BEFORE THE HON'BLE MR. JUSTICE v. SRISHANANDA BETWEEN CRL.A.NO
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE V. SRISHANANDA BETWEEN CRL.A.NO.489/2011 M. PERUMAL S/O MUNISWAMY AGED ABOUT 62 YEARS RETD, CHIEF MANAGER (PLANT MAINTENANCE), OVERHAUL DIVISION M/S. HINDUSTAN AERONAUTICS LTD., BANGALORE COMPLEX, BANGALORE R/AT NO 689, III MAIN, OMBR LAYOUT, DODDA BANASAWADI BANGALORE -560 043. (BY SRI P.N.HEGDE, ADVOCATE) AND ...APPELLANT STATE BY CENTRAL BUREAU OF INVESTIGATION ACB, BANGALORE (BY SRI P.PRASANNA KUMAR, ADVOCATE) …RESPONDENT THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 20.04.2011 PASSED BY THE XLVII ADDL. CITY CIVIL AND SESSIONS AND OF SPECIAL IN INVESTIGATION FOR CASES, BANGALORE CENTRAL BUREAU JUDGE 2 SPL.C.C.NO.116/10 THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 7 AND 13(2) R/W 13(1)(d) OF PREVENTION OF CORRUPTION ACT. CONVICTING - THIS APPEAL HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:- CORAM: HON'BLE MR JUSTICE V SRISHANANDA CAV JUDGMENT (PER: HON'BLE MR JUSTICE V SRISHANANDA) Heard the arguments of Sri Parameshwar N. Hegde, learned counsel for the appellant and Sri P. Prasanna Kumar, learned counsel for the respondent. 2. Appellant is the accused who suffered an order of conviction in Special (Corruption) Case No.116/2010, dated 20.04.2011, on the file of XLVII Additional City Civil and Sessions Judge and Special Judge for Central Bureau of Investigation cases, Bengaluru. 3. Facts in brief which are utmost necessary for disposal of the appeal are as under: 3 Appellant was working as Chief Manager (Plant and Maintenance), Overhaul Division, M/s. Hindustan Aeronautics Limited (‘HAL’ for short), Bengaluru Complex, Bengaluru. 4. Complainant was allotted a work with regard to the painting of Mirage Hanger Floor and Ceiling at overhaul Division in M/s. HAL, vide agreement dated 16.10.2009 in a sum of Rs.14,11,494/-. 5. Complainant being the proprietor of M/s. Annapoorneshwari Associates, Bangalore carried out the work and submitted a running accounts remittance bill on 21.12.2009 to the Chief Manager, (Plant and Maintenance), Overhaul Division, M/s HAL for payment. However there was delay in processing the bill and therefore the complainant met the accused and enquired about the pending bill on 30.12.2009 and sought for expediting the payment. 6. At that juncture, accused said to have demanded bribe of Rs.10,000/- for expediting the payment 4 in respect of the pending bill. Complainant being not willing to pay the bribe amount, submitted written complaint to the Central Bureau of Investigation (‘CBI’ for short) against the accused. 7. Based on the complaint, Inspector of CBI., formed a raid team for the intended trap. He secured two independent pancha witnesses and on their arrival to the office of the CBI, the contents of the complaint was read over to the pancha witnesses and demonstrated the chemical reaction of phenolphthalein powder with Sodium Carbonate solution and they took the intended bribe money from the complainant and smeared the phenolphthalein powder and recorded the serial numbers of the currency notes and drafted the experimental mahazar and handed over the tainted currency to the hands of the complainant with a direction to hand over the same to the accused on demand and give a pre-designated signal to the rest of the raid party. 5 8. One of the pancha witnesses namely, Shankar Narayan was directed to act as a shadow witness and he was directed to accompany the complainant and observe the demand and other proceedings while handing over the tainted currency to the hands of the accused. Thereafter, the entire raid party visited to the HAL. Accused was found near machine division, wherein complainant alone went and said to have handed over the tainted currency to the accused and gave a pre-designated signal. 9. Shadow witness did not accompany the complainant and thereafter head of the raid party along with other sub staff and co-pancha arrived on the scene and enquired the accused and seized the tainted currency from the custody of the accused and colour test was conducted which resulted in positive and thereafter arrested the accused, obtained his explanation and produced him before the Special Judge. 10. After thorough investigation a charge sheet came to be filed by the Investigating Officer against the 6 accused for the offence punishable under Section 7, 13 (1) (d) r/w Section 13 (2) of the prevention of Corruption Act. 11. Presence of the accused was secured and after compliance of Section 207 Cr.P.C., charges were framed for the aforesaid offences. Accused pleaded not guilty. Therefore, trial was held. 12. In order to bring home the guilt of the accused, the prosecution in all examined seven witnesses, comprising of complainant, head of the raid party, pancha witnesses as P.Ws.1 to 7 and placed on record as many as twenty documents which were exhibited and marked as Exs.P.1 to P.20, besides marking twenty eight material objects as M.Os.1 to 28. 13. On behalf of the defence, letter dated 19.12.2009 was marked as Ex.D.1 and three more documents exhibited which were marked as Exs.D.2 to D.4. 7 14. Thereafter learned Trial Judge recorded the accused statement under Section 313 Cr.P.C., and subsequent thereto heard the parties and convicted the accused for the aforesaid offences and sentenced accused as under: “ORDER For the offence punishable under section 7 of the Prevention of Corruption Act, I hereby direct the accused to undergo rigorous imprisonment for a period of two years, and pay a fine of Rs.10,000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for a period of six months. For the offence punishable under section 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act, the accused is directed to undergo rigorous imprisonment for a period of one year and pay a fine of Rs.5,000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for a period of three months. Both sentences shall run concurrently. The period of detention, if any, undergone by the accused shall be given set off.” 8
