TMI Blog2014 (8) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant against the judgment dated 07.01.2011 and order on sentence dated 08.03.2011 passed in Criminal Appeal No.337 of 1999 by the High Court of Delhi, whereby the High Court reversed the order of acquittal dated 11.03.1999 recorded by the Trial Court in C.C No. 19 of 1993 and convicted the appellant for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act ) with rigorous imprisonment for one year and a fine of ₹ 50,000/-, in default of payment of fine, to further undergo three months simple imprisonment. The appellant has prayed for allowing the appeal by setting aside the impugned judgment of the High Court and to acquit him from the charge urging various facts and grounds in support of the questions of law framed in this appeal. 2. For the purpose of considering the rival legal contentions urged by the learned counsel for the parties and with a view to find out whether this Court is required to interfere with the impugned judgment and order of conviction and sentence of the High Court, the necessary facts are briefly stated hereunder: The complainant, Ramesh Suri (PW-2), was running a busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 7 of the Act. The correctness of the same is challenged in this appeal by the appellant by raising certain legal questions and urging grounds in support of the same. 7. It is contended by Mr. Altaf Ahmed, the learned senior counsel appearing on behalf of the appellant that P.S. Saini on all the occasions demanded the bribe money from the complainant but he was neither arrayed as accused nor examined as witness by the prosecution in the case. Further, he submits that recovery memo Exh. PW-2/D is not proved because neither its author Deputy Superintendent of Police, Darshan Singh was available nor the signatures of the other witnesses on the said memo have been proved. Therefore, recovery of money from the appellant alleged to have been paid to him by the complainant-PW-2 is not proved by the prosecution. It is urged by him that the further lacuna in the prosecution case is that Ram Malhotra, the Brother-in-law of the complainant, who was stated to be present at the time of the telephonic demand made by the accused with the complainant was examined by the prosecution. The prosecution could neither prove the demand and acceptance of the gratification by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d evidence on record and it has recorded a finding of fact holding that the accused is innocent of the charges leveled against him and consequently acquitted him from the said charges. It is further submitted by the learned senior counsel that the Appellate Court could only interfere in rare cases where it is found that the order of acquittal is erroneous or error in law. Therefore, he submits that the High Court should not have interfered with the judgment and order of the Trial Court. The learned senior counsel for the appellant has further placed reliance on the following judgments of this Court, namely, 1) State of Kerala Anr. v. C.P. Rao (2011) 6 SCC 450, 2) Murugesan Ors. v. State through Inspector of Police (2012) 10 SCC 383 in support of his submission that the High Court has exceeded its parameters laid down by this Court in reversing the judgment and order of acquittal of the accused. The relevant paragraphs from the above judgments are extracted in the answering portion of the contentious points. 10. The learned senior counsel further submits that presumption of offence committed by the appellant under Section 20 of the Act can be invoked against him by the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... san 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. 12. The learned senior counsel for the appellant has further contended that mere recovery by itself cannot prove the charge against the accused and placed reliance upon the decision of this Court in C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779. The relevant paragraph is extracted in the reasoning portion. 13. In view of the aforesaid legal contentions urged by the learned senior counsel he has prayed this Court to set aside the impugned judgment and order of the High Court and restore the trial court judgment and order by allowing this appeal. 14. On the other hand, the learned counsel for the respondent Dr. Ashok Dhamija has strongly relied upon the version of PW-3, who is an independent witness and sought to justify the impugned judgment and order as the High Court has rightly reversed the judgment and order of acquittal passed by the Trial Court. It has been urged by the learned counsel for the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant, PW-2 in his testimony has clearly stated that the money was given to the appellant so that no harassment would be caused to him in his business in future. 19. It has been further held by the High Court that the Trial Court has also failed to apply the settled legal principles of law laid down by this Court. The Trial Court has erred in not accepting the testimony of a hostile witness-PW2, his evidence cannot be treated as effaced or washed off the record altogether; part of his evidence which is otherwise acceptable could have been acted upon at the time of recording his findings on the charges. 20. Further, it is urged by him that it has been further held by the High Court that since the illegal gratification is large, the same could not have been accepted by the appellant as cash-in-hand and the same was handed over to him by keeping in bags, suitcases, etc which can never be recovered from the person of an accused. 21. The High Court further held that once demand and acceptance by the accused has been proved then the statutory presumption under Section 20 of the Act arises against him and the onus of proof shifts on him to rebut the presumption by adduci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. observed like this: Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion. 16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis- -vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. 17. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the cross examination of PW-2 by the prosecutor. The relevant portion from translation of deposition of PW-2 made by appellant is extracted hereunder: One P.S.Saini from the customs department asked me to pay ₹ 2 lakhs and at that time the appellant/accused Satvir Singh was checking the goods in the godown. On the same day, at about 4.00 p.m. they took me to Customs House at C.R. Building, and produced me before Shri Sudan, Custom (Suptd.) who checked my papers. Thereafter, I was advised to keep cordial relations with his subordinates. Thereafter, when I came out of the office of the superintendent, the accused Satvir Singh was standing outside the office with P.S. Saini who again demanded money from me. I refused to pay the same. On 7th July, 1989, I received a telephone call from the accused Satvir Singh. At about 5-6 p.m. the accused told me over the telephone, either to make the payment or otherwise they would seize the goods from my premises. The accused further asked me to make the payment at Gagan Vihar residence. The accused