2022 (3) TMI 267 - HC - Indian Laws

Illegal gratification for the vehicle - offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act - Whether the prosecution has successfully established all ingredients to attract the offence punishable under Sections 7, 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, 1988, beyond all reasonable doubt? - Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference? - HELD THAT - It is crystal clear that in the event of a particular transporter/carrier is unable to furnish satisfactory documents to show that the tax has not been paid in respect of the goods that has been carried in the lorry, ship, vessel or the boat, the customs authority or the Commercial Tax Officer has got the authority to initiate penalty proceedings - In the case on hand, the GC note, which is marked at Ex.P-31 is issued by Ananthanarayana. It was he, who has been authorised to deal with the said case further. To that extent, there is some force in the arguments put forth on behalf of the accused/appellant that he is no way connected with the intercepting of the lorry and initiating proceedings. But, if that were to be so, why did he negotiate with Shabbir Huseni over telephone and arrived at a sum of ₹ 5 lakhs as illegal gratification and that ₹ 5 lakhs would be shared among himself, Ananthanarayana and Chandrashekar Dalwai is a question that remains un-answered. Shabbir Huseni is not possessing any previous enmity or animosity against the accused to depose falsely against him. Further, without initiating any penalty proceedings, there was no occasion for the accused or for that matter, Ananthanarayana to receive any money towards the penalty. It is crystal clear that after issuance of the GC note and after expiry of ten days, if no documents are furnished as is required under Ex.P-31, then only, initiation of the penalty proceedings would commence. In other words, GC note came to be issued on 7.12.2008 and thereafter, upto 17.12.2008, there could not have been any penalty proceedings at all. Further, even after 17.12.2008, having regard to the fact that the end point of supply of the equipment being at Koppal, which is more than 100 kilometers away from Dhulked check post, another show cause notice was required to be issued as per sub section (13) of Section 53 of the KVAT Act, giving ten days time to pay penalty - penalty proceedings would have commenced in the case only on 27.12.2008 that too, only in the event of not furnishing satisfactorily replying to the show cause notice. Further, it is Ananthanarayana would get a right to confiscate the equipment and auction it for the purpose of recovery of the penalty. On careful perusal of provision of Section 20 of the Prevention of Corruption Act, the prosecution has successfully established its case and discharged its initial burden by placing necessary oral and documentary evidence on record as discussed supra. Accused knew that it is his responsibility to rebut the said presumption. Accordingly, accused did tried to explain the incident perhaps with an intention to rebut the presumption by submitting the written submissions - Appreciation of the oral testimony of the shadow witness is peculiar in nature. His testimony is always intended to somehow inculpate the accused. However, only on that ground, the oral testimony of the shadow witness cannot be doubted. Corruption is a distinct type of offence. It is like a cancer to the society. It eats the social and economical health every second resulting in unimaginable consequences. It is only few officers of the Government misuse their official position forgetting their duty and loyalty to the State, resulting in eroding the economy of the country at large. It is often said that world is not suffering from 'violence of many'; but is suffering from 'silence of many'. Therefore, when a true complainant has taken recourse to the legal battle, his testimony cannot be disbelieved on flimsy reasons. The court has to take a pragmatic approach in appreciating the material evidence on record in a particular case - the finding recorded by the learned trial judge that accused is guilty of the aforesaid offences is not suffering from legal infirmity or perversity. Whether the sentence is excessive? - HELD THAT - Learned trial judge has awarded simple imprisonment for 2 years for Section 7 of the Act and awarded fine of ₹ 1 lakh, with default sentence of simple imprisonment for one year; whereas minimum punishment available for Section 7 of the Prevention of Corruption Act is three years. State has not preferred any appeal against the inadequacy of the sentence. Therefore, hands of this court are tied in enhancing the imprisonment period in the appeal filed by the accused - Further, for the offence under Section 13(1)(d) of the Prevention of Corruption Act, the Trial Court has sentenced the accused to undergo simple imprisonment for four years and imposed fine of ₹ 1,50,000/-. Since both the sentences are ordered to run concurrently, the mistake crept in while passing the inadequate sentence for the offence punishable under Section 7 of the Act would get into insignificance would only remain on record as an academic in nature. The Criminal Appeal is dismissed.

Summary

Issues Involved:
1. Conviction under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
2. Demand and acceptance of illegal gratification.
3. Validity of the sanction order.
4. Credibility of the prosecution witnesses.
5. Rebuttal of the presumption under Section 20 of the Prevention of Corruption Act.
6. Adequacy of the sentence.

Issue-Wise Analysis:

1. Conviction under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act:
The accused was convicted for demanding and accepting a bribe of ?5 lakhs for releasing a lorry detained at a commercial tax check post. The prosecution established that the accused, a Commercial Tax Officer, demanded the bribe and accepted it as illegal gratification. The trial court found the accused guilty and sentenced him to imprisonment and fines.

2. Demand and Acceptance of Illegal Gratification:
The complainant's lorry was intercepted, and the driver was asked for a bribe. The complainant, after failed negotiations, lodged a complaint with the Lokayuktha Police. The police arranged a trap, and the accused was caught accepting the tainted money. The color test confirmed the presence of phenolphthalein powder on the accused's hands, indicating he handled the bribe money. The complainant and shadow witness's testimonies corroborated the demand and acceptance of the bribe.

3. Validity of the Sanction Order:
The defense argued that the sanction order was vitiated as it was modified at the investigating officer's request. However, the court found that the sanctioning authority had reviewed the FIR and other documents before issuing the sanction order. The court dismissed the defense's contention, affirming the validity of the sanction order.

4. Credibility of the Prosecution Witnesses:
The defense challenged the credibility of the complainant and the shadow witness, suggesting discrepancies in their testimonies. However, the court found their testimonies consistent and credible. The shadow witness, a government employee, had no reason to falsely implicate the accused. The court held that their evidence, along with the corroborative documentary evidence, sufficiently established the prosecution's case.

5. Rebuttal of the Presumption under Section 20 of the Prevention of Corruption Act:
The court noted that once the prosecution proved the demand and acceptance of the bribe, the burden shifted to the accused to rebut the presumption of guilt under Section 20 of the Act. The accused's explanation that the money was part of a penalty was found implausible and unsupported by any evidence. The court concluded that the accused failed to rebut the presumption of guilt.

6. Adequacy of the Sentence:
The trial court sentenced the accused to 2½ years of simple imprisonment for the offense under Section 7 and 4 years for the offense under Section 13(1)(d), with fines for both offenses. Although the minimum punishment for Section 7 is three years, the state did not appeal the inadequacy of the sentence. The sentences were ordered to run concurrently. The court found no mitigating circumstances to reduce the sentence and upheld the trial court's decision.

Conclusion:
The High Court dismissed the appeal, affirming the trial court's judgment. The court found that the prosecution had successfully established the accused's guilt beyond a reasonable doubt. The explanations offered by the accused were deemed implausible, and the evidence presented by the prosecution was found credible and convincing. The sentence imposed by the trial court was upheld, and the accused was ordered to surrender for serving the remaining part of the sentence.