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TMI Blog2023 (7) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lodged the complaint to the Chamarajanagara Lokayukta Police. 3. It is the further case of the prosecution that on 28.11.2007 at about 5.15 p.m., in Taluk Panchayat Office at Yelandur, PW.2 i.e., the complainant and PW.3, who is the eye-witness (shadow witness) went to the chamber of the accused/appellant to meet him and at that time, the accused/appellant demanded the bribe amount of Rs. 4,500/-and received the alleged amount from PW.2-the complainant in presence of PW.3 and the accused was trapped and money was recovered from his table drawer. As such, the Investigation Officer arrested the accused, the recovery mahazar has been drawn and the tainted money was recovered at the instance of the accused and thereafter, the accused was produced before the Special Court and thereby, remanded to judicial custody. The Investigation Officer, after completion of the investigation, laid the charge sheet against the accused for the alleged offence punishable under Sections 7 and 13(1)d r/w section 13(2) of the Act. Before the Special Court, the Special Judge framed the charge against the accused for the aforesaid offences and read over the same to the accused. However, the accused denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther contend that the complainant-PW.2 totally turned hostile to the prosecution case by disowning the complaint as per Ex.P13. As such, the prosecution failed to prove the demand and acceptance of the illegal gratification by the accused. Learned Senior counsel would contend that mere recovery of tainted money is not sufficient to convict the accused since the prosecution failed to prove the demand of the illegal gratification. He would further contend that it is the settled position of law by the Hon'ble Apex Court in catena of judgments that demand of illegal gratification is sine qua non for establishing offence under the provision of the Act and mere recovery of tainted money is not sufficient to convict the accused. When the substantial evidence in the case is not reliable unless there is an evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe by the accused, then provision under Sections 7 and 13 of the Act does not attract. He would further contend that while invoking the provision of Section 20 of the Act, the Court is required to consider the explanation offered by the accused only on the touchstone of preponderance of probabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the learned Special Judge. The Hon'ble Apex Court in catena of judgments laid down the law that the allegation of demand of gratification and acceptance made by a public servant has to be established beyond reasonable doubt. When the reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of the guilt. Hence, in the absence of proof of demand for illegal gratification, mere possession or recovery of currency notes from the person or in the office of the accused is not sufficient to constitute the offence. Accordingly, learned Senior counsel prays to allow the appeal by setting aside the impugned judgment. 10. Learned Senior counsel, to substantiate his arguments, relied the following judgments: 1. B Jayraj Vs. State of Andhra Pradesh, (2014) 13 SCC 55; 2. P Sathyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh, (2015) 10 SCC 152; 3. V Sejappa Vs. State By Police Inspector Lokayuktha Chitradurga, (2016) 12 SCC 150; 4. N. Vijaykumar Vs. State of Tamil Nadu, (2021) 3 SCC 687; 5. K. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and PW.3-the eye-witness (shadow witness) consistently deposed about demand and acceptance of the bribe/illegal gratification by the appellant. By perusal of the evidence of PW.1, who categorically stated that himself, PW.2-the complainant and PW.3 along with PW.5-the Investigation Officer went to the office of the accused on 28.11.2007 in the evening hours and after the entrustment of panchanama as per Ex.P2, he went inside the office and thereafter, PW.2 gave the bribe amount to the accused and the accused kept the same in the drawer of his table and thereafter, the Police held the hands of the accused and dipped both his hands separately in some solution and the said solution turned into pink colour and the said solution was collected in the bottle and thereafter, the accused was arrested and the accused gave an explanation. However, the same was false. The panch witness i.e., PW.1 categorically identified his signature on mahazar at Ex.P5. PW.3, who is the shadow witness also categorically reiterated the version of PW.1 and moreover, he being eye-witness to the incident clearly stated about the incident that he was watching the incident through window from outside the chamber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of:- i) C.S.Krishnamurthy vs. State of Karnataka (2005) 4 SCC 81; ii) Neeraj Dutta vs. State (Government of NCT of Delhi) (2023) 4 SCC 731; iii) State of H.P. vs. Jail Lal and others (1999) 78 SCC 186; and iv) Hazari Lal vs. State (Delhi Administration) (1980) 2 SCC 390. 