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Sec. 7 and Sec. 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 – High court acquitted the accused under sec.7 but convicted under sec.3(1)(d) read with Section 13(2) of the Act – complainant not supported the case of prosecution – no evidence – evidence of I.O. and Ex. P 1 marked complaint can be considered as proof of evidence – mere possession of amount can be considered as demand of bribe – Apex court held that When PW1 Ramesh himself had disowned what he has stated in his initial complaint in Exh.P1 before PW4 Inspector Santosh Kumar and there is no other evidence to prove that the accused had made any demand, the evidence of PW3 Kumaraswamy and the contents of Exh.P1 complaint cannot be relied upon to conclude that the said material furnishes proof of demand allegedly made by the accused. The High Court was not correct in holding the demand alleged to be made by the accused as proved. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 13(1)(d) of the Act and the conviction and sentence imposed on the appellant are liable to be set aside. For the aforesaid reasons the appeal is allowed and the conviction and sentence imposed on the appellant/accused under Section 13(1)(d) read with Section 13(2) of the Act are set aside and he is acquitted of the charges. Bail bond, if any furnished by the appellant, be released.=CRIMINAL APPEAL NO.1578 OF 2011 M.R. Purushotham … Appellant versus State of Karnataka … Respondent = 2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41953

Sec. 7 and Sec. 13(1) (d)  read with  Section  13(2) of the  Prevention  of  Corruption  Act,  1988 – High court acquitted the accused under sec.7 but convicted under sec.3(1)(d)  read with  Section  13(2)  of  the  Act  – complainant not supported the case of prosecution – no evidence – evidence of I.O. and Ex. P 1 marked complaint can be considered as proof of evidence – mere possession of amount can be considered as demand of bribe – Apex court held that When PW1 Ramesh himself had disowned what he  has  stated  in  his  initial complaint in Exh.P1 before PW4 Inspector  Santosh  Kumar  and  there  is  no other evidence to prove that the accused had made any demand,  the  evidence of PW3 Kumaraswamy and the contents of Exh.P1  complaint  cannot  be  relied upon to conclude that the said material furnishes proof of demand  allegedly

made by the accused.  The High Court was not correct in holding  the  demand alleged to be made by the accused as proved.  Mere possession  and  recovery of the currency notes from the accused without  proof  of  demand  will  not bring home the offence under Section 13(1)(d) of the Act and the  conviction and sentence imposed on the appellant are liable to be set aside.

For the aforesaid reasons the appeal is  allowed  and  the  conviction and sentence imposed on the appellant/accused under  Section  13(1)(d)  read with Section 13(2) of the Act are set aside  and  he  is  acquitted  of  the charges.  Bail bond, if any furnished by the appellant, be released.=

The  High  Court  in

the impugned judgment found the appellant/accused not guilty of the  offence

under Section 7 of the  Prevention  of  Corruption  Act,  1988  (hereinafter

referred as “the Act”) but guilty of offences under  Section  13(1)(d)  read

with  Section  13(2)  of  the  Act  and  sentenced  him  to  undergo  simple

imprisonment for one year and to pay a fine  of  Rs.5000/-,  in  default  to

undergo simple imprisonment for a period of three months.=

In this context the recent decision of a three Judge bench  of

this Court in B. Jayaraj  vs.  State of Andhra Pradesh reported  in  2014(4)

Scale 81 is relevant and it is held as follows :

“8. In the present case, the complainant did  not  support  the  prosecution

case in so far as demand by the accused is concerned.  The  prosecution  has

not examined any other witness, present at  the  time  when  the  money  was

allegedly handed over to the accused by the complainant, to prove  that  the

same was pursuant to any demand made by the accused.  When  the  complainant

himself had disowned what he had stated in the  initial  complaint  (Exbt.P-

11) before LW-9, and there is no other evidence to prove  that  the  accused

had made any demand, the evidence of PW-1 and the contents of  Exhibit  P-11

cannot be relied upon to come to the  conclusion  that  the  above  material

furnishes proof of the demand  allegedly  made  by  the  accused.   We  are,

therefore, inclined to hold that the learned trial  court  as  well  as  the

High Court was not correct in holding the demand alleged to be made  by  the

accused as proved.  The only other material available  is  the  recovery  of

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  demand

will not bring home the offence under Section 7.  The  above  also  will  be

conclusive in so  far  as  the  offence  under  Section  13(1)(d)(i)(ii)  is

concerned  as  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 established.”

