Full Judgment Text
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CASE NO.:
Appeal (crl.) 471 of 2004
PETITIONER:
Union of India Thr. Inspector, CBI
RESPONDENT:
Purnandu Biswas
DATE OF JUDGMENT: 07/10/2005
BENCH:
S.B. Sinha & R.V. Raveendran
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Union of India is in appeal before us from a judgment and order dated
14.1.2003 passed by a Division Bench of the Madras High Court whereby
and whereunder an appeal from a judgment of conviction and sentence dated
12th April, 1996 passed by the Special Court for Central Bureau of
Investigation in O.P. No. 7 of 1995 was allowed.
The Respondent herein was working as a Surveryor in the Mercantile
Marine Department of Government of India at Tuticorin Port. While on
duty on 15.7.1992, he allegedly demanded a sum of Rs. 50,000/- by way of
illegal gratification from one D.G. Rajan (PW 3) of M/s. Raja Agencies for
giving clearance certificate in respect of the vessel M.V. Lilly. It is not in
dispute that an inspection of the said vessel was made by the Respondent
herein and certain defects were found which having been rectified by the
Master thereof, it was released. It is alleged that the demand of gratification
continued purported to be on the premise that unless the amount was paid,
other vessels of which the said M/s. Raja Agencies was acting as sub-agent
would be detained.
Hunter Shipping and Trading Company was an agent for loading and
unloading the goods carried out from the ships. M/s. Raja Agencies of
Tuticorin was sub-agent of the said company. It is alleged that normally the
ships are anchored in sea upon entering into the harbour. However, for
loading and unloading of the goods, ships are permitted to be berthed at the
place allotted in harbour for two hours only. If goods are not loaded or
unloaded within that period, penalty can be imposed.
The vessel M.V. Lilly came from Bombay. It was brought to VOC 2
berth at 5 p.m. on 13.7.1992. The Respondent by a letter addressed to the
Deputy Conservator asked him not to release the said vessel without his
permission. An inspection of the said vessel was taken and some defects
were found which were intimated to the Master thereof. It is alleged that
PW3 was asked by the Appellant herein to see him at 7.30 p.m. on
15.7.1992. He requested the Respondent to release the ship whereupon he
demanded a sum of Rs. 50,000/- therefor. Allegedly, PW3 asked the
Respondent to reduce the amount and upon refusal on his part so to do,
allegedly he expressed his inability to pay the amount stating that as he is a
sub-agent and he would ask the agent therefor and he would inform him the
next day. PW3 allegedly informed Chandramohan (PW2) on the same night
that the notice had been issued for the defects found in the ship and the ship
was not being permitted to leave the harbour wherefor an amount of Rs.
50,000/- was demanded by the Respondent. PW2 allegedly told PW3 that
the owner of the ship would be informed. On 16.7.1992, PW3 met the
Respondent herein and told that the loading would be completed in the ship
and, thus, the ship may be permitted to leave the harbour. It was further
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alleged that PW3 promised to arrange the money from the main agent or
otherwise another ship "Villa Ali" belonging to their agency anchored
outside the harbour may be retained.
On 16.7.1992, PW2 informed PW3 that the owner of the ship refused
to pay the amount whereupon PW3 suggested that the same may be reported
to CBI. PW2 as per the said suggestion gave a complaint to the
Superintendent of Chennai Central Bureau of Investigation. A trap was
arranged on 17.7.1992. The Superintendent of Chennai Central Bureau of
Investigation having received the said report called the Inspector Ramasamy
(PW8) to register a case whereupon a First Information Report was prepared
and sent to Special Judge of Madurai. A committee was formed under the
control of the Deputy Superintendent Jones, Inspector Vijaykumar, R.S.O.
