2016 ALL SCR (Cri) 291
SUPREME COURT

H. L. DATTU AND ARUN MISHRA, JJ.

Khaleel Ahmed Vs. State of Karnataka

Criminal Appeal No.746 of 2008

8th September, 2015.

Petitioner Counsel: Mr. S.K. KULKARNI, Mr. M. GIREESH KUMAR, Mr. ANKUR S. KULKARNI, Mr. VIJAY KUMAR
Respondent Counsel: Ms. ANITHA SHENOY

(A) Prevention of Corruption Act (1988), Ss.7, 13(1)(d), 13(2) - Illegal gratification - Proof of demand - Complainant stated in complaint that accused demanded Rs.3,500/- to get the process completed for estimation of rental value of complainant's house - However, in his examination in chief he stated that accused asked him to purchase Army tickets worth Rs.3,500/- otherwise said process would not get completed - Statement again changed in cross-examination - Complainant disowned what he had stated in initial complaint and did not support prosecution case - Shadow witness also not supporting aspect of demand - Other witnesses who were allegedly present at the time when tainted currency notes were handed over to accused, not examined - Demand not proved beyond reasonable doubt - Accused acquitted by giving benefit of doubt. (Paras 19, 20, 24)

(B) Prevention of Corruption Act (1988), Ss.20, 13(1)(d) - Presumption u/S.20 - Does not apply to offence u/S.13(1)(d) of PC Act.(Para 25)

Cases Cited:
State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, 2009 ALL MR (Cri) 3127 (S.C.)=(2009) 15 SCC 200 [Para 17]
B. Jayaraj Vs. State of Andhra Pradesh, 2014 ALL SCR 1619=(2014) 13 SCC 55 [Para 18,25]
Sujit Biswas Vs. State of Assam, 2013 ALL SCR 2153=(2013) 12 SCC 406 [Para 23]
C.M. Girish Babu Vs. C.B.I. Cochin, High Court of Kerala, 2009 ALL SCR 710=(2009) 3 SCC 779 [Para 26,27]
V.D. Jhangan Vs. State of Uttar Pradesh, (1966) 3 SCR 736 [Para 27]


JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and order passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.1825 of 2002, dated 29.10.2007, whereby and whereunder the High Court has reversed the order of acquittal passed by the Trial Court and has convicted and sentenced the appellant-herein for the offences punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, "the PC Act").

2. The brief facts of the prosecution case are that the appellant-herein was working as a clerk in the Public Works Department, Division Office, Yadgir. The complainant's house was let out on rent to the Block Development Office for running a SC & ST Hostel, and the Block Development Officer sent a requisition to the Public Works Department for estimating the rental value of the house. The file was pending for approval before the Executive Engineer, Public Works Department, Division Office, Yadgir, therefore the complainant visited the office wherein he met the appellant. The appellant asked for a bribe of Rs.3,500/- to get the process completed for estimation of the rental value of the complainant's house. When the complainant expressed his inability to pay such a large sum of money, the appellant agreed to accept Rs.1,500/- in advance and Rs.2,000/- at a later point in time.

3. On 26.06.1996 a complaint was filed before the Deputy Superintendant of Police, Karnataka Lokayukta, Gulbarga on the basis of which a case was registered under Section 7 and Section 13(1)(d) read with Section 13(2) of the PC Act. Pre-trap proceedings, including smearing the trap money worth Rs.1,500/- with phenolphthalein powder, were completed. Thereafter, the complainant along with panch witnesses and Lokayukta Police Officers went to the appellant's office. The complainant and panch witness (PW-7) went inside the office and the complainant handed over the tainted currency notes to the appellant. At about 3:30 p.m. they came out of the office, and on their signal the trap team entered the appellant's office. The tainted currency notes were found in the pant pocket of the appellant. The notes, the pant pocket, and the hands of the appellant were washed in sodium carbonate solution and the solution turned pink.

