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as the prosecution has failed to prove the demand of illegal gratification made by the appellant from the complainant and acceptance of the bribe money by the appellant. Further, the phenolphthalein test cannot be said to be a conclusive proof against the appellant, as the colour of the solution with regard to the other samples were pink and had remained so throughout. However, the lime solution in which the appellant’s hands were dipped in, did not show the same pink colour. The reason assigned by the Trial Court is that the colour could have faded by the lapse of time. The said explanation of the Trial Court cannot be accepted by us in view of the fact that the colour of the other samples taken by the Investigation Officer after the completion of the trap laid against the appellant had continued to retain the pink colour. Moreover, the sample of the shirt worn by the appellant which was produced before the Trial Court did not show any colour change on the shirt’s pocket section, where the bribe money was allegedly kept by him after the complainant had allegedly given him the bribe money. Thus, on a careful perusal of the entire evidence on record along with the statement of the prosecution witnesses, we have to hold that the prosecution has failed to satisfy us beyond all reasonable doubt that the charge levelled against the appellant is proved.

NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 192 of 2015
(S.L.P (Crl.) No.9835 of 2014)
C. SUKUMARAN ….APPELLANT

VS.

STATE OF KERALA …..RESPONDENT
J U D G M E N T
V.GOPALA GOWDA, J.
Leave granted.

This appeal is filed by the appellant against the impugned judgment and
order dated 22.05.2014 passed by the High Court of Kerala, at Ernakulam in
Criminal Appeal No.108 of 2001, whereby the High Court has partly allowed
the appeal of the appellant and upheld the order of conviction recorded by
the Court of Ld. Enquiry Commissioner and Special Judge,
Thiruvananthapuram, vide its judgment and order dated 30.01.2001 in C.C No.
63 of 1999 and convicted the appellant for the offence punishable under
Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption
Act, 1988 (hereinafter referred to as ‘the Act’) with rigorous imprisonment
for a period of one year and a fine of Rs.10,000/- and in default of
payment of fine, to further undergo six months simple imprisonment.

For the purpose of considering the rival legal contentions urged on behalf
of the parties in this appeal and with a view to find out whether this
Court is required to interfere with the impugned judgment of the High
Court, the necessary facts are briefly stated hereunder:
It is the case of the prosecution that the appellant, who was the
“station writer” at the Fort Police Station, Thiruvananthapuram, demanded a
sum of Rs.1500/- from the complainant PW2, for releasing certain articles
belonging to him, which were taken into custody by the police. PW2 was the
surety to an accused in a criminal case pending before the Judicial First
Class Magistrate-II, Thiruvanathapuram and since the accused in that
particular case had absconded, PW2 was ordered to pay Rs.3000/- as penalty
and a warrant was issued against him in this regard. Therefore, he was
apprehended by the police and his personal belongings, including the
bicycle, wallet, fountain pen, etc. were retained by the police. PW2 was
subsequently released by the Magistrate, wherein he was given further time
to remit the money. It is the case of the prosecution that when PW2
approached the police station on 09.12.1998, to get back his belongings,
the station writer demanded an amount of Rs.1500/- as bribe for returning
the articles which were seized by the police.

PW2 approached PW6, the Deputy Superintendent of Police, Vigilance and Anti-
Corruption Bureau, Special Investigation Unit, Thiruvanathapuram and gave a
First Information Statement, upon which an F.I.R. was registered against
the appellant. Thereafter, a trap was arranged by PW6 and the appellant was
arrested for the offences punishable under Sections 7 and 13(1) (d) of the
Act. The Investigation Officer after completing all the formalities filed
the final report before the Special Judge after framing the charges against
the appellant. Several witnesses were examined and various documents were
produced as evidence by the prosecution in support of the charges against
the appellant.
The learned Special Judge on appreciation of the evidence on record found
that the appellant was guilty of the offences punishable under Sections 7
and 13(1)(d) read with Section 13(2) of the Act and thereby he had
convicted and sentenced him with 3 years of imprisonment each under
Sections 7 and 13(1)(d) of the Act and further ordered that the sentence
must run concurrently. Aggrieved by the judgment and order of the Trial
Court, the appellant had preferred an appeal before the High Court,
questioning the correctness of the same and urging various legal grounds.
The High Court on re-appreciation of the evidence has partly allowed the
appeal of the appellant. The High Court held that the conviction of the
appellant under Section 7 of the Act is not warranted as the essential
element of demand of illegal gratification by the appellant, from the
complainant, is not proved. However, the High Court has held that there is
a strong evidence against the appellant under Section 13(1)(d) of the Act
to show his culpability. The High Court further held that there is
sufficient evidence to prove that PW2 had paid two decoy notes of Rs.100/-
denomination to the appellant and he had voluntarily accepted the money as
bribe from PW2. Hence, the appeal of the appellant was partly allowed and
the conviction of the appellant under Section 7 of the Act was set aside.
However, his conviction under Section 13(1)(d)read with Section 13(2)of the
Act was confirmed and the order of sentence was modified. Aggrieved by the
judgment of conviction and sentence, this appeal has been filed by the
appellant, urging certain legal grounds for setting aside the judgment and
order of conviction and sentence imposed upon him.