Raju who came to Tuticorin in a hired taxi bearing registration No. TSE
2828. A room in a hotel known as Sugam International was booked. PW3
was asked by PW8 to meet him in the said room. PW3 issued a cheque for
the company’s account drawn on the Federal Bank of India Branch of
Tuticorin (marked as Ex. P.7) for a sum of Rs. 50,000/- and the same was
withdrawn. Azhagan Muthazhagan (PW7) and Shanmugam (not examined)
were brought as witnesses. In the bundles having currency notes of Rs.
50,000/- upon having been obtained from PW3, Phinopthalene powder was
applied therein. Sodium Carbonate solution was also prepared in a glass
tumbler and PW8 dipped the hands of Shanmugam therein resulting in no
change in the solution. Then the bundles filled in the Phinopthalene powder
were given to Shanmugam whereafter his hands were dipped in the same
solution and the colour thereof changed into light red. This experiment was
explained to all of them. The said powder was thereafter applied on all the
bundles of the currency notes and were kept in a bag brought by PW2. The
serial numbers printed in the currency bundles were also noted. Four-five
visiting cards of PW2 were taken and handed over to PW4 who was asked to
introduce himself as Chandramohan (PW2). They were told to use a signal
specified to them. When PW3 and PW4 went to the house of the accused,
he was found absent. The wife of the Respondent allegedly informed that he
would return after 7 p.m. As the pre-arranged signal of the decoy witness
might not have been feasible in the night, it was changed to lighting of a
cigarette. Vijaykumar and Rajan were waiting at some distance from the
house of the Respondent whereas PW8 and others were waiting 60 ft. away
therefrom. Upon noticing the Respondent entering his house, PW3 and PW4
entered the premises and pressed the door bell.
The Respondent came out and permitted them to come inside. PW3
introduced PW4 as Chandramohan. PW4 allegedly told the Respondent that
he had brought the amount as per request and also gave his visiting card and
requested for his cooperation. PW3 allegedly then brought the bundles of
the currency notes and handed over the same to the Respondent. The
visiting card and the money were taken by him by both hands and the
currency notes were allegedly kept by him in a suit case. Upon noticing the
signal given by PW4, Inspector Vijaykumar and Rajan came inside the
house of the Respondent and introduced themselves. A glass of water was
brought and sodium carbonate solution was prepared. Allegedly when the
right hand was put in the glass, the colour of solution became red and when
the left hand was put, it changed into a light red colour. The Respondent
having been asked by PW8 as to where he had kept the amount, handed over
the suitcase containing the amount. He allegedly compared the number of
notes and seized the same. His house thereafter was searched and a sum of
Rs. 1,65,600/- in cash was seized.
The Respondent was put to trial on the aforementioned allegations.
The learned Special Judge relying on the testimonies of the prosecution
witnesses found him guilty of commission of an offence under Section
13(1)(d) read with Section 13(2) of the Act and imposed a punishment of
rigorous imprisonment for five years and a fine of Rs. 50,000/- in default
whereof he was to undergo a sentence of one year more.
It does not appear to be in dispute that some documents seized from
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the Respondent on 17.7.1992 were kept in a sealed box. An application for
return of the said documents was filed after the arguments were closed and
the judgment was reserved. Although the same could not be exhibited
before the Trial Judge, it appears, the High Court relied thereupon. At this
stage, we may notice that in paragraph 35 of its judgment, the Trial Judge
adversely commented upon the conduct of the Respondent herein stating that
there was no evidence in writing that he had found defects in the ship and
after rectification thereof it was allowed to leave the harbour. A further
comment was made by the learned Judge that if those defects were found the
same should have been mentioned in P6 and P18.
The High Court, however, took notice of the said documents keeping
in view of the fact that the same should have been made a part of the
chargesheet stating:
"But, however, the court cannot completely close
its eyes to the fact that the defects point out by the
accused were noted down by the Master of the
vessel and the defects were rectified and thereafter,
the accused had given no objection certificate for
the sailing of the vessel."