4. After the completion of investigation and obtaining of sanction, a charge-sheet was filed against the appellant. Thereafter, the appellant appeared before the Trial Court and after both sides were heard, charges were framed under Sections 7 and Section 13(1)(d) read with Section 13(2) of the PC Act. The charges were read over and explained to the appellant who pleaded not guilty. Accordingly, the case was committed to Trial.

5. In order to substantiate the charges framed against the appellant, the prosecution examined nine witnesses including the complainant, panch witnesses, and the Deputy Superintendant of Police, Karnataka Lokayukta, who led the trap team. The prosecution also presented 21 documents and six material objects as evidence. After the completion of prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short, "the Code") wherein he pleaded innocence. No evidence was led in defense of the appellant.

6. On a detailed examination of the prosecution evidence, the Trial Court held that the evidence of the complainant created fatal doubts in the prosecution case as the complainant had given two different versions in his examination-in-chief and cross examination. The complainant stated in his complaint that the appellant had asked for a bribe of Rs.1,500/-, while during his examination-in-chief the complainant stated that the appellant had asked the complainant to purchase Army tickets worth Rs.1,500/- or else his work would not get done. However, during his cross-examination the complainant stated that the sum of Rs.1,500/- was given to the appellant for the purchase of Army tickets and that he had filed a complaint before the Lokayukta out of anger, since the appellant had asked the complainant to come to the office frequently for his work. On that basis, two views were possible, and hence the benefit of the doubt would go to the appellant. Therefore, the Trial Court held that the prosecution had failed to prove the ingredients of the offences with which the appellant was charged beyond reasonable doubt. Accordingly, the Trial Court acquitted the appellant for the offences punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the PC Act.

7. Aggrieved by the order of acquittal passed by the Trial Court, the respondent-State herein preferred an appeal before the High Court.

8. The learned counsel for the respondent-State would submit before the High Court that the tainted currency notes of Rs.1,500/- were found in the pockets of the appellant, and thereupon a presumption is raised under Section 20 of the PC Act. Further, the explanation offered by the appellant that the amount was towards the purchase of Army tickets cannot be accepted. The Army tickets that were to be sold by the appellant's office had already been sold. Accordingly, the learned counsel for the respondent-State contended therein that the appellant had failed to rebut the presumption under Section 20 of the PC Act and that there was sufficient evidence on record to hold the appellant guilty of the offences punishable under Section 7 and Section 13(1) (d) read with Section 13(2) of the PC Act.

9. Per Contra, the learned counsel for the appellant would support the judgment of acquittal passed by the Trial Court and inter alia submit before the High Court that the tainted currency notes seized from the appellant were towards purchase of Army tickets, and mere seizure of the tainted currency notes was not sufficient to establish the guilt of the appellant and more so when the appellant had provided a proper explanation for the presence of the tainted currency notes.

10. Upon examining the evidence on record including the judgment and order of the Trial Court, the High Court has held that the Deputy Superintendent of Police, Karnataka Lokayukta and the panch witnesses have supported the case of the prosecution including the statement made by the complainant regarding demand of illegal gratification by the appellant, the handing over of the tainted currency notes, the recovery of the tainted currency notes from the appellant and successful completion of trap proceedings. The High Court has noticed that the complainant did not support the prosecution case as to the demand and acceptance of illegal gratification in his testimony. Notwithstanding the same, the High Court has convicted the appellant based on the presumption raised under Section 20 of the PC Act.

11. The High Court has held that the appellant has failed to provide a satisfactory explanation to rebut the presumption raised upon the recovery of tainted currency notes from his possession. The High Court has relied upon the testimony of the cashier (PW-4) who was authorised to sell the Army tickets. In his testimony PW-4 stated that the appellant was not authorised to sell the Army tickets, further that there were 3,300 Army tickets that were sent to their office to be distributed among five sub-divisions, and also that they had sold 440 tickets. The High Court has observed that in the cross-examination of PW-4 it has not been established that there were any Army tickets remaining to be sold, and in that view of the matter the High Court has held that the explanation provided by the appellant does not rebut the presumption raised under Section 20 of the PC Act.

