State of Karnataka vs Raoteppa

K.N. Phaneendra, J.—The present appeal is preferred by the Special Public Prosecutor (Lokayuktha), Bidar, challenging the judgment of acquittal passed by the Special Judge and Principal Sessions Judge at Bidar in Spl. Case (CORR) No. 3/2002 wherein the said Court has acquitted the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

Before adverting to the factual matrix of this case, the learned counsel for the accused/respondent herein strenuously contended that the judgment of acquittal should not be normally disturbed by the Appellate Court as the innocence of the accused is fortified by the judgment of the Trial Court after due trial and appreciation of law and facts involved in the case.

Per contra, Sri Kumman, learned Special Public Prosecutor argues before this Court that if the judgment of the Trial Court is patently erroneous, without properly appreciating the evidence and applying the law on the point, the appellate courts are always having such powers to correct the judgments of the Trial Court and record their own finding.

Bearing in mind the above arguments, it is just and necessary to rely upon a decision on this point rendered by the Hon''ble Apex Court in the case of Satvir Singh Vs. State of Delhi, wherein, the Hon''ble Apex Court has observed that -

"Appeal against an order of acquittal -Powers of Appellate Court while dealing with such an appeal - General principles regarding powers of the appellate Court regarding such powers emerging from various decisions, being as follows:

(1) An appellate Court has full power to review, re-appreciate and re-consider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal Such phraseologies are more in the nature of ''flourishes of language'' to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the Trial Court."

On reading of the above said dictum of the Hon''ble Apex Court, it is clear that the jurisdiction of the Hon''ble Apex Court is wide and extensive to consider meticulously the case on hand whether it is in favour of the prosecution or in favour of the accused. Ultimately, the Court has to find-out whether the conclusion reached by the Trial Court is erroneous and no ordinary prudent man on the basis of the materials on record would reach to such conclusion. If the Court is of the opinion that the Trial Court on appreciating the evidence on record and also applying the legal principles, erroneously drawn the inferences either in favour of the accused or against the accused has to be corrected by the appellate Court. Whenever the appellate Court substitutes its finding, it should however record its reasons as to why the appellate Court is deviating from the conclusion reached by the Trial Court. The appellate Court on reasonable appreciation of the materials on record can substitute its own view to that of the view expressed by the Trial Court on the basis of the same materials on record, but under such eventuality, the appellate Court should normally not to substitute its findings in respect of the conclusion reached by the Trial Court. But, if the conclusion of the Trial Court is not possible on the basis of the materials on record, then the appellate Court can substitute its views and correct the mistake or erroneous observation made by the Trial Court. Bearing in mind the above said golden principles, now I have to consider the materials on record and find out whether the Trial Court has committed any serious error in drawing such an inference against the prosecution while acquitting the accused for the above said offences.

The learned counsel for the appellant has strenuously argued before this court that in this particular case, the Trial Court has driven itself to an erroneous conclusion only on the ground that the accused has no work with him pertaining to the complainant and therefore though the tainted currency notes recovered from the accused was disbelieved by the Trial Court while acquitting the accused, but he did not draw the presumption u/s. 20 of the Prevention of Corruption Act, in its proper perspective. Further, he contends that on overall analysis of the evidence of the prosecution witnesses including the evidence of the Investigating Officer, it amply establishes that the prosecution has proved the case beyond all reasonable doubt. Therefore, it is just and necessary that this court has to reverse the judgment of the trial Court and record the judgment of conviction and the accused has to be sentenced.

Per contra, learned counsel for the accused strenuously contended that there are so many discrepancies and contradictions in the evidence of the complainant and some of the important eye witnesses have not fully supported the case of the prosecution. On the other hand, the prosecution failed to establish that there was official pending work of the complainant with the accused, so that he can demand and accept illegal gratification from the complainant so as to draw an inference that the accused has committed any such offence.

