Central Bureau Of Investigation vs Shri Pravin Kumar & Anr.

This appeal, filed by Central Bureau of Investigation, Anti-Corruption Branch, hereinafter referred to as CBI, seeks to assail the judgment and order dated 10.09.2014, passed by the Special Judge, CBI Court, Mapusa in Special Case No.12/2013/T, inter alia, acquitting the appellant of offences punishable under Section 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act, 1988, for short).

The chronology of events leading to the judgment under challenge can be summarised as under:

Heard Ms Asha Desai, the learned Special Public Prosecutor for the Appellant and Mr Shankar Hegde along with Mr Ganesh Naik, the learned Counsel for the Respondent. Perused the record, impugned judgment and the citations relied upon by the parties.

The principal submissions of the Appellant – CBI are that the demand for the bribe was made by hand gesture by the accused. It was contended on behalf of CBI that the PW1, the complainant, in his evidence has deposed about his complaint and the demand made by the accused by hand gesture, the acceptance of the bribe by the accused on 20.08.2002, consequent recovery of the amount, the panch witness (PW6) observing the bribe transaction and signalling the trap team, subsequent seizure of the tainted currency notes by trap team, preparation of recovery memo, etc., which were not considered by the Trial Court. It was urged by the CBI that minor discrepancies regarding gesture by using fingers were given undue importance by the learned Trial Court. Instead of the local language, English language was used, which created confusion between “index finger” and “forefinger”, thereby leading to an incorrect interpretation of the hand gesture. It was also argued by the CBI that the accused has not rebutted the presumption under Section 20 of the PC Act, 1988. The CBI has canvassed that the accused was erroneously given the benefit of doubt by the learned Trial Court despite the recovery of cash at his instance and that the trial court had completely discarded the evidence of panch witness PW6 as well as the Investigating Officer PW7. The counsel for the CBI has emphasised on the fact that the panch witness, who clearly saw the demand by hand gesture from outside the cabin of the accused, was erroneously disbelieved by the Trial Court.

On the other hand, the accused has supported the judgment of the Trial Court and submitted that the demand for illegal gratification is a sine qua non to constitute the offence under Section 7 of the PC Act, 1988. Mere recovery of currency notes cannot constitute an offence. Insofar as the presumption under Section 20 of the PC Act, 1988 is concerned, such presumption can only be in respect of the offence under Section 7 and not offences under Section 13 (1)(d) of PC Act, 1988. Proof of acceptance of illegal gratification can follow only if there is proof of demand. He would urge that the prosecution has failed to prove the factum of demand. The theory of demand by hand gesture has been demolished by the defence. On the basis of the inherent contradictions within the evidence of the complainant and inter-se contradictions with the panch witness, the prosecution case on ‘demand by hand gesture’ is rendered unreliable. He further submits that apart from the fact that the prosecution has failed to prove its case beyond reasonable doubt, the departmental inquiry conducted in the case has also resulted in the exoneration of the accused on merits and hence the observation of the Hon’ble Supreme Court in the matter of Ashoo Surendranath Tewari V/s. Deputy Superintendent of Police^{11.(2020) 9 SCC 636}, would also be in favour of the accused. It was also his contention that there was prior animosity of the complainant with the accused, which is borne out by the fact that he has lodged two complaints against the same accused on an earlier occasion. In both these inquiries, the accused was exonerated. The accused has also raised a ground that it was impossible for the PW6 panch witness to see what was going on at the time of the trap in the cabin of the accused and hence he is an unreliable witness. He has also submitted that the parameters of appeal against acquittal emphasise that if two views are possible, the one in favour of the accused shall ordinarily be followed.