In its judgment, the High Court found the following improbabilities as
regard involvement of the Respondent in commission of the offence:
(i) PW2 nowhere in his complaint disclosed that he had received any
information from PW3.
(ii) PW3 admittedly bore a grudge against the Respondent and he might
have been involved by him in order to wreck vengeance for actions taken
against him
Mr. A. Sharan, learned Additional Solicitor General in support of the
appeal would submit that the High Court committed a manifest error in
rejecting the evidence of PW3 on the ground of enmity, which is irrelevant
in case of this nature as despite the same, his evidence is admissible in
evidence.
Taking us through the evidences of PW3, PW4 and PW8, it was urged
that the explanation of the Respondent to the effect that he had kept the
amount in his hand and wanted to give the same back to PW3 and PW4
cannot be accepted in view of the fact that the money was recovered from a
suit case.
It was urged that in this case the fact that the amount of Rs. 50,000/-
was given to the Respondent is not denied and furthermore the recovery of
the amount also stood accepted, the prosecution must be held to have
established its case. If the Respondent was correct in his statement that he
kept the money in his hands and intended to give the same back to the
witnesses, there is no reason, it was urged, as to why the same would be
found in a suitcase. It was furthermore submitted that the Respondent in
view of the aforementioned admitted position failed to rebut the presumption
in terms of Section 20 of the Act.
Mr. S. Balakrishnan, learned senior counsel appearing on behalf of the
Respondent, on the other hand, would submit that it is a case where over-
jealousness on the part of the PW8 is writ large as the Respondent’s house
was illegally searched. There was no reason, the learned counsel would
contend, as to why a complaint was made at Chennai and not at Tuticorin.
Mr. Balakrishnan would urge that admittedly no demand was made
from PW2. It is also accepted that PW3 bore a grudge against the
Respondent and as such there was every possibility of foisting a false case
against him. As regards the punch witnesses, the learned counsel would
submit that the prosecution has not disclosed as to how their presence was
secured. PW4 who was a bank manager allegedly was contacted through his
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superior whose identity was not disclosed and another punch witness
Shanmugam was not examined at all.
The learned counsel had pointed out the discrepancies in the
statements of PWs-3 and 4 and further submitted that the entire incident,
viz., from entering into the house of Respondent by PWs 3 and 4 till the
signal was given, could not have been completed within a couple of minutes
as stated by the witnesses. It was pointed out that the bag wherein the
money was carried although was directed by PW-8 not to be opened till the
Respondent accepts the amount neither the same was seized nor put to the
chemical test. The learned counsel would contend that PWs \026 3 and 4 did
not take any prior appointment and they just barged into the house of the
Respondent which cannot be accepted. No demand of illegal gratification
by the Respondent at any stage, it was submitted, has been established.
The suit case, although seized and marked as exhibit, was not put to
chemical test. The learned counsel would submit that in view of the fact that
the ship was released on 16.7.1992 itself, the prosecution story must be
disbelieved.
Mr. Balakrishnan would point out that whereas, according to PW-3,
the Respondent received the entire money in both hands, PW-4 alleged that
he accepted the same with his right hand and accepted the visiting card given
by him with his left hand which apparently is improbable. The witnesses,
thus, contradicted themselves in material particulars. The prosecution has
further not disclosed as to how the suitcase was brought at the place where
the witnesses were sitting. Suppression of a vital document by the
prosecution and, particularly, in a case of this nature, it was argued, must be
deprecated by this Court.
Our attention was also drawn to the fact that prior to joining of the
Respondent, the average income of the Board was Rs. 62/- which within a
period of four months was raised to Rs. 47,642/-.
It was further submitted that in a case where two views are possible,
this Court in exercise of its jurisdiction under Article 136 of the Constitution
of India may not interfere with a judgment of acquittal.