In fact the Trial Court after appreciating the evidence of the complainant and the other witnesses came to the conclusion that there was no work pending with the accused and he was not the concerned official who can show any official favour in favour of the complainant. Therefore, it is argued that the judgment of acquittal recorded by the Trial Court absolutely does not call for any interference at the hands of this court. Therefore, he pleads for dismissal of the appeal.

Having heard the arguments on both the sides, before adverting to the points involved in this case let me have the brief factual matrix of this case.

A person by name Shankar Rao son of Shivaram Hegde of Bedakunda, who belong to Scheduled Caste, had applied for some loan from Canara Bank, Kushunoor Branch. He took his mother Shivamma to the said Bank and applied for grant of loan for the purpose of purchasing some agricultural implements for which there was a scheme to provide subsidy for purchase of such agricultural implements. The manager of the said bank told him that loan can be sanctioned to his mother and in order to get subsidy facility, the complainant should go to the office of the SC/ST Development corporation, Bidar and make an application seeking subsidy. On the advice of the Manager, the complainant went to the SC/ST Development Corporation, Bidar, filed and application and submitted the same in the office enclosing his income certificate and other necessary documents and gave the same to the accused who was working in the said office as a Junior Assistant. The fact that the accused was working as a Junior Assistant is not in dispute. The accused in that context alleged to have demanded a sum of Rs. 400/- for the purpose of showing his official favour and with reference to the subsidy and to get the cheque of the subsidy amount in favour of the mother of the complainant. The complainant, who was not willing to pay any amount to the accused by way of bribe, he approached the Lokayuktha Police and lodged a complaint. On the basis of the complaint, Lokayuktha Police laid a trap against the accused. After securing two panchas and demonstrated them the phenolphthalein test and explained its reaction with sodium carbonate solution. After obtaining an amount of Rs. 400/- and smearing them with phenolphthalein powder, were given to the complainant. A witnesses by name Sri Pradeep Kumar, a public servant examined as PW8 was sent along with the accused to observe what transpires between the accused and the complainant.

It is the further case of the prosecution that trap party went to the office of the accused on 17.2.2001 and as per the directions of the Investigating Officer, the complainant and the shadow witness went to the office of the accused and the complainant discussed with regard to his subsidy amount and as demanded by the accused, an amount of Rs. 400/- i.e., tainted four currency notes of Rs. 100/- each was paid to the accused, accused after receiving the same kept them in his pant pocket and thereafter, a pre-instructed signal was given by the complainant to the Lokayuktha Police. It is the further case of the prosecution that the Lokayuktha Police along with another witness PW7 Mirza Akramulla Baig, went to the office of the accused and recovered the tainted currency notes after following certain procedures.

The police have also made certain investigations with regard to the pendency of the work with the accused and found that he was the actual person who was in the helm of affairs of looking after the file of the complainant and after completing the investigation, the Lokayuktha Police have laid the charge sheet against the accused. The accused was released on bail during the course of trial. The Trial Court after securing the presence of the accused and after hearing the parties and after going through the materials on record, framed charges against the accused for the offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.

The prosecution in order to prove the guilt of the accused examined 14 witnesses P.Ws. 1 to 14 and got marked exhibits Pl to P27 and material objects Mos. 1 to 10. Ex. D1 was also got marked in the statement of P.W. 1 by the defence. The Court also examined the accused u/s. 313 of Cr.P.C. and recorded his answers. The accused has not chosen to lead any defence evidence, as such after hearing both sides and after appreciating the evidence on record, the Trial Court has recorded the judgment of acquittal.

Now, this Court has to see whether on the basis of the materials on record, the Trial Court has committed any serious error in appreciating the oral and documentary evidence and also legal aspects involved in this case and that erroneously acquitted the accused.

The evidence recorded by the Trial Court shows that 14 witnesses have been examined.

PW1 Shankar - complainant, has supported the case of the prosecution, who fortified the contents of the complaint Ex. P1 and also in detail stated about the acts of the accused.

