2015 (1) TMI 1424 - SC - Indian Laws

Bribe - demand of illegal gratification - Burden to prove - Offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act 1988 - 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? HELD THAT - 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 - 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 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. 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. 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 - Appeal allowed.

Summary

Issues Involved:
1. Demand and acceptance of bribe.
2. Identification of the appellant as the "station writer."
3. Discrepancies in the amount of bribe demanded and paid.
4. Reliability of witness testimonies.
5. Legality of the conviction under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
6. Validity of the phenolphthalein test results.

Issue-wise Detailed Analysis:

1. Demand and acceptance of bribe:
The High Court found no evidence of demand for illegal gratification by the appellant under Section 7 of the Prevention of Corruption Act. This Court emphasized that "the demand of illegal gratification by the accused is the sine qua non for constituting an offence under the provisions of the Act." The absence of proof of demand meant that the acceptance of illegal gratification under Section 13(1)(d) could not be established. Thus, the conviction under Section 13(1)(d) read with Section 13(2) was unsustainable.

2. Identification of the appellant as the "station writer":
The appellant contended that he was never assigned the role of "station writer." Witnesses, including PW4, testified that another individual named Ajith was the "station writer." The courts below did not adequately consider this testimony, leading to an erroneous conclusion about the appellant's role.

3. Discrepancies in the amount of bribe demanded and paid:
The prosecution alleged that the appellant demanded Rs. 1500/- but only Rs. 200/- was paid and recovered, with the appellant allegedly returning Rs. 50/- due to lack of money. This disparity cast doubt on the prosecution's narrative and the sequence of events.

4. Reliability of witness testimonies:
Key witnesses, PW1 and PW2, did not support the prosecution's version. PW2, the complainant, turned hostile, and PW1 did not acknowledge ownership of the tea shop where the bribe was allegedly accepted. The prosecution examined only nine out of 16 witnesses, weakening their case.

5. Legality of the conviction under Section 13(1)(d) read with Section 13(2):
The High Court erroneously affirmed the conviction under Section 13(1)(d) despite no proof of demand under Section 7. The Supreme Court noted that "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."

6. Validity of the phenolphthalein test results:
The phenolphthalein test results were inconclusive. The solution used for the appellant's hands did not show the expected pink color, unlike other samples. The Trial Court's explanation that the color faded over time was not accepted. Additionally, the shirt pocket where the bribe money was allegedly kept showed no color change.

Conclusion:
The Supreme Court allowed the appeal, stating that the prosecution failed to prove the charges beyond a reasonable doubt. The conviction and sentence under Section 13(1)(d) read with Section 13(2) were set aside, and the appellant was ordered to be released if not required in any other case.