Mere Possession or recovery of currency notes is not sufficient for offence u/s 7 of Prevention of Corruption Act: Supreme Court of India

Crl.A.@S.L.P.(Crl.)Nos.4729 320 the file of Special Court for Trial of Prevention of Corruption Act Cases Madurai has filed these appeals aggrieved by the conviction recorded vide judgment dated 28.08.2020 and 22.09.2020 and Crl.A.@S.L.P.(Crl.)Nos.4729 320 read with 13(1)(d) of the Prevention of Corruption Act 1988read with 13(1)(d) of the Act period of March 2003 when PW­2 has approached him on 09 th and 10th of October 2003 such a demand was made as such appellant 10th of October 2003 as a motive or reward to do an official act in exercise of his official function and thereby he has committed the aforesaid offences and he has pleaded not guilty. Therefore he During the trial on prosecution side 12 witnesses were examined i.e Crl.A.@S.L.P.(Crl.)Nos.4729 320 trial court by judgment dated 25.02.2014 acquitted the appellant Criminal Appeal No.6 of 2015 before the Madurai Bench of Madras High Court. The Madurai Bench of Madras High Court by impugned judgment and orders has reversed the acquittal and convicted the appellant for the offences under Section 7 13(2) and conviction recorded and sentence imposed by the impugned judgments and orders passed by the High Court accused is before We have heard Sri S. Nagamuthu learned senior counsel Sri Nagamuthu learned senior counsel appearing for the appellant by taking us to the evidence and other material on record has submitted that the well reasoned judgment of the trial court Crl.A.@S.L.P.(Crl.)Nos.4729 320 Murugesan & Ors. v. State through Inspector of Police 10 court is a “possible view” having regard to evidence on record and even if other view is possible same is no ground to reverse the trial court is a “possible view” and without recording any contra submitted that there is no finding recorded by the High Court a “possible view”. It is submitted that in view of the material contradictions the trial court has disbelieved the testimony of PW­2 3 and 5 by recording valid reasons but the High Court without assigning any reasons has believed these witnesses. It is submitted believed unless it is held that the view taken by the trial court Crl.A.@S.L.P.(Crl.)Nos.4729 320 court. It is also submitted that having regard to reasons recorded findings recorded by the trial court cannot be said to be either testimony of crucial witnesses and without noticing the same the High Court has convicted the appellant and imposed the sentence vide order dated 15.09.2020. However thereafter again the appeal Court on 22.09.2020 and convicted the appellant for the offence imposed the sentence of one year rigorous imprisonment for the offence under Section 7 of the Act. It is submitted that the said judgment of conviction rendered on 22.09.2020 and the order of Criminal Procedure. It is submitted that once the judgment is Crl.A.@S.L.P.(Crl.)Nos.4729 320 under Section 7 of the Act also. Lastly it is submitted that the pronounced after a period of more than six months i.e. on On the other hand Sri M. Yogesh Kanna learned counsel appearing for the respondent­State has submitted that from the evidence of PW­2 3 5 and PW­11 it is clearly proved that on 10.10.2003 the appellant­accused has demanded and accepted PW­2 for the extension of contract. It is submitted that inspite of appellant and same is rightly reversed by the High Court as such there are no grounds to interfere with the same. It is further submitted that in terms of the amended prayer the appellant has questioned only the judgment dated 22.09.2020 and the order imposing sentence on 29.09.2020 as such there is no challenge to the minor contradictions the trial court has acquitted the appellant Crl.A.@S.L.P.(Crl.)Nos.4729 320 as such the view taken by the trial court was not a “possible view” Having heard the learned counsels on both sides we have carefully perused the impugned judgments and the judgment of acquittal rendered by the Special Court and other oral and In these appeals it is to be noticed that PW­2 is the key on contract basis for Ward No.8 of Madurai Municipal Corporation was examined as PW­1 and the complainant Thiru D. Gopal was examined as PW­2. It is evident from the deposition of PW­2 3 5 and 11 that they reached the office of the accused at 05:30 p.m. on office at 05:45 p.m. on his bike and took his seat. PW­2 in his with other witnesses Sri Shanmugavel and Sri Ravi Kumaran Crl.A.@S.L.P.(Crl.)Nos.4729 320 coated currency notes and cell phone which were received by the accused and kept in the left side drawer of the table. The official his deposition that when they reached the office of the accused he met on 09.10.2003 along with PW­5 the appellant­accused has 09.10.2003. It is also clearly deposed by PW­2 in the cross­ examination that he was ill treated by the accused several times earlier as he belonged to scheduled caste community. From his and the PW­2. It is also clear from the evidence after handing over currency and cell phone he along with other witnesses who have accompanied him they came out of the office and signalled to the Crl.A.@S.L.P.