It is the contention of the learned counsel on behalf of the appellant
that both in the First Information Statement and in the F.I.R, the name of
the appellant is not mentioned, specifically, in regard to the demand of
the bribe made by him from the complainant PW2. However, it is specifically
mentioned in the complaint that the person who had demanded the bribe was
the “station writer” of the Fort Police Station. It has been further
contended by the learned counsel for the appellant that the appellant has
never been assigned the work of the “station writer” at the police station
and further urged that the prosecution has failed to produce any
documentary evidence to prove the same against the appellant to
substantiate the charge against him.
It is further contended by the learned counsel that the de-facto
complainant had deposed before the Special Judge in this case that one
Ajith, was the “station writer” of the Fort Police Station, who had
demanded the bribe from him for the return of the seized articles to him.
It is further stated that PW4, who is the Sub-Inspector of the Fort Police
Station had deposed that there was an “additional station writer” named
Ajith in the police station, which was not considered by the courts below
while recording the findings of the guilt of the appellant on the charges
framed against him.

It has been further contended by the learned counsel on behalf of the
appellant that as per the complaint, Rs.1500/- was allegedly demanded by
the appellant as bribe money from the complainant. However, the money
allegedly paid and recovered from the appellant was only Rs.200/-. Hence,
there is a huge disparity between the money allegedly demanded and paid to
the appellant by the complainant.

Further, it is contended that there existed several contradictions in the
deposition of the other prosecution witnesses, particularly, PW1 and PW2,
who are the star witnesses of the prosecution case, as they did not
subscribe to the prosecution version of the story at all. It has been
further contended that the prosecution had only examined nine out of the 16
witnesses mentioned in the charge sheet. Further, the conviction and
sentence was imposed for the alleged offence under Section 13(1)(d) read
with Section 13 (2) of the Act by the High Court without considering the
relevant aspect of the case that in the absence of demand of gratification,
the charge under Section 13(1)(d) of the Act is wholly unsustainable in
law.

On the other hand, it has been contended by the learned counsel on behalf
of the respondent that the appellant is the station writer of the Fort
Police Station, a fact which has been stated by the prosecution witnesses
in the case, which has been upheld by both the Trial Court as well as by
the High Court on proper appreciation of the evidence on record.
It has been further contended by the learned counsel that the trap laid
down by the Deputy Superintendent of Police, Vigilance and Anti-Corruption
Bureau, Special Investigation Unit, Thiruvanathapuram, had resulted in the
capturing of the appellant and the phenolphthalein test was conducted then
and there itself. The result of the test was positive for each one of the
Rs.100/- notes. It has been further contended by him that a sample of the
appellant’s shirt was also taken as evidence as he had kept the notes in
his pocket. The test result for the same was also found to be positive.
Further, when the trap was being laid to catch the appellant, PW2 was
specifically told by the officer of the Vigilance and Anti-Corruption
Bureau, Special Investigation Unit to handover the bribe-money to the
appellant only when he would ask for the same. Hence, the appellant would
have received the money only when he would have asked for the same and
therefore, there was demand and acceptance on the part of the appellant.

On the basis of the aforesaid rival legal contentions urged on behalf of
the parties, we have to find out whether the concurrent findings on the
charge under Section 13(1)(d) of the Act, recorded by the High Court
against the appellant is legal and valid and whether the judgment and order
of conviction and sentence under Section 13(2) of the Act, imposed upon the
appellant by the High Court, warrants interference by this Court.

With reference to the abovementioned rival legal contentions urged on
behalf of the parties and the evidence on record, we have examined the
concurrent finding of fact on the charge made against the appellant. It has
been continuously held by this Court in a catena of cases after
interpretation of the provisions of Sections 7 and 13(1)(d) of the Act that
the demand of illegal gratification by the accused is the sine qua non for
constituting an offence under the provisions of the Act. Thus, the burden
to prove the accusation against the appellant for the offence punishable
under Section 13(1)(d) of the Act with regard to the acceptance of illegal
gratification from the complainant PW2, lies on the prosecution.