12. Accordingly, on the basis of the presumption raised under Section 20 of the PC Act, the High Court has convicted the appellant for the offence punishable under Section 7 of the PC Act and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/-, and in default to undergo simple imprisonment for one month. Further, the High Court has convicted the appellant for the offence punishable under Section 13(1)(d) read with Section 13(2) of the PC Act and has sentenced the appellant to undergo simple imprisonment for one year, and also to pay fine of Rs.1,500/-, and in default to undergo simple imprisonment for one month. Both sentences were ordered to run concurrently.

13. Being aggrieved by the said judgment and order passed by the High Court, the appellant is before us in this appeal.

14. We have heard the learned counsel for the parties to the lis.

15. Mr. Vijay Kumar, the learned counsel for the appellant would assail the judgment and order passed by the High Court and submit that the prosecution has failed to prove demand of illegal gratification which is a sine qua non for the offences under Sections 7 and 13(1)(d) of the PC Act, and therefore the order of conviction passed by the High Court is unsustainable on facts and law. Without prejudice to the above, the learned counsel would further submit that money shown to have been recovered from the possession of the appellant was by no means illegal gratification but was towards purchase of Army tickets. In that view of the matter, it would result in a travesty of justice if the appellant is convicted on the basis of the presumption raised under Section 20 of the PC Act when a satisfactory explanation has been provided for the possession of the tainted currency notes shown to be recovered from the appellant. Accordingly, the learned counsel for the appellant would submit that the appellant must be acquitted for the offences under Sections 7 and 13(1) (d) of the PC Act.

16. Per contra, Ms. Anitha Shenoy, the learned counsel appearing for the respondent-State would support the order of conviction and sentence passed by the High Court.

17. We will first address the contention regarding proof of demand of illegal gratification. It is a well settled position of law that demand of illegal gratification is a sin qua non for the offences under Section 7 and Section 13(1)(d). Conversely, in the absence of proof of demand of illegal gratification, the offences under Section 7 and Section 13(1)(d) cannot be made out. In State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200 : [2009 ALL MR (Cri) 3127 (S.C.)] this Court has held:

"Indisputably the demand of illegal gratification is a sine qua non for the constitution of an offence under the provisions of the (PC) Act."

18. More recently, in B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55 : [2014 ALL SCR 1619], this Court has held:

".. In so far as the offence Under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence Under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe..."

" ..The above also will be conclusive in so far as the offence Under Section 13(1)(d)(i) (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established..."

19. In the instant case, in the complaint dated 26.06.1996, the complainant has stated that the appellant demanded a bribe of Rs.3,500/- to get the process completed for estimation of the rental value of the complainant's house. However, in his examination-in-chief the complainant has stated that the appellant asked him to purchase Army tickets worth Rs.3,500 otherwise the estimation process would not get completed.

20. Further, in his cross-examination the complainant has admitted that he gave the amount of Rs.1,500/- to the appellant for purchase of Army tickets, and that he had filed a complaint under the PC Act against the appellant due to anger at the appellant for asking him to come to the office frequently for his work. It is, therefore, clear that the complainant has disowned what he had stated in the initial complaint and has not supported the prosecution case in so far as the demand of illegal gratification by the appellant is concerned.

21. Further, the evidence of the shadow witness (PW-7) who was allegedly present when the tainted currency notes were handed over to the appellant also does not prove demand of illegal gratification by the appellant. PW-7 has only stated that:

"..party gave the amount in the hands of the accused who is before the Court. That party is Sharanappa (complainant).."

22. The prosecution has not examined any other witness present at the time when the tainted currency notes were allegedly handed over to the appellant by the complainant, to prove that the same was pursuant to any demand made by the appellant.

