Full Judgment Text
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 377 OF 2009
(Arising out of SLP(Crl) No.578 of 2008)
C.M. Girish Babu …Appellant
Versus
CBI, Cochin, High Court of Kerala …Respondent
J U D G M E N T
B.SUDERSHAN REDDY,J.
Leave granted.
2. The appellant along with Accused No.1 was tried for
offences under Section 120B of IPC read with Section 7 and
13 (2) read with 13(1) (d) of Prevention of Corruption Act,
1988 (hereinafter referred to as “the said Act”) by Special
th
Judge (SPE/CBI)-I, Ernakulam who by his judgment dated 30
March, 2002 convicted the appellant for the offence punishable
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under Section 7 read with Section 13(1) (d) and 13(2) of the
said Act. He was acquitted of the charge under Section 120B
of the IPC. The appellant was accordingly sentenced to
undergo rigorous imprisonment for three years and to pay a
fine of Rs.20,000. In default for payment of fine the appellant
was further ordered to undergo rigorous imprisonment for a
further period of six months for the offence punishable under
Section 13(1) read with Section 13(2) of the said Act. He was
also sentenced to undergo rigorous imprisonment for two
years for the offence punishable under Section 7 of the said
Act. The substantive sentences were directed to run
concurrently.
3. The appellant preferred an appeal to the Kerala High
Court at Ernakulam, which dismissed the appeal by its
th
judgment dated 28 November, 2007. However, the Appellate
Court reduced the substantive sentence to that of one year
only. The High Court acquitted the first accused of all the
charges against which State preferred no appeal. This appeal
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is brought, by special leave against the judgment of the High
Court.
4. The prosecution case is that while accused no.1 working
as the Inspector of Central Excise, Air Cargo Complex,
Trivandrum, demanded an amount of Rs.1,500/- as
gratification from one Dayanandhan-PW10 and Prakash
Kumar-PW2, who were the Senior Assistant and Manager
respectively of M/s. Interfrieght Services Pvt. Ltd., Trivandrum
as a motive or reward for giving clearance for a wet grinder
booked by one P. S. Shine to be sent to Dubai.
5. The appellant was also working as Inspector of Central
Excise, Air Cargo Complex, Trivandrum along with Accused no.
nd
1. On 2 October, 1999 at about 6 a.m. the appellant is stated
to have actually demanded the amount of Rs.1,500/- from
Dayanandhan-PW10 as gratification for clearing the same wet
grinder and accepted the bribe amount for himself and on
behalf of accused no.1 and thereby committed offences under
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Section 7 read with Section 13(1) (d) and 13(2) of the said
Act.
6. The prosecution story as unfolded during the trial is that
the appellant and Accused no. 1 together conspired and
committed the act of demanding and accepting gratification.
7. In the present case, it may not be really necessary to
discuss the entire evidence available on record for the simple
reason that the High Court acquitted the Accused no. 1 of all
the charges and found no case against him. It is the Accused
no. 1 who is stated to have demanded the gratification for
clearing and sending wet grinder to Dubai. The High Court as
well as the trial court found that there was no criminal
conspiracy between the appellant and accused no. 1 and
therefore acquitted both of them of the charge under Section
120B of the IPC.
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8. The High Court upon re-appreciation of evidence came to
the conclusion that the prosecution miserably failed to prove
the charge against the appellant for the offence under Section
13 (1) (d) read with Section 13 (2) of the said Act. In this
regard, the High Court found that there is nothing in the
evidence of PW-11 – Natarajan, official witness, to arrive at
any conclusion of appellant making any demand of
gratification. PW-11 stated that from the conversation
between the appellant and PW-10, he could heard the
appellant asking “is it ready?” and PW-10 only nodding his
head. It is for that reason the High Court recorded that the
alleged demand by the appellant on 2.10.1999 is highly
doubtful and is not proved beyond reasonable doubt. The High
Court relied upon yet another circumstance creating a doubt as
regards the demand of any gratification by the appellant as
there is no mention of any such demand in Exhibit P-9 - post
trap mahazar. The High Court accordingly acquitted the
appellant of charges under Section 13(1)(d) read with Section
13(2) of the said Act.