asked me to pay ₹ 60,000/- first on 8.7.1989 at 8.00 a.m. as I could not arrange the entire amount. The accused further asked to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/DA dated 15.11.1989 to the Collector of Customs, which reads thus: In this connection, it is submitted that as written earlier Shri Satvir Singh, Inspector has never demanded any money on 4.7.1989 when they visited my premises. As far as telephone of 7.7.1989 is concerned, someone telephoned me in the name of Satvir Singh, but I could not recognize his voice as I have met Satvir Singh only once and that on 4.7.1989. However, when I visited his house on 8.7.1989, Satvir Singh did not demand any money nor accepted the same. This is for your information please. In this regard, the relevant portion of the evidence of Shri AGL Kaul, PW-9, Inspector, CBI, is extracted hereunder: During the course of investigation conducted by him, he came across the letter Exh. PW- 1/DAwhich was already in the investigation file. He further stated that he cannot tell whether or not this letter was referred by the Customs Department to the CBI for verification because the letter was neither received nor seized by him. He recorded the statements of Chamanlal Marwaha and Shri Sharwan Kumar Marwaha during the investigation and after recording their statements under Section 161 Cr.P.C., the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant while the complainant would go to the residence of the accused in order to find out if the accused is available or not. The other members of the raiding party took their positions here and there at a distance. The complainant came back after an hour and asked him to accompany him. They both entered the residence of the accused. The complainant was carrying the bag containing the money. [Extracted from the translation made by the appellant] It is also an undisputed fact that neither Inspector P.S. Saini was arrayed as a witness nor accused by the Investigating Officer. Ram Malhotra, the brother-in-law of the complainant-PW2 who was stated to be present at the time of the telephonic conversation with him was also not examined during the investigation to prove the fact that the appellant had telephonic conversation with him. 31. The learned counsel for the prosecution has also relied upon the case of C.K. Damodaran Nair Vs. Government of India (1997) 9 SCC 477 in support of presumption of offence alleged against the appellant which reads thus: Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. The above-said paragraph from the above mentioned case would go to show that the divergent findings recorded by the High Court on the factum of demand and acceptance of illegal gratification by the appellant is not proved in this case. In the said case this Court in unequivocal terms has held that mere demand by itself is not sufficient to establish the offence under the Act. The other aspect, namely acceptance is also very important. There must be clinching evidence with the tacit approval of the accused that money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded its findings of fact and held that the demand, acceptance and recovery of gratification from the appellant is not proved, therefore there is no presumption under Section 20 of the Act. The learned trial judge in his judgment has rightly held that presumption of innocence is in favour of the appellant and he was acquitted on merits. 35. The evidence of PW-3, who is an independent witness, who had participated in the proceedings of the raid at the appellant s house, the relevant portion of his deposition before the Trial Court is extracted hereunder: The complainant went to the residence of the accused while I remained sitting in the car .Thereafter I along with the accused went inside the house of the accused The accused Satbir Singh inquired from the complainant if he had brought the money. He further enquired about me. Complainant introduced me as his uncle. The complainant told the accused that there was nothing to worry and that his work would be done The accused took the money. The complainant handed over the hand-bag containing the GC notes to the accused. The accused touched ten toes with his right hand and placed that hand bag containing the money on the cot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent s counsel, the relevant portion of which is extracted in the aforesaid portion of the judgment, does not amount to presumption of offence as provided under Section 20 of the Act. Therefore, the question of onus of proof to disprove the presumption did not arise at all on the part of the appellant. 37. The High Court in exercise of its appellate jurisdiction has exceeded its parameters laid down by this Court in reversing the acquittal order of the trial court. Therefore, the findings are not only erroneous in law but also vitiated in law. The relevant paragraphs from the judgment in State of Kerala v. C.P.Rao (supra) are extracted hereunder: 13. In coming to this conclusion, we are reminded of the well-settled principle that when the Court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further reestablished by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduce a positive miscarriage of justice, or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result. (emphasis supplied) Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. (emphasis supplied) 22. Another significant aspect of the law in this regard which has to be noticed is that an appeal to this Court against an order of the High Court affirming or reversing the order of conviction recorded by the trial court is contingent on grant of leave by this Court under Article 136 of the Constitution. However, if an order of acquittal passed by the trial court is to be altered by the High Court to an order of conviction and the accused is to be sentenced to death or to undergo life imprisonment or imprisonment for more than 10 years, leave to appeal to this Court has been dispensed with and Section 379 of the Code of Criminal Procedure, 1973, provides a statutory right of appeal to the accused in such a case. The aforesaid distinction, therefore, has to be kept in mind and due notice must be had of the legislative intent to confer a special status to an appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the statements of PW-2 and C.B.I. officials, the GC notes were not counted. However, it is a matter of serious doubt of acceptance the notes containing in the black rexine bag were touched by the accused. The aforesaid findings and reasons recorded by the High Court are supported with the statements of law laid down by this Court in C.M. Girish Babu (supra) upon which the learned senior counsel on behalf of the appellant has rightly placed reliance. The relevant paragraph is extracted below: 18. In Suraj Mal v. State (Delhi Admn.) this Court took the view 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. 39. After careful observation of the above-mentioned facts and evidence on record and on careful examination of the aforesaid rival legal contentions urged on behalf of the parties, with reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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