PW2 Narsing, FDA, working in the office of the accused i.e., SC/ST Development Corporation, Bidar. He has stated that on 17.2.2001, the accused was present in the office, Lokayuktha Police have collected some documents i.e., Ex. P4, the attendance register pertaining to the said month to establish the presence of the accused person. There is no dispute by the accused, he has not taken up the contention that he was not present in the office on that particular day. It is elicited in the course of cross-examination of this witness that the District Manager of SC/ST Development Corporation, Bidar was the person who is competent to issue cheque to the beneficiary with regard to the subsidy.

PW3-Mahadev Patil is the owner of the premises in which the said SC/ST Development Corporation office was functioning.

PW4-Mohammad Ahmed Hussain is the Assistant Engineer who prepared the sketch as per Ex. P8. This also in fact not seriously attacked in the course of cross-examination.

PW5-Chandrama, is the person who was working as a Field Officer in the SC/ST Development Corporation office in which the accused was working. He has categorically stated about the accused who was working there and he was looking after the file pertaining to the complainant.

PW6-Prabhu is another important witness who was also working as Typist in the office of the SC/ST Development Corporation and he has to some extent narrated as to what exactly happened on the date of the incident which I am going to discuss little later.

PW7-Mirza Akramulla Baig, was the Junior Work Inspector, Urban Water Supply, who was selected as one of the panch witnesses by the police. He has supported the case of the prosecution as to what happened in the Lokayuktha Office when the complaint was lodged and thereafter at the time of the trap in the office of the accused.

PW8-Pradeep Kumar, FDA, a shadow witness to the prosecution, who went along with the complainant. He has supported the case of the prosecution.

PW9-T. Vishwanath, who is the District Manager, SC/ST Development Corporation, and the official superior of the accused has also stated about the presence of the accused in the office on that day and also his nature of work etc.,

PW10-Shamsuddin is the Head Constable of the investigating agency who has smeared phenolphthalein powder to the currency notes and also speak about the fact that he assisted the investigating Officer in conducting the investigation.

PW11-Babu Rao is the Head Constable who carried the incriminating articles to the FSL and brought back the articles along with the FSL report.

PW12-B.H. Anil Kumar is the Managing Director of Karnataka Soaps and Detergents, Bangalore, who is the sanctioning authority, who accorded sanction for the prosecution of the accused. His evidence is not seriously contested. Therefore, his evidence need not be discussed. As the Trial Court has held that the sanction accorded by this person to prosecute as per Ex. P8 is valid and the Trial Court has also accepted the same.

PW13-Shivashankar is the Head Constable who carried the articles to the FSL, is not in dispute.

PW14-Mr. Dwarakanath is the Investigating Officer who thoroughly investigated the case and laid the charge sheet against the accused person.

On careful perusal and re-appraisal of the evidence of P.W. 1, he has categorically stated in his examination in chief that he approached the Canara Bank Manager for sanction of loan applied in the name of his mother and he gave the application to the Manager and in turn, the Manager has directed him to approach SC/ST Development Corporation for subsidy amount. It is specifically stated that he met the accused who was having his file with him and accused demanded Rs. 400/-. It is also specifically stated that he gave complaint to the police as he was not willing to pay bribe to the accused. The complaint is marked at Ex. P1. In fact the contents of the complaint clearly discloses the above said factual aspects. The panchwitness-PW1 has also stated with regard to securing of the panch witnesses to the Police Station and holding pre-trap proceedings to lay trap against the accused, i.e., with regard to smearing of phenolphthalein powder to the currency notes and explaining what will happen if the accused comes in contact with the tainted currency notes and what will happen if the articles smeared with phenolphthalein powder comes in contact with the sodium carbonate solution etc. All those tests were explained to the complainant and the witnesses.

