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TMI Blog2016 (1) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... ed position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable Under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The approach of both the trial court and the High Court in the case is erroneous as both the courts have relied upon the evidence of the prosecution on the aspect of demand of illegal gratification from the complainant-Jai Bhagwan (PW-2) by the Appellant though there is no substantive evidence in this regard and the Appellant was erroneously convicted for the charges framed against him - The prosecution has failed to prove the factum of demand of bribe money made by the Appellant from the complainant-Jai Bhagwan (PW-2), which is the sine qua non for convicting him for the offences punishable Under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The impugned judgment and order of the High Court is not only erroneous but also suffers from error in law and therefore, liable to be set aside - Appeal allowed. - Criminal Appeal No. 14 of 2016 (Arising out of SLP (Crl.) No. 703 of 2015) - - - Dated:- 6-1-2016 - T.S. Thakur and V. Gopala Gowda, JJ. For Appellant: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lease him on bail in connection with the alleged offences referred to supra. 6. The Appellant alleged to have demanded a bribe of ₹ 5000/- from the complainant-Jai Bhagwan for releasing his brother Krishan Kumar on bail. It is alleged that under duress, complainant-Jai Bhagwan (PW-2) paid ₹ 4,000/- as bribe to the Appellant. Thereafter, Krishan Kumar (PW-9) was released on bail and the Appellant asked the complainant-Jai Bhagwan to pay him the balance amount of ₹ 1,000/- on 30.7.2004 between 6.00 p.m. and 7.00 p.m. at Ditchau Kalan Bus Stand, Najafgarh. 7. The complainant-Jai Bhagwan (PW-2) approached the office of Anti Corruption Branch on 30.07.2004 and made a written complaint regarding the demand of bribe by the Appellant from him. The said written complaint was recorded by Sunder Dev (PW-12) in presence of Anoop Kumar Verma (PW-6). 8. The complainant-Jai Bhagwan took with him two Government Currency notes (for short the GC notes ) in the denomination of ₹ 500/- each and handed over the same to Inspector Sunder Dev (PW-12) who noted down the serial numbers of the said GC notes. Thereafter, phenolphthalein powder was applied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pink. The solution was transferred into clean glass bottles which were sealed and labeled. Thereafter, the Appellant was arrested and FIR No. 36 of 2004 was registered against him for the offences punishable Under Sections 7 and 13(1)(d) read with 13(2) of the PC Act. 12. The learned Special Judge after examining the evidence on record convicted the Appellant vide its judgment dated 14.7.2008 for the offences punishable Under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act and vide order dated 15.7.2008 sentenced him to undergo rigorous imprisonment for two years with fine of ₹ 5,000/- for the offence punishable Under Section 7 of the PC Act and in default to undergo simple imprisonment for two months. For the offence punishable Under Section 13(2) of the PC Act he was further sentenced to undergo rigorous imprisonment for two years with fine of ₹ 5,000/- and in default to undergo simple imprisonment for two months. Both the sentences imposed upon him for the above said offences were to run concurrently. 13. Aggrieved by the decision of the learned Special Judge, the Appellant filed Crl. Appeal No. 634 of 2008 before the High Court of Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation was made by the Appellant from him for release of Krishna Kumar (PW-2) on bail. 17. It was further contended by the learned senior Counsel that the High Court has failed to re-appreciate the evidence on record that Panch witness-Anoop Kumar Verma was directed by the official of Anti Corruption Branch to remain close to the complainant-Jai Bhagwan in order to hear the conversation and see the transaction between the Appellant and the complainant-Jai Bhagwan. He further submitted that the learned Special Judge as well as the High Court have arrived at an erroneous finding without considering the fact that the Appellant after reaching the spot walked with the complainant-Jai Bhagwan for about 15 to 20 steps while conversing with each other. Thereafter, both moved towards water trolley and after taking water proceeded ahead. Around that time the complainant-Jai Bhagwan took out the tainted GC notes from his pocket and gave it to the Appellant. From the said evidence, it is clear that panch witness-Anoop Kumar Verma did not hear the conversation between the Appellant and the complainant-Jai Bhagwan. Therefore, there was no occasion to reach the conclusion that the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memory or a like cause, there is every possibility of the witness veering round to his former statement. Thus, showing faultness of the memory in the case of such a witness would be another object of cross-examining and contradicting him by a party calling the witness. In short, the rule prohibiting a party to put questions in the manner of cross-examination or in a leading form to his own witness is relaxed not because the witness has already forfeited all right to credit but because from his antipathetic altitude or otherwise, the court feels that for doing justice, his evidence will be more fully given, the truth more effectively extricated and his credit more adequately tested by questions put in a more pointed, penetrating and searching way. xx xx xx 51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as proof of demand of ₹ 1000/- as illegal gratification made by the Appellant is concerned, the trial court has rightly recorded the finding of fact holding