The charge framed against the Respondent in terms of Section 211 of
the Code of Criminal Procedure was that while on duty on 15.7.1992, he
demanded a sum of Rs.50,000/- as illegal gratification from PW-3 of M/s
Raja Agencies for giving clearance certificate for the vessel M.V. Lilly and
pursuant to the said demand, he was offered the said amount which he
accepted on 17.7.1992 as a motive or reward for issuing clearance certificate
for the said vessel. No charge was framed against the Respondent that he
continued with his demand despite releasing vessel M.V. Lilly stating that if
the said amount is not paid, he would detain another vessel of which PW3
was the sub-agent. It is not disputed that the Respondent had the authority to
make inspection of the said vessel at the Port of Tutucorin. It is further not
in dispute that when defects in the vessel were pointed out, the master
thereof was required to remove the same. The surveyor is merely
concerned with inspection of the vessel whereupon he may point out certain
defects. Only when such defects are rectified, the vessel is released. All the
materials on records including the documents which were seized on
17.7.1992 disclose that the defects were pointed out to the master of the
vessel M.V. Lilly and the same having been rectified , it was allowed to
leave the harbour on 16.7.1992. The prosecution case, as disclosed by PW-
3, was that on his request the same was done, as he had stated that a sum of
Rs.50,000/- would be paid by him failing which he may retain another vessel
(M.V. Villa Ali) of which he was the agent, was not the subject matter of
charge. It appears that the suggestion was made by PW-3 himself. There
was no demand to that effect by the Respondent . PW-3, further disclosed
that the said vessel was already anchored outside the port. . In the
complaint to the CBI made by PW-2 on 16.7.1992, it is stated that PW-3
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himself suggested on 15.7.1992 that another vessel may be retained by the
Respondent if the aforementioned sum of Rs.50,000/- was not paid.
We have noticed hereinbefore that such charge was not framed.
Furthermore, the harbour master in his deposition stated that MV Villa Ali
was anchored on 16.7.1992 at 1 p.m. and brought inside the harbour on
19.7.1992 at 5.30 p.m. M.V. Villa Ali left the Port on 19.7.1992 at 6.45
p.m. Thus, evidently the statements of PW3 were not correct. A trap was
laid by the CBI on 17.7.1992 i.e. much prior to bringing of the said vessel
M.V. Villa Ali in the harbour on 19.7.1992. Furthermore, having regard to
the fact that the said vessel M.V. Villa Ali was anchored only at 1.p.m. on
16.7.1992, it cannot be believed that PW-3 could have said on the evening of
15.7.1992 or even in the morning of 16.7.1992 that the vessel was already
anchored outside the port.
PW-3 did not say that the accused threatened that he would retain
another vessel of which he was the agent, if the said sum of Rs.50,000/- was
not paid.
It has furthermore not been disputed that whereas average income of
the harbour was only Rs.62/- , after joining of the Respondent herein, within
a period of four months, the income of the Port gone up to Rs.47,642/-. The
fact that PW3 was hostile to the Respondent is not in dispute. In this view of
the matter, the purported demand made by the Respondent cannot be said to
have been established.
It is furthermore not in dispute that PW-3 had been asked by PW-8 to
carry the money in a bag. On a conjoint reading of the deposition of PWs-3,
4 and 8, it would appear that the money was kept in a handbag with a zip in
a room in the hotel. The same was to be delivered by PW-3 only when the
accused would demand the same. PWs-3 and 4 did not say that there any
demand was made by the Respondent at that stage. The evidence brought on
record shows that PW-3 took the handbag with the money inside the house
of the accused and handed over the same, but the same was retained by PW-
3. The said handbag was not seized. PW-3 categorically stated that he kept
the handbag in his car. Why the said handbag was not seized or subjected to
phenolphthalein test is beyond one’s comprehension. PWs-3 and 4
furthermore do not suggest that even any demand was made by the
Respondent when they went inside his house on 17.7.1992 . PW-4 allegedly
told the accused "not to stop the vessel" and that "we will abide by your
conditions", to which the accused replied "yes I will look after everything".