The above decision is squarely applicable to the facts of the present  case.

When PW1 Ramesh himself had disowned what he  has  stated  in  his  initial

complaint in Exh.P1 before PW4 Inspector  Santosh  Kumar  and  there  is  no

other evidence to prove that the accused had made any demand,  the  evidence

of PW3 Kumaraswamy and the contents of Exh.P1  complaint  cannot  be  relied

upon to conclude that the said material furnishes proof of demand  allegedly

made by the accused.  

The High Court was not correct in holding  the  demand

alleged to be made by the accused as proved.

Mere possession  and  recovery

of the currency notes from the accused without  proof  of  demand  will  not

bring home the offence under Section 13(1)(d) of the Act and the  conviction

and sentence imposed on the appellant are liable to be set aside.

7.    For the aforesaid reasons the appeal is  allowed  and  the  conviction

and sentence imposed on the appellant/accused under  Section  13(1)(d)  read

with Section 13(2) of the Act are set aside  and  he  is  acquitted  of  the

charges.  Bail bond, if any furnished by the appellant, be released.

2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41953

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1578 OF 2011
M.R. Purushotham … Appellant

versus

State of Karnataka … Respondent
J U D G M E N T
C. NAGAPPAN, J.
1. This appeal is directed against the judgment dated 4.1.2011 passed by
the High Court of Karnataka at Bangalore in Criminal Appeal no.1130 of 2007
reversing the judgment of acquittal dated 8.12.2006 in Special Case no.36
of 2001 passed by the Principal Special Judge, Mandya. The High Court in
the impugned judgment found the appellant/accused not guilty of the offence
under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter
referred as “the Act”) but guilty of offences under Section 13(1)(d) read
with Section 13(2) of the Act and sentenced him to undergo simple
imprisonment for one year and to pay a fine of Rs.5000/-, in default to
undergo simple imprisonment for a period of three months.
2. The case of the prosecution in brief is as follows : The
appellant/accused was working as Second Division Surveyor in the office of
Assistant Director of Land Records, Nagamangala and on 18.2.2000 he
demanded an illegal gratification of Rs.500/- from PW1 Ramesh for issuance
of survey sketch pertaining to Survey no.255 of Hullenahalli village and it
is further alleged that though the accused had surveyed the land on the
application of the complainant he was postponing issuance of survey sketch,
to force PW1 Ramesh to pay bribe. PW1 Ramesh lodged Exh.P1 complaint on
18.2.2000 with Lokayukta Police on which a case came to be registered in
Crime no.1/2000 on the file of Mandya Lokayukta Police Station for the
alleged offences under Sections 7, 13(1)(d) read with Section 13(2) of the
Act. A trap was organized and PW2 Sridhar and PW3 Kumaraswamy, Government
servants, were directed to be present as panch witnesses. PW1 Ramesh
produced a sum of Rs.500/- i.e. five currency notes of Rs.100/- each and
the numbers of the said currency notes were recorded in the presence of
panch witnesses and the currency notes got smeared with phenolphthalein
powder. The complainant Ramesh took the powder smeared notes and went
along with PW3 Kumaraswamy to the house of the appellant/accused. PW2
Sridhar and PW4 Inspector Santosh Kumar stood outside the said house. The
accused was watching T.V. inside the room and on seeing them, he asked PW1
Ramesh as to whether he has brought what he had asked and PW1 Ramesh
answered yes and gave the currency notes of Rs.500/- and accused took them
by his right hand and kept the same on his table and directed PW1 Ramesh to
come on Monday for obtaining copy of the Re-Survey. They came out and PW1
Ramesh gave the signal, immediately PW4 Inspector Santosh Kumar along with
PW2 Sridhar went inside the house and in the solution of clean water and
sodium carbonate the right hand fingers of the accused was immersed upon
which it turned into light pink color and on verification the numbers of
the currency notes which were lying on the table were tallied with the
numbers of the notes written in Exh.P2 Mahazar. All the formalities were
completed and after obtaining sanction charge sheet came to be filed
against accused.
3. The Trial Court framed charges under Sections 7, 13(1)(d) read with
Section 13(2) of the Act and the accused pleaded not guilty. The
prosecution examined four witnesses and marked Exh.P1 to P10 and M.Os. 1 to
10. The Trial Court held that the prosecution has failed to prove the
charges against the accused and acquitted him. The State preferred appeal