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9. The prosecution story mainly rested upon the evidence of
PW-10 who is the central figure in the entire story of the
prosecution. He did not support the prosecution story and was
declared hostile. It was to him that the Accused No.1 had
allegedly made a demand of gratification on the morning of
1.10.99 and it was in his presence Accused No.1 repeated the
demand when he went along with PW-2 in the evening of
1.10.99 to the Air Cargo office. This is the version given by
PW-2. But PW-10 does not support this story. PW-10 in his
evidence stated that on 1.10.99 Accused No.1 in the morning
hours suggested certain corrections in the documents as
regards the valuation and description of the item that was to
be sent to Dubai. When PW-10 went back to office and told
PW-2, PW-2 said that no correction need be made. Thereafter
both of them visited Air Cargo Complex. It is in the evidence
of PW-10 that he alone went inside the room to meet Accused
no. 1 and told him that no corrections possibly could be made
as PW-2 was not interested in making the suggested
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corrections. But Accused no. 1 insisted for carrying out
corrections if the item was to be cleared for its despatch to
Dubai. Then PW-10 requested the Accused no. 1 to meet PW-2
but Accused no. 1 retorted saying that whoever he may be, he
will not meet him.
10. Be it noted that PW-2 thereafter never visited Air
Cargo Complex till he came with the trap party early in the
morning on 2.10.1999. PW-2 in his evidence stated that on
2.10.99 PW-10-Dayanadhan came to office at 4.30 a.m. and
informed him that he went to the Air Cargo office and found
that Accused no. 1 was not on duty and the appellant was on
duty. According to PW-2, PW-10 informed him that on inquiry
about the cargo the appellant told him that Accused no. 1 has
already apprised him about the cargo and accordingly it would
be cleared only if Rs.1500/- is brought. PW2 stated in his
evidence that he immediately wrote Exh.P2-complaint. He
clearly admitted in his evidence that he had no personal
knowledge as to what transpired between PW-10 and the
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appellant at the Air Cargo Office. The evidence of PW-2 about
the demand of bribe amount by the appellant is hear say and
therefore inadmissible.
11. Interestingly enough, PW-10 does not support the
story narrated by PW-2. According to him when he went to
nd
the Air Cargo Complex on 2 October, PW-2 and another
person who came to send the wet grinder was with him and
PW-2 asked him to give Rs.1500/- to the appellant saying that
it was a loan repayable by PW-2 to Accused no.1. He
accordingly collected the money from PW-2 and gave it to the
appellant. He in categorical terms accepted that the appellant
had never demanded any bribe amount from him. The
evidence of PW-10 also suggests that PW-2 was near the
import Hall at a distance of about 40 metres between the Air
Maldives Godown and import Hall.
12. An analysis of the evidence of PW-2, PW-10 and PW-
11 the official witness reveals the following:
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a) The prosecution miserably failed to establish the
theory of criminal conspiracy hatched by the appellant
along with Accused no. 1 to demand and receive
gratification;
b) The prosecution miserably failed to establish its theory
that there was a demand of gratification by Accused
no.1 on 1.10.99;
c) There is no proof on any demand of gratification by the
appellant on 2.10.99;
d) The evidence of PW-11, the official witness, Assistant
Manager, Vigilance of FCI to the effect all that he heard
was appellant asking PW-10 “is it ready?” to which PW-
10 nodded his head. This evidence of the official
witness present at the time of trap does not establish
that there was any demand of gratification by the
appellant. There is no reason to disbelieve the evidence
of PW-11;
e) Exhibit P-9 post trap mahazar does not record the
factum of any demand of gratification by the appellant.
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13. The evidence on record suggests that PW10 had
given money to the appellant stating that it was a loan
repayable by PW2 to accused no.1. The appellant was lulled
into that belief based on which he received the amount from
PW-10.
14. The fact remains that the prosecution established
through evidence of PW-12 and PW-13 and Exhibit P9-post
trap mahazar that MO IV series tainted currency notes were
recovered from the pocket of the appellant. A question then
arises for consideration is that whether the recovery of the
tainted money itself is sufficient to convict the appellant under
Section 7 of the said Act?
15. The crucial question would be whether the appellant
had demanded any amount as gratification to show any
official favour and whether the said amount was paid by PW-10
and received by the appellant as consideration for showing
such official favour. The only evidence available in this regard
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is that of PW-10 who did not support the case of the
prosecution. The appellant at the earliest point of time
explained that it was not the bribe amount received by him but
the same was given to him by PW-10, saying that it was
towards repayment of loan taken by his Manager-PW2 from
the Accused no.1. This is evident from the suggestion put to
PW-2 even before PW-10 was examined. Similar suggestion
was put to the investigating officer that he had not recorded
the version given by the appellant correctly in the post trap
mahazar-Exhibit-P9 and no proper opportunity was given to
explain the sequence of events.