Facts
15. Being aggrieved by the same, accused is in the present appeal before this Court on the following grounds: “1. The order of conviction and sentences passed by the court below is against law, procedure, facts and probabilities of the case. 2. 3. 4. 5. 6. The court below erred in holding that the appellant is guilty of the offence punishable under sections 7, 13(2) r/w 13(1)(d) of prevention of Corruption Act, 1988 and in awarding the sentences as stated supra The court below has erred in believing the uncorroborated prosecution versions witnesses. of The court below has made an apparent error in overlooking the major discrepancies occurred in the evidence of the witnesses, which disprove the prosecution case and against the appellant or at least it doubtful. The learned Trial judge failed to understand the ingredients of Sections for which the appellant has been found guilty and wrongly came to the conclusion that, the evidence brought on record is sufficient to hold that the appellant has committed the offence as stated supra. Case of the prosecution is that, the accused being a public servant working as Chief Manager (Plant Maintenance) Overhaul Division at HAL, Bangalore, on 31/12/2009 demanded and accepted illegal gratification of Rs.10,000/- 9 from PW.1 S.Girish Kumar for showing official favour to him i.e. for passing the pending bill of the the complainant etc. This case of prosecution falsify from the fact that, the alleged date of trap is on 31/12/2009. The work of the accused was already completed, bill along with the measurement book were already sent to the civil department on 28/12/2009 itself for further processing. Hence as on the date of alleged trap, there was no official favour to be shown by this appellant. This important aspect has not at all been considered by the learned trial judge. 7. Demand and acceptance are the main ingredients to be fulfilled in a case like nature. In the case on hand the aforesaid ingredients have not been fulfilled. In the complaint alleged time, place and purpose of demand are not detailed and there is discrepancy in the evidence of prosecution witnesses regarding the prior demand and therefore the Learned Trial Judge ought to have rejected the evidence of the prosecution and acquitted the accused. 8. The documents Ex. D1 to D4 produced by the accused clearly shows that, the complainant is an influential person and by hook or crook he had decided to fix this appellant in the case. Though the accused placed aforesaid materials on record to substantiate his defence, the Hon'ble trial court not extended the benefit of doubting favour of the accused, which resulted in miscarriage of justice 9. The evidence of PW-2 Shankarnarayan, the shadow witness in the case on hand clearly shows that, he did not heard the conversation 10 between the complainant and PW-1. The said fact clearly shows that, the alleged trap did not laid as per the procedure ] 10. It is admitted by PW-1 that, C.B.I took back the money from the accused, then prepared some solution after that, the accused was asked to dip his hand into the said solution and the said solution changed its colour. This test in said to have been conducted accordance with law and procedure. is not 11. The evidence of prosecution is not sufficient to prove the earlier demand and the consequent acceptance of the alleged bribe. The Learned Trial Judge ought to have held that, the prosecution has not placed quality evidence on record to convict the accused and ought to have extended the benefit of doubt in favour of the accused. 12. The Learned Trial Judge ought to have acquitted the appellant/accused since the prosecution has failed to prove the origin of the case, so also the motive. 13. The Hon'ble Trial Court ought to have held that, the prosecution has failed to prove the case beyond reasonable doubts and he ought not to have to convict is apparently erroneous. the appellant, which 14. Valid sanction is condition precedent in a case like nature. In the case on hand there is no proper application of mind by applied by the sanctioning authority in issuing Ex.P14 sanction order, which has been elucidated in the cross examination of PW-6. 11 15. The Hon'ble Trial Court wrongly brushed aside the major contradictions, which are trivial in nature. 16. The sentence imposed is too harsh and re- appreciation of entire evidence is absolutely required to prevent the abuse of process of law. 17. Even otherwise the order of conviction and sentences are illegal, unjust, improper and re- appreciation of entire evidence is absolutely required to prevent the abuse of process of law. 18. The appellant reserves his right to raise all other grounds at the time of hearing of the matter. 19. The sentence imposed is too harsh. 20. The appeal is in time.”