PW1, Umesh Salgaonkar, has deposed that he had undertaken the work of constructing officers’ quarters for Navy at Dabolim for which he had entered into an agreement with Military Engineering Services (MES), Mumbai and that he was mainly looking after this project on behalf of his firm. He says in his evidence that since the work could not be completed in time, he was seeking extension of time by eight days. On 19.08.2002, he had gone to the office of the accused to inquire about the extension application. At that time, the accused made gesture by demanding cash of ₹5000/- to recommend the extension of contract and called the complainant on the next morning along with the cash. Since the complainant did not want to give any bribe to the accused, he approached the CBI on the evening of 19.08.2002 and made a complaint in writing. The complaint states that the demand was made by the accused by gesturing with fingers. On the next day, the complainant reached the CBI office along with cash of ₹5000/- as instructed by the CBI officer. The number of the notes were recorded on a paper by the CBI officer under the signature of two panchas and he was given a demonstration of how phenolphthalein powder was applied to the currency notes and how it changed colour when dipped in the sodium carbonate solution. The phenolphthalein powder was applied to the currency notes, which were put in an envelope and envelope was placed in the shirt pocket of the complainant after applying phenolphthalein powder to it.

He further deposes that the raiding party along with the panchas proceeded to Vasco. The complainant was instructed not to touch the envelope containing the cash until the demand was made by the accused. Instructions were also given to Kishor Pai, panch witness (PW6), to make a signal by running both his hands through his hair as a signal, once the complainant hands over the envelope to the accused. The complainant reached the office of the accused around 3:15 pm. The panch witness (PW6) accompanied him till the office of the accused and waited outside his office while the complainant entered his cabin and the remaining raiding team waited outside office premises in the vehicle near the compound.

PW1 further states that when he entered the cabin of the accused, the accused was sitting on his chair. Upon seeing the complainant, the accused made a gesture asking whether the complainant had brought cash of ₹5000/- by rubbing his index finger with his forefinger. The complainant answered in affirmative and took out the envelope, handing it over to the accused. The accused also made an oral demand for the cash before the complainant could give the envelope to him. The accused accepted the envelope with his left hand and kept it on the rack on the left side. As decided earlier, PW6 Kishor Pai, immediately made a signal to the trap team as per decided plan. The team members rushed in and apprehended the accused and he was subjected to the phenolphthalein test on both his hands. The solution did not change in one hand while it changed colour in other. A panchanama was drawn, the notes and the envelope were seized, a site plan was prepared and the accused was taken away by the CBI in custody.

When PW1 was cross-examined on demand of ₹5000/-, he says that he does not know the significance and meaning of rubbing the index finger and the forefinger and also the thumb and the little finger. He also admitted that he had not stated to the CBI in his statement that he had made the demand of ₹5000/- in words.

PW2 panch witness has proved the pre-trap, trap panchanama and the site plan.

PW3 is the Commander, Works Engineer, Indian Navy at Vasco. He has deposed about the working of the contract process, etc.

PW4 is the Engineer in Charge and the colleague of the accused. In his evidence, he states that he had not recommended the first extension. He also knows the topography of the cabin of the accused and has mentioned the dimensions of the cabin and certain distances from a relative perspective.

PW5 is the sanctioning Authority, who has proved the sanction order dated 24.09.2003.

PW6 is Kishore Pai, the panch witness of the pre-trap and the trap panchanama. He is a crucial witness since he claims to have seen the accused making hand gesture to demand the bribe. He claims to have witnessed this from near the door of the cabin of the accused, which was at a distance of about 5 to 8 meters. He states that the accused had made gesture demanding bribe with fingers of his hand pursuant to which complainant had removed money from his pocket with his right hand. The accused accepted it with his left hand and kept it on the left side pursuant to which PW6 gave a predetermined signal for the raiding party to rush in. During cross-examination, PW6 says that accused had used all five fingers of his right hand to make the gesture. He cannot say how many fingers had moved during the gesture. He also cannot say if any finger had rolled or rubbed. He admits that the forefinger of the index finger is the finger next to the thumb. He also confirms that no gesture was made by using only the forefinger before him. He further admits that he cannot say what the bending of the forefinger or holding it straight signifies. He concedes that he does not know the meaning of rubbing the forefingers of his two hands. He also says that he does not know the meaning of moving all five fingers up and down nor does he know the meaning of moving only forefinger, except the thumb or rubbing his forefinger one over the other. He admits that he does not know the significance of rubbing or moving the five fingers or any of the fingers of the hand and that the accused did not move/bend up and down his index finger. He also states that the accused did not speak anything to Mr Salgaonkar in his presence.