If PW-3 is to be believed, he either on the evening of 15.7.1992 or on the
morning of 16.7.1992 told the Respondent that his demand would be met.
But when such demand would be met was not disclosed. No appointment
was taken from the Respondent. PW-8 in his evidence categorically stated
that when the accused was not found twice in his house, he had entertained a
doubt that the claim of PW-3 that the accused had demanded Rs.50,000/-
may not be true.
In the aforementioned context the prosecution ought to have proved as
to why the handbag was not seized or it and the suit case were not subjected
to the phenolphthalein test. According to PWs-3 and 4, the entire
transaction was over in a couple of minutes whereafter PWs-2 and 8 entered
the room. PWs-3 and PW-4 alleged that there had been some amount of
conversation between them and the Respondent; PW-4 introduced himself as
the agent of the ship, meaning thereby PW-2; and he gave his card.
Thereafter, only the amount was offered, accepted and kept in a suit case. It
is doubtful that within such short time, the entire happenings could take
place. PW-3 says that the accused accepted the amount with both hands
after the bag was opened and sum of Rs. 50,000/- was taken out and given
to the accused, who apart from accepting the same also accepted the visiting
card from PW-4 and put the amount in a suitcase and then closed the same.
It is wholly unlikely having regard to the fact that admittedly PWs-3 and 4
came to the Respondent’s house, he would keep a suitcase ready for keeping
the said amount particularly when PWs - 3 and 4 did not come at an
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appointed time. PW-3 stated that the accused accepted the amount with both
hands, whereas PW-4 states that he accepted the amount in his right hand
and took the card in his left. It appears improbable that a sum of
Rs.50,000/- offered at one go could be accepted by one hand by the
Respondent.
The conduct of PW-8 is also not above board. A complaint was
made for a specific purpose. He did not have any warrant with him to search
the house. He did so to show his over-zealousness. It has also not been
explained by the prosecution as to why the complaint had to be lodged by
PW-2 at Madras. Admittedly, the CBI Court is situated at Madurai. It is
expected that when a demand was made by the Respondent to PW-3, he
would go and lodge a complaint at the nearest place particularly when the
complaint was lodged at his instance. The complaint of PW-2 was not only
entertained. All the officers also came with him in a hired taxi. They stayed
in a hotel. PW-3 evidently had a bank account at Tuticorin. The company
was carrying on a business through its sub-agent. Thus, even he could come
over to Tuticorin and ledge a complaint. He did choose to do so, the reason
wherefor is not explained. The natural conduct of PW-2 would have been to
verify the fact from the Respondent particularly when to his knowledge, the
vessel M.V. Lilly had already been released.
Evidence on record does not disclose in clear terms as to how PW-4
and Shanmugham were contacted. According to PW-2 he was asked by his
officer to comply with the request of the prosecution.
It has not been disputed that PW-3 had been bearing a grudge against
the Respondent. It may be true, as has been submitted by the learned
Additional Solicitor General that previous enmity alone may not be the
ground for rejecting the testimony; but each case has to be considered on its
own merits and no hard and fast rule can be laid down therefor.
In State of U.P. vs. Zakaullah [(1998) 1 SCC 557], whereupon Mr.
Sharan placed reliance, Thomas, J. clearly stated that evidence of such a
witness would require the court to scrutinize it with a greater care, but it
does not call for outright rejection of his evidence at the threshold.
The test laid by this Court in the said decision if applied together with
other circumstances, it would appear that the prosecution story may not be
correct.
In B. Hanumantha Rao vs. State of U.P. [(1993) Supp. 1 SCC 323],
the conviction was based on concurrent findings of fact and appreciation of
evidence. No legal principle was laid down in the said decision except
stating that the circumstances pointed out therein had been considered by the
High Court and the same did not improbablise the demand and acceptance.