23. It is a golden principle of criminal law that the burden of proof required to be discharged by the prosecution is one of 'proof beyond reasonable doubt'. In Sujit Biswas vs. State of Assam (2013) 12 SCC 406 : [2013 ALL SCR 2153], this Court has held:

"..Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'..."

24. We are of the considered view that in the instant case the prosecution has failed to discharge its burden to establish that the appellant demanded illegal gratification beyond reasonable doubt. The testimony of the complainant raises considerable doubt in the prosecution version, and two views of the matter are possible, and therefore the benefit of the doubt must go to the appellant. Accordingly, we hold that demand of illegal gratification by the appellant is not proved in the instant case.

25. We will next address the contention regarding the presumption raised under Section 20 of the PC Act. It must be noted at the outset that Section 20 does not apply to the offence under Section 13(1)(d) of the PC Act. This becomes evident on a bare reading of Section 20 of the PC Act, and has also been unequivocally established as the position of law by this Court in B. Jayaraj, [2014 ALL SCR 1619] (supra). Accordingly, the High Court has erred by extending Section 20 to the offence under Section 13(1)(d) of the PC Act.

26. So far as the presumption raised under Section 20 for the offence under Section 7 is concerned, it is settled law that the presumption raised under Section 20 is a rebuttable presumption, and that the burden placed on the appellant for rebutting the presumption is one of preponderance of probabilities. In C.M. Girish Babu vs. C.B.I. Cochin, High Court of Kerala (2009) 3 SCC 779 : [2009 ALL SCR 710], this Court has held:

"..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 adducing reliable evidence...

..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..."

27. In C.M. Girish Babu, [2009 ALL SCR 710] (supra) this Court has referred to the decision in V.D. Jhangan vs. State of Uttar Pradesh [1966] 3 SCR 736, wherein this Court has held in the context of Section 4 of the Prevention of Corruption Act, 1947 which is parri materia to Section 20 of the PC Act:

"..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..."

28. In our considered opinion, the High Court has failed to consider this aspect of the matter.

29. It is against this backdrop that we will examine the explanation offered by the appellant for possession of the tainted currency notes. In the explanation offered by the appellant in Exhibit P-14 on the spot after the trap, the appellant had stated that the complainant gave the amount for purchase of Army tickets, and the appellant went to PW-4 for purchase of the tickets, but PW-4 had gone out for tea, and in the mean time the trap was concluded. This explanation was accepted by the complainant during his cross-examination. Further, the appellant has submitted that he was not authorised to estimate the rent value, and therefore no occasion arose for him to demand or accept illegal gratification. The appellant relied on the testimonies of the officials PW-1 and PW-2 of the Public Works Department in support of his submission. In our considered view, this explanation offered by the appellant seems to be reasonable.

30. The High Court has relied on the testimony of cashier (PW-4) to disbelieve the explanation offered by the appellant wherein PW-4 stated that the appellant was not authorised to sell Army tickets, further that there were 3,300 Army tickets that were sent to their office to be distributed among five sub divisions, and also that they had sold 440 tickets. In our considered view, this does not refute the explanation offered by the appellant as he has also admitted that he was not authorised to sell Army tickets and has consistently submitted that he went to PW-4 to purchase Army tickets on behalf of the complainant. The High Court has gone beyond the testimony of PW-4 to hold that the appellant has failed to provide a satisfactory explanation because there were no Army tickets left to be sold as the remaining tickets were distributed to the other sub-divisions. This observation of the High Court is not sustainable.

31. In our considered view, the appellant has discharged the burden of proof placed on him based on a preponderance of probability, and in that view of the matter the presumption raised under Section 20 has been successfully rebutted.

32. In light of the aforesaid reasons, the order of conviction and sentence passed by the High Court is set aside and the appellant is acquitted of the offences punishable under Section 7 and Section 13(1) (d) read with Section 13(2) of the PC Act.

33. The appellant is on bail. His bail bonds are discharged.

Ordered accordingly.

Appeal allowed.