Legal Reasoning
26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam [(2013) 12 SCC 406 : (2014) 1 SCC (Cri) 677] had 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” true 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.
Arguments
16. Sri Parameshwar N. Hegde, learned counsel for the appellant vehemently contended that the judgment of the learned Special Judge runs contrary to the documentary evidence on record and as such, it needs to be set aside. 17. He further pointed out that admittedly the bill came to be submitted by the complainant on 21.12.2009 and the material on record would disclose that the same 12 has reached the table of the appellant. Noticing the fact that the work is not completed in toto as per the work order, the appellant had made an endorsement to release 75% of the bill amount which is much before the alleged trap and as such, there was no work pending with the appellant so as to demand the illegal gratification and alleged trap is a motivated trap and thus, sought for setting aside the impugned judgment. 18. He further pointed out that admittedly, complainant being the son of a union leader of HAL was awarded the contract work of painting and other ancillary work worth Rs.14,11,494/- which has not been carried out by the complainant, an order to meet the target deadline of the tender conditions, had hurriedly submitted the bill and on 21.12.2009 which has been rightly appraised by the appellant and ordered to release 75% of the bill. Therefore, the alleged demand and acceptance is artificial in the case on hand which has not been properly appreciated by the learned Trial Judge while passing the order of conviction and thus sought for dismissal of the 13 appeal. 19. He also pointed out that admission obtained in the cross-examination of complainant who is examined as P.W.1, to the effect that the appellant never demanded bribe for processing earlier bills (20 in numbers) of the complainant to the bill in question and he has not demanded bribe amount from any other contractor is a relevant factor while appreciating the case on hand which has been not considered in proper perspective manner by the learned Trial Judge in the impugned order resulting in miscarriage of justice and sought for allowing the appeal. 20. In support of his arguments he places reliance on the following judgments wherein it has been held as under: “Meena (Smt) W/o Balwant Hemke v. State of I. Maharashtra, (2000) 5 SCC 21, 9. The essential ingredients to be established to indict a person of an offence under Section 5(1)(d) of the Act are that he should have been a public servant; that he should have used corrupt or illegal 14 means or otherwise abused his position as such public servant, and that he should have obtained a valuable thing or pecuniary advantage for himself or any other person. Likewise, Section 161 IPC requires that the person accepting the gratification should be a public servant; that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and the accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration. the bribe, 11. The learned Judge in the High Court seems to have mechanically affixed his approval to the findings recorded by the trial Judge by profusely extracting such findings. Mere recovery of the currency note of Rs 20 denomination, and that too lying on the pad on the table, by itself cannot be held to be proper or sufficient proof of the the peculiar acceptance of circumstances of this case which lend also credence to the case of the appellant that it fell on the table in the process of the appellant pushing it away with her hands when attempted to be thrust into her hands by PW 1. The results of phenolphthalein test, viewed in the context that the appellant could have also come into contact with the currency note when she pushed it away with her hands cannot by itself be considered to be of any relevance to prove that the appellant really accepted the bribe amount. in 15 With such perfunctory nature of materials and the prevaricating type of evidence of PW 1 and PW 3, who seem to have a strong prejudice against the appellant, it would be not only unsafe but dangerous to rest conviction upon their testimony. PW 1, if really was keen on getting the copy of the record urgently, could have made an urgent application to have them delivered within 3 days instead of making an ordinary application and going on such an errand, which makes it even reasonable to assume that the trio of PW 1, PW 3 and Jagdish Bokade were attempting to weave a web around the appellant to somehow get her into trouble and victimise her. P. Satyanarayana Murthy v. District II. Inspector of Police, State of Andhra Pradesh and another, State of Andhra Pradesh and another, (2015) 10 Supreme Court Cases 152 learned counsel 11. The for the respondents sought to distinguish the decision rendered in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] contending that in the face of persuasive evidence of demand on record, the same is of no avail to the appellant. 25. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i) and (ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) and (ii) of the Act, thus, had been to underscore the 16 indispensability of the proof of demand of illegal gratification.