and the High Court in the impugned judgment held that the prosecution has
failed to prove the offence under Section 7 of the Act and at the same time
it proved the commission of offence under Section 13(1)(d) by the accused
and consequently set aside the judgment of acquittal for said offences and
convicted the appellant/accused for the offence punishable under Section
13(1)(d) read with Section 13(2) of the Act and sentenced him as stated
above. The said judgment is under challenge in this appeal.
4. We heard Ms. Kiran Suri, learned senior counsel appearing for the
appellant and Mr. V.N. Raghupathy, learned counsel appearing for the
respondent State.
5. PW1 Ramesh, the complainant did not support the prosecution case. He
disowned making the complaint in Exh.P1 and stated in his examination-in-
chief that the accused had not demanded anything from him and he did not
know what is written in Exh.P1 and the police have not recorded his
statement in respect to this case. He was, therefore, declared hostile.
However, PW3 Kumaraswamy, panch witness has testified that after being
summoned by PW4 Inspector Santosh Kumar on 18.2.2000, the contents of
Exh.P1 were explained to him in the presence of the complainant and he
accompanied the complainant to the house of the accused, wherein, the
complainant gave the sum of Rs.500/- to the accused as illegal
gratification. It is on the aforesaid basis that the liability of
appellant/accused for commission of the offences alleged was held to be
proved, notwithstanding the fact that in his evidence the complainant PW1
Ramesh had not supported the prosecution case.
6. In such type of cases the prosecution has to prove that there was a
demand and there was acceptance of illegal gratification by the accused.
As already seen the complainant PW1 Ramesh did not support the prosecution
case insofar as demand by the accused is concerned. No other evidence was
adduced by the prosecution to prove the demand made by the accused with the
complainant. In this context the recent decision of a three Judge bench of
this Court in B. Jayaraj vs. State of Andhra Pradesh reported in 2014(4)
Scale 81 is relevant and it is held as follows :
“8. In the present case, the complainant did not support the prosecution
case in so far as demand by the accused is concerned. The prosecution has
not examined any other witness, present at the time when the money was
allegedly handed over to the accused by the complainant, to prove that the
same was pursuant to any demand made by the accused. When the complainant
himself had disowned what he had stated in the initial complaint (Exbt.P-
11) before LW-9, and there is no other evidence to prove that the accused
had made any demand, the evidence of PW-1 and the contents of Exhibit P-11
cannot be relied upon to come to the conclusion that the above material
furnishes proof of the demand allegedly made by the accused. We are,
therefore, inclined to hold that the learned trial court as well as the
High Court was not correct in holding the demand alleged to be made by the
accused as proved. The only other material available is the recovery of
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 demand
will not bring home the offence under Section 7. The above also will be
conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is
concerned as 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 established.”

The above decision is squarely applicable to the facts of the present case.
When PW1 Ramesh himself had disowned what he has stated in his initial
complaint in Exh.P1 before PW4 Inspector Santosh Kumar and there is no
other evidence to prove that the accused had made any demand, the evidence
of PW3 Kumaraswamy and the contents of Exh.P1 complaint cannot be relied
upon to conclude that the said material furnishes proof of demand allegedly
made by the accused. The High Court was not correct in holding the demand
alleged to be made by the accused as proved. Mere possession and recovery
of the currency notes from the accused without proof of demand will not
bring home the offence under Section 13(1)(d) of the Act and the conviction
and sentence imposed on the appellant are liable to be set aside.
7. For the aforesaid reasons the appeal is allowed and the conviction
and sentence imposed on the appellant/accused under Section 13(1)(d) read
with Section 13(2) of the Act are set aside and he is acquitted of the
charges. Bail bond, if any furnished by the appellant, be released.

…….……………………J.
(Madan B. Lokur)
.…………………………J.
(C. Nagappan)

New Delhi;
September 24, 2014

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