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V. Sejappa Versus The State By Police Inspector Lokayukta, Chitradurga

2016 (4) TMI 1285 - SUPREME COURT

Setting aside the order of acquittal - High Court held the appellant-accused guilty of the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 - establish the guilt of the accused - legality of evaluation of the evidence and the findings recorded by the trial court Held that:- In order to constitute an offence under Section 7 of the Prevention of Corruption Act, ‘proof of demand’ is a sine quo non. - In the present case, trial cou .....

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secution witnesses in establishing the acceptance of the amount by 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 .....

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harges 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 Karnataka at Bangalore in Criminal Appeal No.851 of 2002, allowing the appeal filed by the State, thereby setting aside the order of acquittal passed by the trial court. The High Court held the appellant-accused guilty of the offences punishable u .....

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same Well Boring Sub- Division of Public Health Engineering at Chitradurga. On 16.12.1997, PW-1-complainant made an oral complaint before Police Inspector of Lokayukta, Chitradurga alleging that on 09.12.1997, the accused demanded a sum of ₹ 5,000/- as illegal gratification from him for handing over No Objection Certificate (NOC) to process his pension papers and other retiral benefits. Based on the said complaint, PW-12-Police Inspector of Lokayukta registered FIR in Crime No.6/97 against .....

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the accused is alleged to have demanded ₹ 5,000/- from PW-1 and PW-1 gave tainted currency note of ₹ 5,000/- and the accused received the money and kept it in a diary and the diary was kept inside his table. On receiving signal from PW-1, the raiding party went to the office of the accused and questioned the accused and recovered the amount of ₹ 5,000/- from the accused. The accused also tested positive when his right hand was immersed in the sodium carbonate solution. After o .....

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2.1997, 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 .....

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tion order was obtained by the prosecution to prosecute the accused. The High Court allowed the appeal holding that the prosecution has proved the appellant s demand and acceptance of illegal gratification of ₹ 5,000/- to do an official act in connection with issuance of No Objection Certificate to PW-1 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 sentence .....

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997 on account of his official duty in attending a seminar in Bangalore and that on the evening of 10.12.1997, the appellant alongwith PW-7 had taken delivery of a van allotted to Chitradurga PHE, Sub-Division at Bangalore. It was further contended that the High Court erred in ignoring the testimony of PW-2 who has specifically stated that PW-1 gave a sum of ₹ 5,000/- to the appellant stating that he was returning the money which was taken by PW-1 for purchasing diesel. It was further cont .....

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on of a sum of ₹ 5,000/- by the appellant to perform an official act in connection with the issuance of No Objection Certificate (NOC). 7. We have carefully considered the rival contentions and perused the impugned judgment 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 .....

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rosecute 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 valid sanction and PW-8, Under Secretary was only carrying out the decision of t .....

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uing Ex.P31-sanction order. Considering the evidence of PW-8, in our view, the High Court was right in holding that there was a valid sanction to prosecute the appellant. We concur with the view taken by the High Court. As elaborated infra, as the prosecution failed to establish the demand and acceptance of the illegal gratification by the appellant, we do not propose to delve further on the aspect of sanction . 10. In order to constitute an offence under Section 7 of the Prevention of Corruptio .....

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nd 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.(2010) 15 SCC 1 and C.M. Girish Babu v. CBI (2009) 3 SCC 779. The same view was reiterated in P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152. 11. It is the case of t .....

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ary, 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 relev .....

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ineer had taken the delivery of the van at Bangalore and brought it to Chitraduga. It was stated that Chitradurga is at a distance of about 250 kms. from Bangalore. Though PW-4 has not specifically spoken about the official tour of the appellant, the fact remains that on 10.12.1997, the appellant had taken the delivery of the van allotted to Chitradurga PHE, Sub-Division from Bangalore. 13. PW-5-A.M.Prabhakara who was working as Executive Engineer, Well Boring Division, PHE at Bangalore from 01. .....

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k about the appellant s attendance in a seminar in Bangalore on 09.12.1997. Moreover, PW-7-Pampanna, who was working as a Junior Engineer in the Well Boring Sub-Division at Chitradurga has deposed in his cross-examination that he had accompanied the appellant to attend a seminar on 09.12.1997 at Bangalore. PW-7 further stated that on 10.12.1997, the appellant and he took the delivery of a van allotted to PHE Well Boring Sub-Division, Chitradurga and they left Bangalore around 3.00 p.m. and trave .....

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t he had not met the appellant. However, the appellant has not disputed the fact that in a diary marked as Ex.P19, the appellant has mentioned that on 08.12.1997 he had attended the meeting at division office in Bangalore and that he had taken delivery of a van on 10.12.1997. Upon appreciation of evidence, trial court recorded a finding that the prosecution failed to prove that on 09.12.1997 appellant had made a demand of ₹ 5,000/- from PW-1. The finding of the trial court is borne out by .....

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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 fro .....

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ts of the documents marked as Ex.P3 to P15, it is not possible to hold that PW-1 had submitted declarations for payment of pension and gratuity on 02.12.97. On the other hand a perusal of these documents would give an indication that these documents were brought into existence on 17.12.97... Considering the evidence of PW-4 and documents and circumstances, it appears that the papers for settling the retiral benefits were processed in the normal course. 16. Viewed in the above background coupled .....

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-1, the raiding party and PW-3 entered into the office of the appellant and tainted currency notes were recovered from the appellant. 17. PW-2-Obaiah in his testimony has stated that he was standing near the door of the chamber of the appellant and he saw PW-1-Ramakrishnappa giving a sum of ₹ 5,000/- to the appellant stating that he is returning the amount which he had taken from the accused for purchasing the diesel . PW-2 further stated that PW-3 and Lokayukta police entered the office o .....

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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 .....

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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 SCC 779, it was held as under:- 18. In Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) 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 re .....

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aling with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to following observation in Mukut Bihari and Anr. v. State of Rajasthan (2012) 11 SCC 642, wherein it was held as under:- 11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constitutin .....

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splace 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 as 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 preponderance of probability and not on t .....

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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 acqui .....

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The same view was reiterated in T. Subramanian v. State of T.N. (2006) 1 SCC 401. 22. In Muralidhar alias Gidda and Anr. v. State of Karnataka (2014) 5 SCC 730, this Court noted the principles which are required to be followed by the appellate court in case of appeal against order of acquittal and in paragraph (12) held as under:- 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu AIR 1954 SC 1, Madan Mohan Singh AIR 1954 S .....

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, Bhagwan Singh (2002) 4 SCC 85, Harijana Thirupala (2002) 6 SCC 470, C. Antony (2003) 1 SCC 1, K. Gopalakrishna (2005) 9 SCC 291, Sanjay Thakran (2007) 3 SCC 755 and Chandrappa (2007) 4 SCC 415. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumptio .....

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trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, 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 c .....

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