It has not been disputed that a material document which was in favour
of the Respondent was not annexed with the charge-sheet. Had the said
document was disclosed by the prosecution, the learned Special Judge would
not have arrived at a finding that had the vessel M.V. Lilly been inspected,
and defects pointed out in the report been rectified, the same would have
been mentioned in the document. Had the said document been brought on
record, the learned Special Judge would not have commented against the
Respondent. The learned Special Judge, thus, committed an error of records.
Such a statement had been made by the prosecution witnesses before PW-8
that the Respondent had inspected the vessel M.V. Lilly and went on
dictating the defects and the master noted them, would by itself a pointer to
show that the said defects were pointed out to the master of the vessel who
had to rectify them before release of the vessel.
This Court in Habeeb Mohammad vs. State of Hyderabad [AIR 1954
SC 51], noted a long series of decisions that "the view taken in India was
that the purpose of a criminal trial is not to support at all costs a theory but to
investigate the offence and to determine the guilt or innocence of the
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accused and the duty of a public prosecutor is to represent not the police but
the Crown, and this duty should be discharged fairly and fearlessly with a
full sense of the responsibility attaching to his position and that he should in
a capital case place before the court the testimony of all the available eye-
witnesses, though they give different accounts, and that the rule is not a
technical one, but found on common sense and humanity".
The learned Additional Solicitor General submitted that onus of proof
was upon the Respondent to explain as to how he came in possession of the
amount. Section 20 the Prevention of Corruption Act, 1988 reads as under:
"20. Presumption where public servant accepts
gratification other than legal remuneration.\027
(1) Where, in any trial of an offence punishable
under section 7 or section 11 or clause (a) or
clause (b) or sub-section (1) of section 13 it is
proved that an accused person has accepted or
obtained or has agreed to accept or attempted to
obtain for himself, or for any other person, any
gratification (other than legal remuneration) or
any valuable thing from any person, it shall be
presumed, unless the contrary is proved, that he
accepted or obtained or agreed to accept or
attempted to obtain that gratification or that
valuable thing, as the case may be, as a motive or
reward such as is mentioned in section 7 or, as the
case may be, without consideration or for a
consideration which he knows to be inadequate.
(2) Where in any trial of an offence
punishable under section 12 or under clause (b) of
section 14, it is proved that any gratification (other
than legal remuneration) or any valuable thing has
been given or offered to be given or attempted to
be given by an accused person, it shall be
presumed, unless the contrary is proved, that he
gave or offered to give or attempted to give that
gratification or that valuable thing, as the case may
be, as a motive or reward such as is mentioned in
section 7, or, as the case may be, without
consideration or for a consideration which he
knows to be inadequate.
(3) Notwithstanding anything contained in
sub-sections (1) and (2), the court may decline to
draw the presumption referred to in either of the
said sub-sections, if the gratification or thing
aforesaid is, in its opinion, so trivial that no
interference of corruption may fairly be drawn."
In this case demand of illegal gratification by the Respondent has not
been proved. Furthermore, Section 20 of the Act is not attracted as the
Respondent had been charged for commission of an offence under Section
13(1)(d) read with Section 13(2) of the Act.
M. Narsinga Rao vs. State of A.P. [(2001) 1 SCC 691], relied upon by
Mr. Sharan, was rendered having regard to the contention raised therein that
it was not enough that some currency notes were handed over to the public
servant to make it as acceptance of gratification; prosecution has a further
duty to prove that what was paid amounted to gratification. Such a question
does not arise for consideration in this case.
Moreover, the High Court has recorded a judgment of acquittal. It
for reasons assigned therein opined :
"Taking into consideration overall aspects of the
case, I am unable to completely disagree with the case of
the accused that the trap was a stage managed affair, for
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the reasons already indicated supra.
We, albeit for other reasons also agree with the conclusion of the High
Court. The Appeal, therefore, being devoid of any merit is dismissed.