Decision
27. The materials on record when judged on the touchstone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly unsafe to sustain the conviction of the appellant under Sections 13(1)(d)(i) and (ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order [P. Satyanarayana v. State of A.P., Criminal Appeal No. 262 of 2002, order dated 25-4-2008 (AP)] of the High Court is hereby set aside. The is on bail. His bail bond stands appellant discharged. Original sent back record be immediately. 17 III. Krishan Chander v. State of Delhi, (2016) 3 SCC 108 35. It is well-settled 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 same legal principle has been held by Jayaraj [B. this Court Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] , A. Subair [A. Subair v. State of Kerala, (2009) 6 SCC 587 : (2009) 3 SCC (Cri) 85] and P. Satyanarayana Murthy [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] upon which reliance is rightly placed by the learned Senior Counsel on behalf of the appellant. in B. 36. The relevant para 7 from B. Jayaraj case [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] reads thus: (SCC p. 58) “7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said 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 voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] .” 18 (emphasis supplied) 37. In P. Satyanarayana Murthy [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] , it was held by this Court as under: (SCC p. 159, paras 21-23) “21. In State of Kerala v. C.P. Rao [State of Kerala v. C.P. Rao, (2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] , this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in the 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 prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] 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 19 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of it was emphasised, could follow only if there was proof of demand. Axiomatically, it was held that in the absence of proof of demand, legal presumption under Section 20 of the Act would also not arise. illegal gratification, such 23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” (emphasis supplied) IV. Panalal Damoda Rathi v. State of Maharashtra, (1979) 4 SCC 526 8. There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Penal Code, 1860 making the person who offers bribe guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in 20 material particulars connecting the accused with the crime has to be insisted upon. It has to be borne in mind that the marked notes were recovered from the possession of the second accused and not the appellant. It is the case of the prosecution that the marked notes were paid to the second accused for the purpose of being handed over to the appellant. The evidence of the complainant regarding the conversation between him and the accused has been set out earlier. As the entire case of the prosecution depends upon the acceptance of the evidence relating to the conversation between the complainant and the appellant during which the appellant demanded the money and directed payment to the second accused which was accepted by the complainant, we will have to see whether this part of the evidence of complainant has been corroborated. The prosecution relies on the testimony of PW 3, the panch witness, as corroborating the evidence of the complainant on this aspect. It may be reiterated that according to the complainant when he asked the appellant to relieve him from the case and to see that he was given a lesser sentence, the appellant asked him if he had brought the money and the complainant told him that he had and the appellant asked the complainant to pay the money to Dalvi, the second accused, and asked the second accused the complainant. On this aspect the evidence of PW 3 is as follows: the money receive from to “They saw the appellant coming out of the court hall and the complainant informed them that he was the Police Prosecutor. Then there was a talk between the complainant and the appellant in the verandah. The witness was at a distance of 3 to 4 21 feet from them and was in a position to overhear the conversation. According to the witness he heard the appellant asking the complainant ‘Have you come’, the complainant then said ‘Yes’. The witness further heard the appellant saying that he would see that heavy punishment is not inflicted and the case as it is, was difficult. The complainant had then asked the appellant whether his work will be achieved. The appellant assured him in the affirmative. The appellant told the complainant to give what was to be given to the second accused.” State of Punjab v. Madan Mohan Lal V. Verma, (2013) 14 SCC 153 10. It is a settled legal proposition that in exceptional circumstances, the appellate court for compelling reasons should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e. if the conclusions arrived at by the court below are contrary to the evidence on record; or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice; or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence. (Vide Abrar v. State of U.P. [(2011) 2 SCC 750 : (2011) 2 SCC (Cri) 702] , Rukia Begum v. State of Karnataka [(2011) 4 SCC 779 : (2011) 2 SCC (Cri) 488 : AIR 2011 SC 1585] 22
Decision
ORDER Appeal is allowed. Impugned judgment of conviction passed in Special (Corruption) Case No.116/2010, dated 20.04.2011, on the file of XLVII Additional City 81 Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru is hereby set aside. (iii) Bail bond stands discharged. (V. SRISHANANDA) JUDGE Sd/- MR