In the present case, as has been rightly held by the High Court, there is
no demand for the illegal gratification on the part of the appellant under
Section 7 of the Act. Therefore, in our view, the question of acceptance of
illegal gratification from the complainant under the provision of Section
13(1)(d) of the Act also does not arise. The learned Special Judge has come
to the erroneous conclusion that the appellant had received the money and
therefore he had recorded the finding that there was demand and acceptance
of the bribe money on the part of the appellant and convicted and sentenced
the appellant. However, the High Court on re-appreciation of evidence on
record has held that the demand alleged to have been made by the appellant
from the complainant PW2, was not proved and that part of the conviction
and sentence was rightly set aside in the impugned judgment. However, the
High Court has erroneously affirmed the conviction for the alleged offence
under Section 13(1)(d) read with Section 13(2) of the Act, although as per
law, demand by the appellant under Section 7 of the Act, should have been
proved to sustain the charge under Section 13(1)(d) of the Act.

Further, the fact that out of Rs.1500/- that was allegedly demanded as
bribe money from the complainant, an amount of only Rs.250/- was paid by
him, out of which the appellant allegedly managed to return Rs.50/- to the
complainant, since he had no money left, makes us pause and ponder over the
facts and circumstances of the case and casts a serious shadow of doubt on
the sequence of events as narrated by the prosecution.

Further, none of the prosecution witnesses have actually deposed in the
case that the appellant was the person who had demanded and accepted the
bribe from the complainant and since PW2 has materially turned hostile,
therefore, neither the demand aspect nor the acceptance of the bribe money
can be verified from any other witnesses of the prosecution. Further, PW1
in his deposition before the Special Judge has also not supported the case
of the prosecution, as he had refused to acknowledge the ownership of the
tea shop, on the premises of which the bribe money was allegedly accepted
by the appellant from the complainant. Hence, it is safe to say that the
prosecution has failed to prove beyond any reasonable doubt that the
appellant had accepted the illegal gratification from the complainant under
Section 13(1)(d) of the Act. In support of the same, the learned counsel on
behalf of the appellant has rightly placed reliance upon the decision of
this Court in B. Jayaraj v. State of A.P.[1], which reads thus:-
“8. ……there is no other evidence to prove that the accused had made any
demand, the evidence of PW 1 and the contents of Ext. 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 insofar as the offence under
Sections 13(1)(d)(i) and (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”
(emphasis laid by this Court)

Now, coming to the legality of the conviction of the appellant under
Section 13(2) of the Act by the High Court in its judgment, the same cannot
be allowed to sustain in law, as the prosecution has failed to prove the
demand of illegal gratification made by the appellant from the complainant
and acceptance of the bribe money by the appellant. Further, the
phenolphthalein test cannot be said to be a conclusive proof against the
appellant, as the colour of the solution with regard to the other samples
were pink and had remained so throughout. However, the lime solution in
which the appellant’s hands were dipped in, did not show the same pink
colour. The reason assigned by the Trial Court is that the colour could
have faded by the lapse of time. The said explanation of the Trial Court
cannot be accepted by us in view of the fact that the colour of the other
samples taken by the Investigation Officer after the completion of the trap
laid against the appellant had continued to retain the pink colour.
Moreover, the sample of the shirt worn by the appellant which was produced
before the Trial Court did not show any colour change on the shirt’s pocket
section, where the bribe money was allegedly kept by him after the
complainant had allegedly given him the bribe money.
Thus, on a careful perusal of the entire evidence on record along with the
statement of the prosecution witnesses, we have to hold that the
prosecution has failed to satisfy us beyond all reasonable doubt that the
charge levelled against the appellant is proved.
The decision of this Court referred to supra upon which the learned
counsel for the appellant has rightly placed reliance upon and the ratio
laid down in the above case, aptly applies to the fact situation on hand
and therefore, we have to grant the relief to the appellant by allowing
this appeal.
For the aforesaid reasons, the appeal is allowed. Since, the charge
against the appellant is not proved, the conviction and sentence imposed
upon the accused-appellant by the High Court under Section 13(1)(d) read
with Section 13(2) of the Act is set aside. The jail authorities are
directed to release the appellant forthwith, if he is not required to be
detained in any other case.
……………………………………………………………J.

[V. GOPALA GOWDA]

…………………………………………………………J.
[R. BANUMATHI]
New Delhi,
January 29, 2015
———————–
[1] (2014) 13 SCC 55

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