that the Appellant was caught red-handed accepting the bribe money at the Ditchau Kalan Bus Stand at Najafgarh and this evidence was sufficient enough to show that the complainant-Jai Bhagwan (PW-2) was asked by the Appellant to bring the said amount as illegal gratification for having released Krishan Kumar (PW-9) on bail. 25. We have carefully heard Mr. Sidhartha Luthra, the learned senior Counsel on behalf of Appellant and Mr. P.S. Patwalia, the learned Additional Solicitor General on behalf of Respondent-State. On the basis of factual and legal aspects of the case and evidence on record produced in the case, it is clear that the High Court has recorded the concurrent findings on the charges framed against the Appellant in the impugned judgment and order. It has also failed to re-appreciate the evidence on record properly and consider the law on the relevant aspect of the case. Therefore, the said findings are not only erroneous in law but also suffer from error in law. Hence, the same is liable to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed Krishan had accepted bribe from me in his right hand and kept the same in his pocket and after seeing raiding party. It is further wrong to suggest that I am deposing falsely. The High Court has also erroneously appreciated the same and held thus: 23. ...As regards the demand of bribe of ₹ 1000/- its conscious acceptance by the Appellant, as already noticed, has been proved by PW-6 and fully corroborated by PW-12. 27. Adverting to the evidence of Ranbir Singh, ASI (PW-11) who is the Investigation Officer in the above case registered against Krishan Kumar; in his examination-in-chief before the trial court, he stated as under: ......After getting Sri Kishan medically examined, the accused brought him to PS Nangloi. No surety of Sri Kishan was present in the PS at that time. After about one hour one Jai Bhagwan brother of Sri Kishan came to P.S. Nangloi and presented the bail bond of his brother Sri Krishan. I accepted the bail bond of Sri Kishan at 10.00 pm and gave instruction to the accused to release Sri Kishan. I reported back at P.S. Nangloi at 11.55 pm and made the entry vide DD No. 29/A dated 29.7.2004. I also recorded about the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand and acceptance of bribe by the Appellant which is sine qua non for constituting the alleged offence Under Sections 7 and 13(1)(d) read with 13(2) of the PC Act convicting the Appellant and sentencing him for the period and fine as mentioned above. 29. As far as the evidence of Panch witness-Anoop Kumar Verma (PW-6) is concerned, in his examination-in-chief, he stated thus: ...Thereafter, the complainant and the accused walked for 15-20 steps and had some talk with the complainant and the complainant took out those GC notes from his pocket and gave in the right hand of accused which he kept in the left pocket of his shirt... Anoop Kumar Verma (PW-6) in his examination-in-chief has not deposed as to the exact conversation that took place between the Appellant and the complainant-Jai Bhagwan at the time when he had approached him to give bribe money. He has simply mentioned about some talk had taken place between them but has failed to bring to light the factum of demand of bribe money by the Appellant from the complainant-Jai Bhagwan. Thus, it is amply clear that panch witness-Anoop Kumar Verma did not hear the conversation between the Appellant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements Under Section 161 Code of Criminal Procedure recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused Under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re-examination of the witness if necessary. 17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Code of Criminal Procedure if duly proved clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts intended for contradiction. (Emphasis laid by this Court) Thus, the contradiction of evidence of the complainant-Jai Bhagwan (PW-2) does not prove the factum of demand of bribe by the Appellant from the complainant-Jai Bhagwan as the statement recorded Under Section 161 of Code of Criminal Procedure put to him in his cross-examination was not proved by B.S. Yadav (PW-10) by speaking to those statements in his evidence and therefore, the evidence of PW-2 is not contradicted and proved his Section 161 statement in the case. 32. Further, the Appellant in his examination Under Section 313 of Code of Criminal Procedure, 1973 has, inter alia, stated thus: Q 4: it is in evidence against you that on 28.07.2004 you demanded ₹ 5000/- as bribe from complainant Jai Bhagwan and you accepted ₹ 4000/- as bribe from him and asked the complainant to bring ₹ 1000/- on 30.07.2004 near Dichau Kalan bus stand, Najafgarh. What you have to say? Ans. It is incorrect. XXX XXX XXX Q 14: It is evidence against you that at about 7:00 p.m. you came and you met with complainant and moved towards one water rairi and you demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 22. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence Under Sections 7 as well as 13(1)(d)(i) (ii) of the Act. It has been propounded 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 proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence Under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence Under Section 7 and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted. (Emphasis supplied) 35. The learned Senior Counsel for the Appellant has also placed reliance upon the case of Banarsi Dass referred to supra wherein it was held that: (SCC pp. 456-57, para 24) 24. In M.K. Harshan v. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: (SCC pp. 723-24, para 8) 8. ... It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward ..... X X X X Extracts X X X X X X X X Extracts X X X X
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