TMI Blog2016 (4) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. Absence of proof of demand on 09.12.1997, coupled with PW-2’s evidence that the amount was paid by PW-1 to the appellant towards purchase of diesel raises serious doubts about the amount being paid by PW-1 as illegal gratification. High Court neither considered the defence plea of alibi nor it held that the decision of the trial court was erroneous or perverse. In our view, evaluation of the evidence made by the trial court while recording an order of acquittal does not suffer from any infirmity or illegality or manifest error and the grounds on which the order of acquittal is based cannot be said to be unreasonable. While so, High Court was not justified in interfering with the order of acquittal and the impugned judgment cannot be sustained. In the result, appeal is allowed and the impugned judgment of the High Court is set aside and the order of trial court acquitting the appellant of the charges is restored. The appellant is on bail, his bail bonds stand discharged. - CRIMINAL APPEAL NO. 747 OF 2008 - - - Dated:- 12-4-2016 - Dipak Misra and R. Banumathi, JJ. JUDGMENT This appeal impugns the order dated 05.02.2008 passed by the High Court of Kar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve mentioned. 3. In order to establish the guilt of the accused, prosecution examined twelve witnesses and exhibited documents Ex.P1 to Ex.P34 and marked material objects-M.Os.1 to 18. Appellant-accused was questioned about the incriminating evidence and circumstances under Section 313 Cr.P.C. 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 has produced documents Exs.D1 to D8. Upon consideration of the evidence, the trial court held that the prosecution has failed to prove the demand and acceptance of illegal gratification of ₹ 5,000/- by the accused from PW-1 for issuing No Objection Certificate (NOC) for settlement of his retiral benefits. The trial court also held that in Ex.P31-Sanction Order issued by PW- 8-S.Sampath, Under Secretary to Government, Public Works Department, there is no reference to the documents referred to by the authority for the purpose of granting sanction to prosecute the accused and held that there was no valid sanction to prosecute the accused and thus acquitted the accused of all the charges. 4. Being aggrieved by the order of acquittal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also the judgment of the trial court and the material on record. 8. Before we proceed to consider the evidence adduced by the prosecution regarding proof of demand and acceptance of illegal gratification by the appellant, we may refer to the findings of courts below regarding Ex.P31-sanction order. Sanction Order was obtained from PW-8-S.Sampath, Under Secretary to Government, Public Works Department. Trial court took the view that there was no valid sanction since in the sanction order there was no reference to the authority which took decision to grant sanction to prosecute the appellant also there was no reference to the documents referred to by the authority to satisfy itself about the prima facie case against the appellant while granting sanction to prosecute the appellant. The trial court noted that the prosecution failed to produce any document which could suggest that the powers vested in the competent authority by virtue of Section 19 of the Act was delegated to PW-8 and therefore held that prosecution has not obtained a valid sanction order to prosecute the appellant. 9. Per contra, referring to the evidence of PW-8-Sampath, High Court held that there was a vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sum of ₹ 5,000/- as illegal gratification for sending No Objection Certificate to the office of Accountant General at Bangalore for processing the appellant s pension papers. On the contrary, the appellant has taken the plea of alibi. The appellant contended that on 09.12.1997, when he is alleged to have demanded illegal gratification in his office at Chitradurga, he was actually on official tour in Bangalore from 07.12.1997 to 10.12.1997 for attending a seminar and that after attending the seminar, on 10.12.1997, he along with PW-7 took delivery of a van allotted to Chitradurga PHE, Sub-Division. 12. To appreciate the rival contentions, the evidence of PWs 4 and 5 becomes relevant. PW-4-Mohd. Shaffiulla, First Division Assistant, Well Boring Sub-Division, Public Health Engineering Department, Chitradurga has stated in his cross-examination that as per the contents of attendance register (Ex.P16), the column relating to the attendance of the appellant was blank from 03.12.1997 to 11.12.1997. PW-4 had admitted that about one week prior to the trap on 17.12.1997, a new van was allotted to Chitradurga PHE, Sub- Division and that the appellant and Pampanna-PW-7, Junior Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had made a demand of ₹ 5,000/- from PW-1. The finding of the trial court is borne out by evidence on record and as a reasonable possible view, in our opinion, the High Court ought not have interfered with the findings of the trial court. 15. Let us now consider the claim of PW-1, the purpose for which he is said to have paid the bribe amount. As noticed earlier, PW-1 retired on 31.10.1997 as Special Grade Junior Engineer PHE at Chitradurga. A perusal of Ex.D1 shows that the service register of PW-1 was sent to Borewell Sub-Division at Chitradurga on 22.11.1997. PW-1 has deposed that he submitted an application for leave encashment benefit (Ex.P3) on 04.11.1997 and since PW-1 had not given a covering letter for the same, it could not be processed. On 04.12.1997, PW-1 had given a covering letter for encashment of earned leave. During course of cross-examination, PW-4-Mohd. Shafiulla has admitted that as instructed by the appellant as per Ex.D2 (04.12.1997), on 07.12.1997 PW-4 prepared a detailed note. PW-4 further stated that due to the absence of appellant in the office from 07.12.1997 to 10.12.1997, he could not place the office note (Ex.D2) before the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat while giving the amount to the appellant, PW-1 stated that it is in lieu of amount due for the diesel purchased. PW-2-Obaiah has been declared hostile as he failed to support the prosecution version with regard to payment of money as illegal gratification to the appellant. Evidence of PW-2 thus raises serious doubts about the acceptance of illegal gratification and the prosecution case. 18. It is well settled that the initial burden of 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 the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act. 19. After referring to Surajmal v. State (Delhi Administration) (1979) 4 SCC 725, in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, before the accused is 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. 21. If the evaluation of the evidence and the findings recorded by the trial court does not suffer from any illegality or perversity and the grounds on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible. Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State through Inspector of Police, A.P. v. K. Narasimhachary (2005) 8 SCC 364, this Court reiterated the well settled principle that if two views are possible, the appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and (iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. 23. In the present case, trial court recorded an order of acquittal on the evidence and circumstances:-(i) delay in lodging the complaint; (ii) even though the appellant is alleged to have made the demand on 09.12.1997 at Chitradurga, absence of the appellant in Chitradurga from 07.12.1997 to 10.12.1997 and absence of proof of demand; (iii) doubts raised regarding the submission of the documents Ex. P6 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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