PW7 is the Investigating Officer. He has set out how the investigation was conducted by him. During cross-examination, however, it was evident that he could not give any satisfactory reason as to why no verification was done of the alleged demand made by the accused to the complainant before proceeding with the trap.

PW8 is the Assistant Garrison Engineer at MES, Vasco. His evidence does not reveal anything incriminating, particularly against the accused.

PW9 is examined as the second IO and he in his evidence has set out the investigation carried out at his instance.

The accused has taken up a defence of total denial as revealed from his 313 statement.

Before proceeding with the contentions of the respective parties in the light of the evidence, it would be necessary to emphasise that the Hon’ble Supreme Court has time and again set out the principles which come into play while deciding the appeal against acquittal. One of the essential elements of the criminal jurisprudence dealing with appeal against acquittal is that after appreciation of evidence, if the Court finds the two views are possible, then the one in favour of the accused shall ordinarily be followed. If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of an acquittal.

The Supreme Court in a series of judgments and most recently in the case of *Neeraj Dutta V/s. State (Government of NCT of Delhi)*^{22.(2023) 4 SCC 731} has reiterated that in order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and subsequent acceptance as a matter of fact. This is a fact in issue which is a sine qua non in order to establish the guilt of the accused under Section 7 and 13(i)(d) of PC Act.

The three cardinal principles of criminal jurisprudence are well settled and in the case of Sri Rabindra Kumar Dey V/s. State of Orisa^{33.Air 1977 SC 170}, they are highlighted as under:

In so far as the presumption under Section 20 of the PC Act is concerned, it is indisputably the presumptive evidence. However, the Hon’ble Apex Court in the authoritative pronouncement of State of Maharashtra V/s. Dnyaneshwar Laxman Rao Wankhede^{44.(2009) 15 SCC 200} has held that before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational fact of demand must be established by the prosecution. Even by invoking 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 probabilities and not that of beyond a reasonable doubt.

Revisiting the facts of the present case, it would be necessary to examine whether the foundational fact of making a “demand” has been successfully proved by the prosecution, which, is the threshold to examine the aspect of acceptance and recovery of the amount and without crossing this threshold, the prosecution cannot establish the guilt of the accused.

The evidence of PW1 reveals that on 19.08.2002, when the complainant had approached the accused in his cabin, the accused had made a demand of ₹5,000/- by gesture and had called him on the next day, i.e. on 20.08.2002. On the next day, during the course of trap panchanama proceedings, when he entered the cabin of the accused, he found that the accused was sitting in his chair and on seeing the complainant, the accused made a gesture asking whether he had brought a cash of ₹5000/-. The complainant categorically testifies that the gesture that the complainant made was of rubbing his index finger with his forefinger. During cross-examination, he has admitted that he had not stated to CBI in his statement that accused had made demand for ₹5000/- in words. This was a material improvement that he made during his deposition in Court and therefore it cannot be believed that the accused had made any demand in words.

PW6 has also not supported the statement of the complainant that the accused had made demand in words. In other words, the demand that is referred to is restricted only to “hand gesture”. Even otherwise, it was never the case of the prosecution that accused had made any demand for bribe by words.

