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MERE RECOVERY OF TAINTED MONEY IS NOT SUFFICIENT TO CONVICT ACCUSED

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MERE RECOVERY OF TAINTED MONEY IS NOT SUFFICIENT TO CONVICT ACCUSED
By: Mr. M. GOVINDARAJAN
November 15, 2017
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It is well settled that the initial burden proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution.   It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under section 20 of the Prevention of Corruption Act.

In Suraj Mal V. State (Delhi Admn)’ – 1979 (2) TMI 203 - SUPREME COURT the Supreme Court held that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable.  The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

In ‘Mukut Bhihar V. State of Rajasthan’ – 2012 (5) TMI 771 - SUPREME COURT, the Supreme Court held that the law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act.   Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe.  Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than a motive or reward as referred to in Section 7 of the 1988 act.  While invoking the provisions of section 20 of the Act,the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of proof beyond all reasonable doubt.   However, before the accused in called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution.  The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person.

In ‘B. Jayaraj V. State of AP’ – 2014 (3) TMI 1104 - SUPREME COURT the Supreme Court held that insofar as the offence under section 7 is concerned, it is 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.

In ‘V. Sejappa V. State of Police Inspector, Lokayukta, Chitradurga’ – 2016 (4) TMI 1285 - SUPREME COURT one Shri Ramakrishnappa filed oral complaint before the Police Inspector of Lokayukata, Chitradurga alleging that on 09.12.1997, the accused demanded a sum of ₹ 5000 as illegal gratification from him for handing over ‘no objection certificate’ to process his pension papers and other retiral benefits.  The Police Inspector registered FIR against the appellant for the offences punishable under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988.  The complainant and another person on 17.12.1997 went to the office of the accused.  The raiding parties were waiting outside the office.  The complainant and another person gave tainted currency notes of ₹ 5000 and the accused received the money and kept in a diary and the diary was kept inside his table.   On receiving signal from the complainant the raiding party went to the office of the accused and questioned the accused and recovered the amount of ₹ 5000 from the accused.  The accused also tested positive when his right hand was immersed in the sodium carbonate solution.    After getting necessary sanction from the Government and on completion of investigation, a charge sheet was filed against the accused for the offences abovementioned.

The accused denied the demand and pleaded that on 09.12.1997 he was at Bangalore on official duty and a false case was foisted against him.  The accused produced relevant evidences in this regard.  The Trial Court held that the prosecution has failed to prove the demand and acceptance of illegal gratification of ₹ 5000/- by the accused from the complainant for issuing of NOC for settlement of his retiral benefits.  The Trial Court also held that the sanction order is not a valid one to prosecute the accused and thus acquitted the accused of all charges.

Against the order of acquittal the State filed appeal before the High Court.  The High Court allowed the appeal of the State holding that the prosecution has proved the appellant’s demand and acceptance of illegal gratification and held the accused guilty of offences.   The High Court sentenced the accused to undergo imprisonment for six months under section 7 of the Prevention of Corruption act and further sentenced him to under to two years’ imprisonment under section 13(1)(d) read with section 13(2) of the Act and both the sentences were ordered to run concurrently.

Being aggrieved by the judgment of the High Court, the appellant filed appeal before the Supreme Court.  The appellant contended the following before the Supreme Court-

  • There could not have been any demand on bribe on 09.12.1997 and the High Court failed to appreciate the defence plea that the appellant had not attended the office in Chitradurga on 07.12.1997 to 10.12.1997 on account of his official duty in attending a seminar in Bangalore and that on the evening of 10.12.1997, the appellant along with PW7 had taken a delivery of a van allotted to Chitradurga PHE, sub division at Bangalore;
  • The High Court erred in ignoring the testimony of PW2 who has specifically stated that the complainant gave a sum of ₹ 5000 to the appellant stating that he was returning the money which was taken by him for purchase of diesel;
  • The High Court failed to properly appreciate the defence plea in the light of evidence adduced by the prosecution and the High Court was not justified in interfering with the order of acquittal recorded by the trial court;

The State contended that upon appreciation of evidence, the High Court had rightly held that the prosecution has proved its case against the appellant by establishing demand and acceptance of illegal gratification by the appellant to perform an official act in connection with the issuance of NOC.

The Supreme Court considered the rival contentions and perused the judgments of trial court and High Court.  The Supreme Court observed that as per the evidence of PW8, S. Sampath, Under Secretary to Government, PWD, the file regarding the sanction for prosecuting the appellant was submitted to the Secretary, PWD and the same was forwarded to PWD Minister and upon being satisfied PWD Minister granted the sanction.  After that PW8 issued sanction order and thus the PW8 was only carrying out the decision of the Government.  The Supreme Court held that the High Court rightly held that the sanction is a valid one.

In order to constitute an offence under section7 of the 1988 Act, the Supreme Court considered the evidences given by PW4 and PW 5.  PW4 had admitted that about one week prior to the trap on 17.12.1997, a new van was allotted to Chitradurga and that the appellant and PW7 had taken the delivery of the van at Bangalore and brought it to Chitradurga.  Chitradurga is at a distance about 250 kms from Bangalore.    PW5 has stated, in his cross examination that the appellant had come to Bangalore on 08.12.1997 for attending a seminar on 09.12.1997.  He further stated that on 10.12.1997 after taking delivery of the van allotted to Chitradurga the appellant left Bangalore in the evening.  The Supreme Court considered the evidence of PW5 proved that the appellant’s attendance in a seminar in Bangalore on 09.12.1997.  PW7 has stated that he had attended the seminar along with the appellant on 09.12.1997.    He and the appellant took the delivery of a van allotted to Chitradurga and they left Bangalore at around 3.00 pm and travelled in the van and reached Chitradurga at 07.30 pm on 10.12.1997.    The Supreme Court held that the appellant was attending the seminar on 09.12.1997 is highly probalised.

The Supreme Court held that upon appreciation of evidence, the Trial Court recorded a finding that the prosecution failed to prove that on 09.12.1997 the appellant had made a demand of ₹ 5000/- from the complainant.  The finding of the trial court is borne out by evidence on record and as a reasonable possible view, the High Court ought not have interfered with the findings of trial court.    The Supreme Court also considered the evidence of PW4 and documents and circumstances, the papers for settling the retiral benefits were processed in the normal course.    Absence of proof of demand on 09.12.1997 coupled with PW2’s evidence that the amount was paid by the complainant to the appellant towards the purchase of diesel raised serious doubts about the amount being paid by the complainant as illegal gratification.  The High Court neither considered the defence plea of alibi nor it held that the decision of the trial court was erroneous or perverse.  The Supreme Court allowed the appeal and set aside the order of High Court and restored the order of the trial court.  The appellant is on bail, his bail bonds stand discharged.

 

By: Mr. M. GOVINDARAJAN - November 15, 2017

 

 

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