused. PW-1 has stated that

he found currency notes on the table, and the accused was standing behind the

table. Whereas K.N. Eregowda, PW-2, has stated that the currency notes were kept

by the accused beneath the book on the table. Another witness L.Somashekara,

PW-8, IO, has stated that he recovered the money from the drawer of the table. The

versions given by the three witnesses are different from each other. Even if we

ignore  the  contradictions  between  the  versions  of  PW-1  and  PW-2,  the

contradiction with respect to place of recovery of money whether it was inside the

drawer of table or was lying on the table beneath the book is material one and

could not have been ignored. Apart from that, we find that the IO has stated that he

had  seized  Ex.  P-14,  release  order  of  subsidy  on  1.2.1988  and  it  had  been

mentioned thereon that it had been paid. As subsidy stood paid, it was incumbent

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upon  the prosecution to prove when, in fact, it was paid. Whether it was paid on

1.2.1988 or earlier, which fact has not been proved as the very basis of the crime is

release of  subsidy, for which bribe was being demanded by the accused. Though it

is not necessary to prove whether the accused was in a position to do the work for

which he has demanded the bribe, or was having the competence to do the work

for which he has demanded the bribe, however,  in the peculiar facts of the instant

case when the accused was under transfer, he had been relieved on 30.1.1988 and

while  Mr.  G.T.  Shivaramaiah  was  given  the  charge  of  the  post  accused  was

occupying,  he  was  not  on  duty  on  1.2.1988.  Even  if  we  accept  that  he  was

preparing the ‘charge list’ on 1.2.1988, which has not been produced, coupled with

the fact that the complaint was lodged on the same date and it appears even before

registration of the FIR, trap witnesses were called, all these facts improbabilised

the version of the prosecution and the trial court had opined in the circumstances

that there were some deliberations before recording the FIR. Since the complainant

was not available for cross-examination, the view taken by the trial court could not

be said to be the one which was not possible in the prevailing scenario. Even if two

views  are  possible  on  the  facts,  one  taken  by  the  trial  court  did  not  call  for

interference, especially in appeal against acquittal.

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14.       In  A. Subair v. State of Kerala [2009 (6) SCC 587], this Court has laid

down that illegal gratification has to be proved like any criminal offence and when

the evidence  produced by the prosecution has  neither  quality  nor  credibility, it

would  be  unsafe  to  rest  the  conviction  on  such  evidence.  This  Court  while

recording acquittal, has laid down thus :

“31. When  the  evidence  produced  by  the  prosecution  has neither  quality  nor  credibility,  it  would  be  unsafe  to  rest conviction upon such evidence. It is true that the judgments of the  courts  below  are  rendered  concurrently  but  having considered the matter thoughtfully, we find that the High Court as  well  as  the  Special  Judge  committed  manifest  errors  on account of unwarranted inferences. The evidence on record in this  case  is  not  sufficient  to  bring  home  the  guilt  of  the appellant. The appellant is entitled to the benefit of doubt.”

15. In State of Kerala & Anr. v. C.P. Rao [2011 (6) SCC 450], it has been laid

down that recovery of tainted money is not sufficient to convict the accused. There

has to be corroboration of the testimony of the complainant regarding the demand

of bribe and when the complainant is not available for examination during the trial,

court has to be cautious while sifting the evidence of other witnesses. Charge has

to be proved beyond reasonable doubt. This Court has laid down thus :

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“12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in para 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.

13. In coming to this 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 scope of interference by this Court is an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court  in  Sanwat  Singh  v. State  of  Rajasthan [1961  (3)  SCR 120]. At page 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows :

“9. 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 case [(1934-34) 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

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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.”

16.     In  G.V. Nanjundiah v. State (Delhi Administration) [1987 (Supp) SCC

266], it  was laid down that  the allegation of bribe taking should be considered

along with other material circumstances. Demand has to be proved by adducing

clinching evidence. When the fact indicating that the complainant was aware of the

amount, was not withheld by the accused, this Court disbelieved the allegation of

the complainant meeting the accused   and presence of strangers at the time of

giving bribe was held to be unnatural.  

17.          Thus, acceptance of the bribe has not been established by adducing

cogent evidence. In view of the circumstances discussed above, the view taken by

the trial court was a plausible one and could not have been interfered with by the

High Court,  that too without coming to the close quarters of the reasoning and

re-appraisal of the evidence. The judgment of the High Court is not only cryptic

but  also  no attempt  has  been  made to  look into  the  evidence  –  both  oral  and

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documentary. Thus, we have no hesitation in setting aside the judgment and order

passed by the High Court and restore that of the trial court. The appeal is allowed.

………………………….CJI (H.L. Dattu)

…………………………..J. (Arun Mishra)

New Delhi; …………………………J. August 18, 2015. (Amitava Roy)