15. I have bestowed my anxious consideration on the arguments advanced by both the parties so also the documents available on record i.e., including the trial Court record. 16. Having heard both the counsels and on perusal of the records, the points that would arise for my consideration are:- 1. Whether the judgment under appeal suffers from any perversity or illegality? 2. Whether the Special judge justified in convicting the accused/appellant for the offence 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988? 17. This Court being the Appellate Court, the re-appreciation of the entire evidence is very much required. (i) PW.1-Doreswamachari, who was as SDA in Minor Irrigation Sub-Division, Chamarajanagara and panch witness, deposed that on 28.11.2007, his Assistant Execute Engineer deputed him and CW.3 to go to Lokayukta Office, Chamarajanagara. Accordingly, a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount from the table of the accused and the numbers of the currency notes were compared with the numbers earlier noted and they were tallying. The said note number recorded sheet marked as Ex.P3 and the mahazar was drawn as per Ex.P5. This witness identified his signature on Ex.P5 and also identified the cash marked at MO.9. However, in the cross examination, he stated that he came to know that the documents relating to sanctioning of the loan was in the custody of one Subbappa, who was working in the office of accused. On that day, the said Subbappa was not in the office and he did not know whether at the time of writing the mahazar, Subbappa had given all the documents to the accused. Further, he agreed that he came to know that there was a committee for concerned application for sanction of loan. He further admitted that the powder was smeared to the currency notes by the Lokayukta staff. The said Lokayukta staff, who smeared the powder to the currency notes, washed his hands with some solution. (ii) PW.2-Shivamurthy is the complainant in this case, who lodged the complaint before the Police as per Ex.P13. This witness deposed that he has given application for loan to Dr. Ambe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice by wiping his face. Then Lokayukta Police came inside the office and thereafter, held his both hands and dipped in the sodium carbonate which was prepared by the police and washed both hands of the accused separately. The said wash turned into pink colour and the same was collected in 2 bottles and sealed. This witness also deposed about the recovery of the said bribe amount from the table and also in respect of the explanation given by the accused as per Ex.P4 so also the detailed panchanama as per Ex.P5. He identified his signature on Ex.P5. In the cross examination, this witness admitted that after removing the cash from the accused table drawer, his hands were washed. He also admitted that the date mentioned in trap mahazar as per Ex.P5 was written on 29.11.2007 and it was wrongly written. But the mahazar written on 28.11.2007. He also admitted that after the alleged trap, himself and the Police heard/listened the conversation recorded by PW.2, but the conversation was not so clear. (iv) PW.4-Ningaraju, who is one of the beneficiary of the loan under Self-Employment Scheme i.e., Dr. Ambedkar Development Corporation. However, this witness turned hostile to the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bribe amount from PW.2 and the accused and PW.2 only were discussing inside the office and himself and all others were standing outside the office. Thereafter, the complainant- PW.2 came out of the office and gave signal by wiping his face. Then the Police and himself went inside the office of the accused and when the Inspector enquired complainant-PW.2, he told that the accused was asked the bribe and he has paid the said bribe and after receiving the bribe, the accused kept the said bribe amount in the table drawer. By perusal of this portion of evidence of PW.1, it is clear that the complainant-PW.2 informed PW.1, PW.3 and all other witnesses that the accused demanded the bribe amount and also received the said amount. Hence, as far as the demand and acceptance of the bribe amount is concerned, PW.1 is totally hearsay witness since he was standing outside the office of the accused and the complainant-PW.2 informed him that the accused demanded and received the money. Further, as admitted by this witness in respect of the voice recorder is concerned, though the voice recorder was seized, which was given to PW.1, but PW.3-the shadow witness categorically stated that the voice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... companied to the chamber of the accused. Further, he admitted that the person accompanied along with PW.2 was not asked anything to the accused and he does not know why