(Crl.)Nos.4729 320 is also clear from the evidence that though the trap was at about There is absolutely no evidence to show that why such inordinate that only on demand of anti­corruption officials the accused had taken and produced the money and cell phone which was in the drawer of the table. The Circle Health Inspector of Madurai the office and he has also deposed that he was not aware about Rs.500 ­ and cell phone by whom and when it was kept. He too has deposed in the cross­examination that only on the direction of the 5 is also in similar lines. Another key witness on behalf of the prosecution is PW­11 i.e. the Deputy Superintendent of Police Bodinayakkanur Sub­Division who was working as the Deputy Superintendent of Police Vigilance and Anti­corruption Wing Madurai during the relevant time. He also in his deposition has Crl.A.@S.L.P.(Crl.)Nos.4729 320 Sodium Carbonate Solution at 19:00 hrs. It is clear from the deposition of all the witnesses i.e. PW­2 3 5 and 11 that trap was at 07:00 p.m. Further in the cross­examination PW­11 has clearly stated that when they were monitoring the place of occurrence for of the office of the appellant. Added to the same admittedly after not recorded as required under Rule 47 Clause 1 of the Vigilance TLO has asked the bribe amount and cell phone the accused Crl.A.@S.L.P.(Crl.)Nos.4729 320 Mainly it is contended by Sri Nagamuthu learned senior court is a “possible view” having regard to evidence on record. It is in support of its findings for acquittal. Under Section 378 Cr.PC no regarding the powers of the appellate court while dealing with an “42. From the above decisions in our considered view reappreciate and reconsider the evidence upon Crl.A.@S.L.P.(Crl.)Nos.4729 320 of such power and an appellate court on the Various expressions such as “substantial and compelling reasons” “good and sufficient grounds” “very strong circumstances” “distorted conclusions” “glaring mistakes” etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal Such phraseologies are more in the nature of “flourishes of language” to emphasise the review the evidence and to come to its own An appellate court however must bear in mind that in case of acquittal there is double presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly the accused having secured his acquittal the court should not disturb the finding of acquittal the learned senior counsel for the appellant this Court has Crl.A.@S.L.P.(Crl.)Nos.4729 320 considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment it is not to reverse the acquittal to that of the conviction. The relevant view” distinguishing from “erroneous view” and “wrong view” is discussed are paragraphs 32 to 35 of the judgment which read as the principles of law referred to earlier ought not to Crl.A.@S.L.P.(Crl.)Nos.4729 320 is conscious and not without good reasons. The said expression is in contradistinction to expressions such as “erroneous view” or “wrong view” which at first 33. The expressions “erroneous” “wrong” and “possible” are defined in Oxford English Dictionary in 2) unjust dishonest or immoral possible.—(1) capable of existing happening or 34. It will be necessary for us to emphasise that a formed irrespective of the correctness or otherwise of hierarchical structure may be termed as erroneous or But such a conclusion of the higher court would not the arena of a possible view. The correctness or be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view on the other hand denotes a conclusion fundamental distinction between the two situations Crl.A.@S.L.P.(Crl.)Nos.4729 320 trial court had founded its order of acquittal in the however be disagreement on the correctness of the relatable to the evidence and materials on record are Further in the case of Hakeem Khan & Ors. v. State of Madhya Pradesh 5 SCC 719 this Court has considered powers of the trial court is not agreeable for the High Court even then such not verdict of trial court cannot be interdicted and the High court Crl.A.@S.L.P.(Crl.)Nos.4729 320 of acquittal and that it would not be safe to convict has been stated above was that given the time of 6.30 p.m. to 7.00 p.m. of a winter evening it would be dark and therefore identification of seventeen persons would that the only independent witness turned hostile and examined would certainly create a large hole in the prosecution story. Apart from this the very fact that conclusion that nothing was premeditated and there was in all probability a scuffle that led to injuries on may be right in stating that the trial court went aggressor but the trial court s ultimate conclusion leading to an acquittal is certainly a possible view on distance and arrived by bus after the incident took By applying the above said principles and the evidence on Crl.A.@S.L.P.(Crl.)Nos.4729 320 another view is possible same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence and 11 that the currency and cell phone were taken out from the was not tested by PW­11 till 07:00 p.m. There are material contradictions in the deposition of PW­2 and it is clear from his disbelieved PW­2 3 and 5 by recording several valid and cogent reasons but the High Court without appreciating evidence in proper Crl.A.@S.L.P.(Crl.)Nos.4729 320 perspective has reversed the view taken by the trial court. Further PW­2 3 and 5 can be believed unless it is held that the view taken by has not proved the case beyond reasonable doubt to convict the Babu v. CBI Cochin High Court of Kerala3 SCC 779 and in Act 1988 it is reiterated that to prove the charge it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal Crl.A.@S.L.P.