TMI Blog2012 (5) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... December, 1998 passed by the learned Additional Special Judge, Bhavnagar in Special Case No. 6 of 1994, wherein the learned Additional Special Judge had convicted the appellants for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for brevity `the Act ) and sentenced them to undergo rigorous imprisonment of six months with fine of ₹ 5,000/- each, in default of payment of fine, to suffer simple imprisonment for a period of one month and further convicted them under Section 13(2) of the Act and sentenced them to undergo rigorous imprisonment for a period of one year with a fine of ₹ 5,000/- each, in default, to suffer simple imprisonment for a period of one month with the stipulation that both the sentences would be concurrent. 2. The broad essential facts of the prosecution case are that the complainant, Gajendra Jagatsinh Jadeja, was residing in Plot No. 1 in Virbhadranagar Society. As in the City Survey Office record, the name of his grandfather stood recorded in respect of the premises in question, the complainant in order to obtain the property card and the sketch of the same, went to the office of the City Survey Office, Bhavnaga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and. He counted the money by both hands and put the same in the left side pocket of his shirt. As pre-decided, the signal was given to the raiding party which rushed to the place of the incident. Thereafter, the experiment of U.V. Lamp was carried out on the fingers of both the hands and palms of Trivedi and pocket also and thereon light blue fluorescent marks were found. Panch witness No. 1 took out the currency notes from Trivedi. There were two ten rupee notes and one five rupee note. On those currency notes, light blue fluorescent marks were found with the numbers mentioned on the first part of the panchnama. On being asked about the rest of the money, Trivedi had said that he had given it to Chauhan. Experiment of U.V. Lamp was made on the hands and pockets of Trivedi and Chauhan and light blue fluorescent marks of anthrecene powder was found. The currency notes were tallied with the numbers mentioned on the first part of the panchnama. From both the accused-appellants, currency notes were recovered, marks of anthrecene powder were found and the second part of the panchnama was prepared. The Investigating Officer carried out further investigation, recorded the panchnama and af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely severed the link to rope in the appellants and hence, it was a malafide prosecution. It was also submitted that there were other witnesses in the room but the prosecution chose to examine only the interested witnesses and in essence, the judgment of conviction suffered from perversity of approach and deserved to be axed. 9. The learned counsel for the State urged before the High Court that the emphasis laid on Jagani not being arrayed as an accused was totally inconsequential as he had never made any demand from the complainant. He referred to various documents on record and the testimony of the witnesses that the charges levelled against the accused persons had been proven to the hilt and there was nothing on record which would remotely suggest that they had been falsely implicated. The relationship between the complainant and the ACB officer could not be taken into consideration to come to a conclusion that the complaint was false, malafide and the accused persons had been deliberately roped in. It was canvassed by him that the amount had been recovered from the pocket of Trivedi and the demand had been made by the accused Chauhan to handover the amount of illegal gratifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence and the test carried out go a long way to show that the amount was recovered from the possession of the accused-appellants. It is the settled principle of law that mere recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been demanded or money was paid voluntarily as a bribe. Thus, the only issue that remains to be addressed is whether there was demand of bribe and acceptance of the same. Be it noted, in the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the accused. This has been so stated in T. Subramanian v. The State of Tamil Nadu[AIR 2006 SC 836]. 13. The demand and acceptance of the amount as illegal gratification is the sine qua non for constituting an offence under the Act. It is also settled in law that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than the motive or reward as stipulated under Section 7 of the Act. It is obligatory on the part of the court to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand of illegal gratification, it is the duty of the court to take into consideration the facts and circumstances brought on record in their entirety and for the said purpose, undisputedly, the presumptive evidence as laid down in Section 20 of the Act must also be taken into consideration. 16. In C.M. Girish Babu v. C.B.I., Cochin, High Court of Kerala AIR 2009 SC 2022, after referring to the decisions in M.Narsinga Rao (supra) and Madhukar Bhaskarrao Joshi (supra), this Court has held thus: - 19. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification. 17. In the case at hand, the money was recovered from the pockets of the accused-appellants. A presumption under Section 20 of the Act becomes obligatory. It is a presumption of law and casts an obligation on the court to apply it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. On a perusal of Section 7(1) of the Act, it is perceptible that when an offence is proved under the said section, the public servant shall be punished with imprisonment which shall not be less than six months but which may extend to five years and shall also be liable to fine. Section 13(2) of the Act postulates that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. As is demonstrable from the impugned judgment, the learned trial court has imposed the minimum sentence and the High Court has affirmed the same. 20. The submission of the learned counsel for the appellants, if we correctly understand, in essence, is that power under Article 142 of the Constitution should be invoked. In this context, we may refer with profit to the decision of this Court in Vishweshwaraiah Iron and Steel Ltd. V. Abdul Gani and Ors AIR 1998 SC 1895 wherein it has been held that the constitutional powers under Article 142 of the Constitution cannot, in any way, be controlled by any statutory provision but at the same time, these powers are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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