STATE OF KERALA Vs C.P. RAO
Bench: ASOK KUMAR GANGULY,DEEPAK VERMA, , ,
Case number: Crl.A. No.-001098-001098 / 2006
Diary number: 17462 / 2005
Advocates: RAMESH BABU M. R. Vs
GUNTUR PRABHAKAR
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.