Coming to the further evidence of P.W. 1-complainant that he went to the office of the accused along with the shadow witness and he asked the accused whether he had done his work and accused asked him whether he had brought money or not. Then only he paid money to the accused, accused received the said amount from his right hand and kept the same in his pant hip pocket. He further deposed that he gave the pre-instructed signal, police came to the office of the accused and in fact recovered the said tainted currency notes and held post-trap proceedings regarding the seizure of the amount. It is specifically stated that the police have prepared the seizure mahazar in the office of the accused. He also identified the said money and also the pant of the accused. This evidence is fully corroborated by the shadow witness Mr. Pradeep Kumar, PW8. He also re-iterate the same factual aspect. There is no need to re-iterate the above said facts. But he has stated that on that particular day he went along with the complainant to the office of the accused, he stood near the cabin and the complainant went inside the cabin, they talked with each other and the complainant paid Rs. 400/- to the accused, accused received the same and kept it in his pant hip packet. Thereafter, the said amount was recovered from the accused. He also specifically stated that the hand wash of the accused and the pant hip packet of the accused turned into pink colour, after they were washed with sodium carbonate solution. Further, this evidence is also corroborated by another witness PW7 Mr. Mirza Akramulla Baig, another panch witness who was with the police wing on that particular day when the complainant and PW8 went inside the office of the accused. He has sated that he was also present at the time of trap against the accused and regarding handing over the tainted currency notes by the complainant, and how the said amount was handed over to the accused on demand by the accused. He has further deposed that after getting the pre-instructed signal by the complainant, he also went along with the police to the office of the accused and the police asked the complainant about the amount received by him and then the accused took out currency notes of Rs. 400/- from his pant hip pocket the hands of the accused was washed, his hands as well as pant packet turned into pink colour. All the above articles were seized and sealed by the police. He identified the amount produced by the accused as MO1. MO2 is the pant of the accused washed in the presence of the witnesses. Apart from the above, the evidence of the Investigating Officer supports the case of the prosecution with respect to these factual aspects. Therefore, looking to the evidence of these witnesses, it is crystal clear that there was a complaint given by the complainant to the police, on the basis of the complaint, the Investigating Officer has laid a trap against the accused and the complainant along with tainted currency notes went to the office of the accused and on demand paid the amount and later it was recovered at the instance of the accused.

The contention of the accused before the Trial Court that he was not in a position to do any official favour to the complainant, as he was not having the file pertaining to the complainant and he was not the competent person to issue any cheque in favour of the accused regarding the subsidy and he never demanded any amount with reference to the showing of any official favour doing or forbidding to do any act while discharging his duty as a public servant to help the complainant. Further, the complainant has stated that he has not given any complaint in the Police Station, but he has stated orally. Therefore, the evidence of the complainant has to be disbelieved and accordingly, the Trial Court has disbelieved the version of the complainant. In this background, it is worth to mention the cross-examination of P.W. 1 so as to ascertain what exactly the defense of the accused. In the course of cross-examination of P.W. 1, it is suggested that the mother of the complainant was suffering from ailments and therefore, the complainant has taken Rs. 1,000/- as loan from the accused and the accused was always demanding for return of the said amount. But the said suggestions have been denied. Except that suggestion absolutely no material is available to even probabilise the said defence of the accused. Further it is stated that at the time of payment of money to the accused by the complainant, it is the complainant who paid the amount of Rs. 400/- to the accused and told that he would pay the remaining amount of Rs. 600/- towards the debt taken by his mother. Further, it is worth to note here the document Ex. P19 which is the explanation offered by the accused immediately after the trap. Wherein he has categorically stated in vernacular Kannada language:--

[English Translation: The complainant was known to me earlier. I had given one thousand rupees. Complainant gave Rs. 400/- and told me that he would give remaining Rs. 600/- later]"