the another person accompanied PW.2 to the chamber of the accused. This admission of PW.3 absolutely not explained by the prosecution in the evidence of Investigation Officer i.e., PW.5. Further, it is deposed by PW.3 in the cross examination that the Police held the hands of the accused after the accused kept the amount in the drawer of his table and dipped both the hands separately in some solution and the said solution turned into pink. In such circumstances, the hand wash of the accused and the solution turned into pink colour does not point out the guilty of the accused of receiving the bribe for the reason that the hand was done after the amount kept in the drawer of the table. Admittedly, no documents were seized in the office of the accused pertaining to the loan aspect of the complainant. Per contra, it was seized in the head office at Yelandur as stated by PW.5 i.e., Investigation Officer. PW.4, though the beneficiary of the loan amount as that of PW.2, is not supported the prosecution case. Admittedly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act. (iii) In both case f (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (ii) of the Act and also that though the complainant turned hostile or died or is unavailable to let in his evidence during, the prosecution can prove the guilt of the accused by the circumstantial evidence. However, the Hon'ble Apex Court clarified the position of law that in order to bring home the guilt of the accused, the prosecution has to first prove the demand and acceptance of illegal gratification and the subsequent acceptance as a matter of fact. 24. In the case on hand, as discussed supra, 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. 25. The Hon'ble Apex Court in Neeraj Dutta's case (supra) after the law laid down by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of any amount allegedly by way of demand, ipso facto, would not be sufficient to bring home the charges under Sections 7 and 13 of the Act. In the said judgment, the Hon'ble Apex Court by referring the judgment of Sujit Biswas vs. State of Assam (2013) 12 SCC 406 held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of may be but has to upgrade it in the domain of must be true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 27. 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. 28. The Hon'ble Apex Court in the above relied judgment further held that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such circumstances, the defence of accused appears to be quite probable one. As such, as far as the hand wash of accused and the same was turned into pink colour, does not survive for consideration. Hence, the presumption under Section 20 rebutted by the accused in this case as laid down by the Hon'ble Apex in the judgment stated supra. 31. Learned counsel for the respondent, vehemently, contended that the evidence of PW.3 and PW.5 are corroborative and consistent in respect of the demand and acceptance of the bribe by the accused since they both categorically deposed that they went along with PW.5 and PW.2-the complainant and thereafter, PW.2 and the accused both were discussed and at that time, the accused received bribe amount from PW.2 and kept the same in his drawer and subsequently, the Police recovered the same and the mahazar drawn to that effect as per Ex.P5. Hence, though the complainant turned hostile to the prosecution case, by the evidence of PW.1 and PW.3 coupled with the evidence of PW.5, the prosecution proved the case beyond reasonable doubt. 32. But on careful perusal of the evidence of PW.1, PW.3 and PW.5, there are much contradictions and omissions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Babu vs. State of Kerala (2010) 9 SCC 189. 36. The Hon'ble Apex Court in the case of Narendra Singh and another vs. State of Madhya Pradesh (2004) 10 SCC 699 held that the suspicion, however grave may be, held, cannot take the place of proof. There is a long distance between may be and must be . Hence, by considering the above principles laid down by the Hon'ble Apex Court, in the case on hand, the prosecution failed to prove the charges leveled against the accused beyond reasonable doubt for the reason that, PW.2-the complainant himself disowned the contents of the complaint lodged by him so also he failed to depose against the accused in respect of demand and acceptance of the bribe amount. 37. Though the learned counsel for the respondent, vehemently, contended that there is a consistent/verbatim evidence of PW.1 and PW.3, which proved the demand and acceptance of the bribe amount, on careful perusal of their evidence, they being the hearsay witnesses, their version cannot be relied as the gospel truth. 38. The Hon'ble Apex Court in the catena of judgments laid the law that the hearsay evidence cannot be relied solely without their being any corrobora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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