PW7, the Officer who has registered the complaint was also asked about the manner in which the accused had made the demand, according to the complainant and he says that the complainant had used the thumb and index finger and then raised all five fingers as gesture for demand of money. He also admits that he has not specifically mentioned how the gesture was made or use of which finger was made. Thus, according to the prosecution, the theory of hand gesture is that the accused had used thumb and index finger and had raised all five fingers to make demand for money to the tune of ₹5000/-. This is contrary to the statement of the complainant, who says that the demand was made by rubbing index finger with the forefinger. The complainant has also stated that he has neither the knowledge nor the expertise to interpret hand gesture nor he knows the significance of rubbing of the index finger with the forefinger or the thumb with the little finger. Not only is the statement of PW7 at loggerheads with that of PW1 but even taking the evidence of PW1 as it is, it is not clear as to on what basis did he infer that rubbing of index finger and forefinger would be construed as demand for money, especially, in the light of the fact that it is not the case of the prosecution that the demand was made by gestures only.

Insofar as the evidence of PW6 is concerned, he had accompanied the complainant up to the door of the accused at the time of the trap proceedings, however, he did not enter the cabin of the accused but still he could see that the accused made some gesture before the complainant handed over the cash to him. This claim of PW6 is demolished in the cross-examination, where he states that while making the gesture, the accused had used only his right hand and that he cannot say how many fingers had moved during the gesture and that he also cannot say whether any finger had rolled or rubbed and that no gesture was made using only forefinger before him, that he does not know what bending of forefinger or holding it straight signifies, that he does not know meaning of rubbing forefinger of his hands, that he does not know meaning of moving all five finger up and down, that he does not know moving only forefingers except the thumb or rubbing the forefingers one after the other, that he does not know the significance of rubbing or moving the five fingers of any of the hand and that the accused did not move/bend up and down his index finger in his presence nor did he rub or roll his index finger with the four fingers in his presence.

Comparison of the evidence of the complainant and the PW6 reveals the contradictions therein. PW6 states that the accused did not roll or rub his index finger or forefinger in his presence, whereas the complainant states that the accused had rubbed his index finger with the forefinger. It cannot be disputed that the index finger and forefinger mean the same. For rubbing the index finger with the forefinger, necessarily both hands will have to be used. However, the complainant categorically states that the accused had not used both hands to make the gesture. PW1 states that the demand during the trap was made by the accused with his index finger and forefinger, whereas PW6 who claims to have seen the hand gesture made by the accused, states that he cannot say how many fingers were used to make the gesture. Thus, the statement made by the complainant in his deposition is completely contrary to the testimony of PW6. There is yet another contradiction. PW1 states that the money was paid by keeping it in envelope and only the envelope containing the money was given to the accused, who used his left hand to receive the envelope and kept it on the left side of the rack. However, subsequently he says that the tainted money was recovered from the drawer of the desk of the accused, but not in an envelope. The prosecution has not offered any explanation as to how the money changed its position from the rack to the desk of the accused.

The entire edifice of the prosecution case of the demand of illegal gratification rests on the theory of hand gesture allegedly made by the accused. From the aforesaid discussion, this theory falls through as the prosecution has not established the factum of demand beyond reasonable doubt.

Since the prosecution has not succeeded in overcoming the threshold of raising the foundational facts required to invoke the presumption under Section 20 of PC Act, there arises no question of rebutting the said presumption.

Although the Appellant – CBI has harped on the recovery of the tainted currency notes, such recovery de-hors the connecting link of demand is of no consequence as can be seen from the observations of the Hon’ble Supreme Court and other Courts (supra). In fact, on the other hand, while commenting on the probative value of “hand gesture” a coordinate Bench of this Court in the case of Mahesh Ramesh Jadhav V/s. State of Maharashtra^{55.2019 SCC Online Bom 1274}, while dealing with an identical aspect of demand by “hand gesture”, Court has held that such dubious evidence is totally unsafe to fasten the guilt of the accused.

In the wake of the aforesaid facts and circumstances, I find that the impugned judgment and order dated 10.09.2014 suffers from no infirmity and has given cogent and clear reasoning as to the failure of the prosecution to prove its case beyond reasonable doubt. There is no illegality, perversity or error in the reasoning of the Trial Court.

The Appeal is dismissed and the impugned judgment dated 10.09.2014 passed by the Special Judge, CBI Court, Goa in Special Case No.12/2013/T acquitting the accused is confirmed.