This admission on the part of the accused in writing immediately after the trap clearly corroborates the evidence of the complainant with regard to the factum of the complainant going to the office of the accused paying Rs. 400/- and accused kept the said amount with him. But the question is whether the contention taken up by the accused is in any manner probabilise the evidence before the court. As I have noted that the stand taken in Ex. P19 is not at all fully suggested in the course of cross-examination, that the said amount of Rs. 400/- given towards repayment of the debt and that the complainant has said that he would repay the remaining amount of Rs. 600/-. However, in a distorted manner in the course of cross-examination, it is suggested that the complainant has given some amount to the accused and went away. It is also suggested that the complainant was due in a sum of Rs. 1,000/- to the accused but the said suggestion was denied. There is no specific suggestion that what exactly the verbal talks taken place between the accused and the complainant regarding payment of this amount to the accused

The prosecution has clarified this anomaly from the evidence of one of the colleague of the accused who was very much present on that particular day and time of the incident. PW6-Mr. Prabhu, has deposed before the court that he was working as a typist in the office of the accused, they used to sit in the same cabin together. On the date of the incident i.e., on 17.2.2001, two persons came to the office of the accused and they talked with the accused with regard to the subsidy application given by the complainant. Thereafter, all those three persons went out of the cabin and immediately Lokayuktha Police came into the office of the accused took out the amount from the pant packet and the police have caught hold the accused. Though this witness turned hostile to the prosecution with regard to the demand by the accused and payment of money by the complainant on demand and also the accused counting the said amount etc., but nevertheless he has supported the case of the prosecution with regard to the complainant going to the office of the accused, paying amount of Rs. 400/- and accused receiving the same and keeping the amount in his packet and thereafter recovery of the said money from the accused. What is significant in the evidence of this witness is that, he has very categorically in his evidence sated that complainant going to the office, they talked with the accused with reference to the application pertaining to the subsidy. There is absolutely no suggestion in the course of cross-examination by the accused that this witnesses in any manner having any ill-will against the accused in order to falsely implicate him into the crime. He deposed in such a way. There is absolutely no whisper in the course of cross-examination with reference to the accused and complainant talking each other with regard to subsidy amount, no suggestions have been put to this witness about this aspect. Therefore, it goes without saying that the story put forward by the accused that amount of Rs. 400/- has been paid to him by the complainant with reference to any earlier debt due to him by the complainant, falls to the ground. On the other hand, this witness who is an independent witness, unmindful of how it affects the case of accused or the prosecution though he turned hostile, but placed truthful material before this Court. Therefore, the Court cannot discard the evidence of such witness. Therefore, it is undoubtedly established that the complainant presuming that the accused is the competent person to help him and show official favour while discharging his duty as a public servant has paid such an amount of Rs. 400/- to him and accused has received the said amount.

Apart from the above, the evidence of PW9-T. Vishwanath, Bangalore, who is the official superior of he accused working as Manager in the said SC/ST Development Corporation, has deposed before the Court that the accused was working in his office and he was looking with regard to the files pertaining to ''Self Employment Scheme''. In the course of cross-examination by the accused, it is elicited that in order to provide subsidy, the concerned Taluka Development Officer has to furnish the report and it is sated that the file pertaining to the mother of the complainant was given to PW-5 Chandram and on 13.2.2001 this witness had been to Bangalore and he came back to Bidar on 19.2.2001. It is stated that the said file was with PW5 Chandram and after he came back, the cheque pertaining to Shivamma was directly sent to the Bank. Relying upon this portion of the evidence, it is contended that the file was not with the accused. But what has to be looked into by the Court is that if the file was not with the accused, what was the necessity for the accused to talk with the complainant, with reference to the subsidy to be awarded to Shivamma. However, it goes without saying that this accused was working in the said office and to some extent he was the case worker in the said office.

It is worth to note here the evidence of PW6-Prabhu in this context. In the course of cross-examination by the prosecutor, he has stated that on that particular day, the accused has told the complainant that he would get the work done and thereafter, he went out from the office. The said suggestion was accepted by this witness and this has not been subjected to cross-examination by the accused. So irrespective of the fact whether the accused had the possession of the file pertaining to the complainant''s mother, but the evidence discloses that he has taken the responsibility to get the work done pertaining to the mother of he complainant.