(Crl.)Nos.4729 320 proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal “7. Insofar as the offence under Section 7 is offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused The above position has been succinctly laid down in reference may be made to the decision in C.M Cri) 89] and C.M. Girish Babu v. CBI3 SCC 8. In the present case the complainant did not accused is concerned. The prosecution has not Crl.A.@S.L.P.(Crl.)Nos.4729 320 to any demand made by the accused. When the in the initial complaint before LW 9 and made any demand the evidence of PW 1 and the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of 7. The above also will be conclusive insofar as the 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 9. Insofar as the presumption permissible to be be drawn under Section 20 of the Act that such any official act. Proof of acceptance of illegal Crl.A.@S.L.P.(Crl.)Nos.4729 320 we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant is not proved beyond reasonable doubt. Having regard to such evidence on record the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Crl.A.@S.L.P.(Crl.)Nos.4729 320 judgment and conviction for the offence under Section 7 of the Act has submitted that as per the amended copy of the memo the 29.09.2020 and there is no challenge to the earlier judgment of conviction dated 28.08.2020 and the order of sentence dated 15.09.2020 but at the same time it is to be noticed when the judgment is subsequently rendered on 22.09.2020 for the offence order dated 29.09.2020 the appellant had filed interlocutory application seeking amendment and the same was allowed by this Court. In that view of the matter merely because in the amended memo the appellant has not mentioned about the judgment dated 28.08.2020 and the order dated 15.09.2020 same is no ground to by the learned counsel for the State also are of no assistance in support of his case to sustain the conviction recorded by the High Crl.A.@S.L.P.(Crl.)Nos.4729 320 the impugned judgments of conviction dated 28.08.2020 and 22.09.2020 and orders imposing sentence dated 15.09.2020 and from the custody unless otherwise his custody is required in

Summary: Mere recovery of currency does not prove the charge of corruption against the accused. It has to be proved beyond a reasonable doubt that the accused voluntarily accepted money knowing it to be a bribe. Supreme Court of India gave the judgment in the case of N Vijayakumar vs. State of Tamil Nadu by stating the above-cited reasons. The bench was presided over by Hon’ble Justice Subhash Reddy and Justice M.R Shah. In the instant case, the accused (appellant) worked as Sanitary Inspector in Madurai Municipal Corporation. His supervisor made allegations against the accused that he demanded an amount of Rs 500/- and a cell phone as a motive or reward to do an official act in the exercise of his official function. And therefore, allegations were made against the accused u/s 7, 13(2), and 13(1)(d) of the Prevention of Corruption Act, 1988. For the offences stated above, the accused was tried before the Special Court and was acquitted after examining the oral and documentary evidence. But when the appeal was made in the High Court, the acquittal was reversed and the accused was held convicted for offences u/s 7, 13(2), and 13(1)(d) of the Prevention of Corruption Act, 1988 with imprisonment for 1 year and fine of Rs 5000/-. It was argued that the High Court had reversed the orders of the trial court without recording valid and cogent reasons and the order passed by the High Court was in violation of section 362 of CrPC. On the contrary, the respondent’s counsel argued that the proof was enough to prove that the accused demanded money and a cell phone but the trial court had acquitted the accused without proper investigation and the decision taken by the High Court was right. When the matter reached the Supreme Court, the Bench examined the witnesses and came to the conclusion that there were ill feelings between the appellant and the respondent (Supervisor). It was observed that merely the recovery of tainted money, divorced from the circumstances under which the money was found is not sufficient to convict the accused when the substantive evidence is not reliable. And it was further contended that the material contradictions were observed in the depositions of the witnesses, which gave the benefit of doubt to the accused. The appellant’s counsel contended that in the case of Hakeem Khan vs. State of Madhya Pradesh, the court had considered the powers of an appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it was held that if the “possible view” of the trial court is not agreeable for the High Court, even then such “possible view” recorded by the trial court cannot be interdicted. Hence, the Supreme Court came to the conclusion that mere recovery of the money does not prove the charge against the accused while referring to the judgments in the case of C.M Girish Babu vs. CBI (High court of Kerala) and B.Jayaraja vs. State of Andhra Pradesh. The SC bench stated that while considering the case under the section mentioned above, it is reiterated to prove the charge, it has to prove beyond a reasonable doubt that the accused voluntarily accepted money knowing it to be a bribe. The absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute the offence under the above-mentioned sections.