2023 (7) TMI 1356 - HC - Indian Laws

Demand of illegal gratification by the accused - HELD THAT - In the case on hand the prosecution failed to provide cogent evidence to prove the demand of illegal gratification by the appellant herein since the complainant-PW.2 turned hostile and PW.1 and PW.3, being the hearsay witness, they deposed that PW.2 only informed them and the police about the demand and acceptance of the bribe by the accused. When the complainant himself turned hostile, then evidentiary value cannot be attached to the evidence of PW.1 and PW.3 and moreover, the audio clip in respect of the demand is not clearly admitted by the Investigation Officer-PW.5 so also the witness PW.3. The Hon'ble Apex Court in NEERAJ DUTTA VERSUS STATE (GOVT. OF N.C.T. OF DELHI) 2022 (12) TMI 1490 - SUPREME COURT held that absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence and the presumption under Section 20 of the Act can be drawn only after the demand for and acceptance of illegal gratification is proved. In the instant case on hand, since the complainant himself disowned his statement and totally given go by to the prosecution case and also there is a cloud in the evidence of PW.1 and PW.3, in such eventuality, the benefit of doubt should be extended to accused - the failure of prosecution to prove the demand of illegal gratification would be fatal and mere recovery of the amount from the person of the accused of the offence under Sections 7 or 13 of the Act would not entail his conviction there under. In the instant case, the amount of Rs. 4,500/-recovered is not from the person of the accused, but from the table drawer of the accused. When PW.1-the complainant himself categorically denied the aspect of demand and acceptance of the bribe and the audio clipping was also not clear, in such circumstances, inference cannot be drawn against the accused. The prosecution failed to prove the guilt of accused in this case beyond reasonable doubt - the prosecution failed to prove the guilt of accused beyond reasonable doubt. Accordingly the conviction held against accused by the trial Court is liable 8 to be set-aside. Appeal allowed.

Summary

Issues Involved:

1. Whether the judgment under appeal suffers from any perversity or illegality?
2. Whether the Special Judge was justified in convicting the accused/appellant for the offence under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988?

Summary:

Issue 1: Perversity or Illegality in the Judgment

The appellant was convicted for offences under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988, and sentenced to four years imprisonment and a fine of Rs. 25,000. The appellant contended that the judgment was perverse and illegal, arguing that the trial court convicted him based on assumptions and without appreciating the evidence. The appellant emphasized that the prosecution failed to prove the demand and acceptance of the bribe, which is a sine qua non for establishing the offence under the Act. The appellant relied on several judgments, including B Jayraj Vs. State of Andhra Pradesh and P Sathyanarayana Murthy Vs. District Inspector of Police, to substantiate his arguments.

Issue 2: Justification of Conviction by Special Judge

The prosecution's case was based on the allegation that the appellant, as the Taluk Executive Officer, demanded and accepted a bribe of Rs. 4,500 for recommending loan applications under a self-employment scheme. The prosecution examined five witnesses and produced 26 documents. The complainant (PW.2) turned hostile and denied the demand and acceptance of the bribe. The shadow witness (PW.3) and the investigation officer (PW.5) supported the prosecution's case. However, the court found that the evidence of PW.1 and PW.3 was hearsay and not reliable. The court noted that the voice recorder evidence was not clear and the bribe amount was recovered from the drawer, not from the person of the accused. The court also considered the explanation offered by the accused that the money was planted in his drawer without his knowledge.

Conclusion

The court concluded that the prosecution failed to prove the demand and acceptance of the bribe beyond reasonable doubt. The court emphasized that mere recovery of tainted money is not sufficient to convict the accused without proof of demand. The court referred to the judgments of the Hon'ble Apex Court, including Neeraj Dutta Vs. State (Government of NCT of Delhi), which clarified that proof of demand and acceptance is essential for conviction under the Act. The court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant of all charges.