16. In Suraj Mal Vs. State (Delhi Admn.) reported in
[(1979) 4 SCC 725], 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
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evidence to prove payment of bribe or to show the accused
voluntarily accepted the money knowing it to be bribe.
17. The learned counsel for the CBI submitted that the
onus of proof was upon the appellant to explain as to how he
came into possession of the amount recovered from him
during the trap. The argument of the learned counsel is
obviously based on Section 20 of the Prevention of Corruption
Act, 1988 which reads as under:
“20. Presumption where public servant
accepts gratification other than legal
remuneration.- (1) Where, in any trial of an
offence punishable under Section 7 of
Section 11 or clause (a) or clause (b) of 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.
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(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) (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.”
18. A three-Judge Bench in M. Narsinga Rao Vs.
State of A.P. (2001) 1 SCC 691 while dealing with the
contention that it is not enough that some currency notes were
handed over to the public servant to make it acceptance of
gratification and prosecution has a further duty to prove that
what was paid amounted to gratification, observed :
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“……………………we think it is not necessary to deal
with the matter in detail because in a recent
decision rendered by us the said aspect has been
dealt with at length. ( Vide Madhukar Bhaskarrao
Joshi v. State of Maharashtra.) The following
statement made by us in the said decision would be
the answer to the aforesaid contention raised by
the learned counsel: (SCC p.577, para 12)
The premise to be established on the facts for
drawing the presumption is that there was payment
or acceptance of gratification. Once the said
premise is established the inference to be drawn is
that the said gratification was accepted ‘as motive
or reward’ for doing or forbearing to do any official
act. So the word ‘gratification’ need not be
stretched to mean reward because reward is the
outcome of the presumption which the court has to
draw on the factual premise that there was
payment of gratification. This will again be fortified
by looking at the collocation of two expressions
adjacent to each other like ‘gratification or any
valuable thing’. If acceptance of any valuable thing
can help to draw the presumption that it was
accepted as motive or reward for doing or
forbearing to do an official act, the word
‘gratification’ must be treated in the context to
mean any payment for giving satisfaction to the
public servant who received it.”
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
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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.
20. It is equally well settled that the burden of proof
placed upon the accused person against whom the
presumption is made under Section 20 of the Act is not akin to
that of burden placed on the prosecution to prove the case
beyond a reasonable doubt. “It is well established that where
the burden of an issue lies upon the accused he is not required
to discharge that burden by leading evidence of proof his case
beyond a reasonable doubt. That is, of course, the test
prescribed in deciding whether the prosecution has discharged
its onus to prove the guilt of the accused; but the same test
cannot be applied to an accused person who seeks to
discharge the burden placed upon him under Section 4 under
the Prevention of Corruption Act. It is sufficient if the accused
person succeeds in proving a preponderance of probability in
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favour of his case. It is not necessary for the accused person
to prove his case beyond a reasonable doubt or in default to
incur verdict of guilt. The onus of proof lying upon the accused
person is to prove his case by a preponderance of probability.
As soon as he succeeds in doing so, the burden shifts to
prosecution which still has to discharge its original onus that
never shifts, i.e.; that of establishing on the whole case the
guilt of the accused beyond a reasonable doubt.” (See
Jhangan Vs. State 1966 (3) SCR 736). (Emphasis supplied)
21. It is against this background of principles we have
examined the contention of the appellant that the charges
under Section 7 of the Act have not been proved against him.
It was argued by Shri U. U. Lalit, Senior counsel, that the
circumstances found by the High Court in their totality do not
establish that the appellant accepted the amount of Rs.1500/-
as gratification. Having examined the findings of both the
Courts, we are satisfied that the appellant has proved his case
by the test of preponderance of probability and we accordingly
17
reach the conclusion that the amount was not taken by the
appellant as gratification. He was made to believe that
amount paid to him was towards the repayment of loan taken
by PW2 from Accused no. 1.
22. The prosecution failed in establishing the guilt of the
accused beyond reasonable doubt that the appellant received
any gratification.
23. For the aforesaid reasons, we find it difficult to
sustain the conviction of the appellant under Section 7 of the
said Act. Accordingly, the conviction of the appellant and the
sentence imposed upon him is set aside.
24. The appeal is allowed.
25. The bail bonds executed by the appellant for release on
bail pursuant to the order dated 04.02.2008 shall stand
discharged.
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……………………………………J.
(Lokeshwar Singh
Panta)
……………………………………J.
(B. Sudershan Reddy)
New Delhi;
February 24, 2009