In this background, the Court has to read the provision under the Prevention of Corruption Act, whether the above said facts are sufficient to attract the provisions of Sections 7 , 13(1)(d) of the Prevention of Corruption Act. Section-7 of the Prevention of Corruption Act, 1988, reads thus -

"7. Public servant taking gratification other than legal remuneration in respect of an official act--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2 , or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

(Explanations) --(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."

This provision clearly says that any gratification received by the accused/public servant other than the legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person. The ''gratification'' is also explained at explanation (b) that the gratification need not be restricted to pecuniary gratifications or to gratifications estimable in money. But here in this case, it is a money transaction that has been taken place. The word legal remuneration'' is also explained at explanation (c) that it is not restricted to remuneration which a public servant can lawfully demand, but includes all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. The ''motive or reward for doing'' is explained at explanation (d) that a person who receives a gratification as a motive or reward for doing what he does is also clearly explained.

If the provision is understood in a proper perspective, it gives a clear indication that if any amount which is received by the accused, if it cannot be termed as legal remuneration authorized by the Government or by the organisation, if he is not legally entitled to for that amount or if the public servant does not explain it properly as to how he is entitled for that remuneration, all other type of amounts shall be categorized as illegal gratification. Sub clause (d) to the explanation says that even if he poses himself that he would get the work done or even if he is not in a position to do that act or even if he does nothing, but he pretends or poses that he would get the work done and receives money, that becomes the receipt of illegal gratification as a motive or reward for doing something.

Therefore, even if the public servant is not capable of rendering any service to the complainant yet the fact remains that according to the allegations of the prosecution, he demanded money for showing official favour to the complainant. When he is not denied the receipt of the money, but the accused made attempts to explain that it is the amount paid towards the part payment of the debt, but there is absolutely no iota of evidence to support the said contention even by means of preponderance of probabilities, the prosecution case has to be accepted.

I am conscious of the principle regarding standard of burden on the accused to prove his case. There is no imperative on the part of the accused to prove his case or his defence beyond reasonable doubt. But atleast the Court should be in a position to accept satisfactorily his defence to come to the conclusion that the defence taken up by the accused also a possible circumstance which could have been favoured the accused. But in this case, the defence taken up by the accused is falsified by his own colleague examined before the Court. These core factors in the prosecution case lost the sight of the learned Sessions Judge but he culled out the contradictions here and there, which do not go to the root of the prosecution case in holding that the accused had no work with him to favour the complainant. On that ground alone, the learned Sessions Judge has acquitted the accused. In my opinion, it is not proper and it is not based on the materials on record.

Now coming to other provision, Section 13(1)(d) of the Prevention of Corruption Act, reads thus:--

"13. Criminal misconduct by a public servant--

(1) A public servant is said to commit the offence of criminal misconduct,--

(a) xxxx

(b) xxxx

(c)xxx

(d) if he,--

(i) By corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."

On a meaningful reading of the above said provision, if the prosecution is able to show that the public servant by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; without any public interest, then the said act falls under the provisions of Section 13(1)(d) of the Act. Therefore, it goes without saying that if once the amount said to have been given to the accused by the complainant, on demand by way of bribe and is recovered from the accused, the burden shifts on to the accused to establish that the said amount so received by him is not by way of illegal or corrupt means. That clearly indicates that he has to establish that he has not received the said amount by corrupt means, but it is a legal remuneration due to him. This section imperatively say that it need not be an illegal gratification for the purpose of showing official favour. Bereft of existence of official favour also mere receipt of money by illegal means and that there being no explanation by the accused as to how he came into the possession of that amount, it will attract the said provision.

In this background, it is just and necessary to rely upon Section 20 of the Act, which reads thus -

"20. Presumption where public servant accepts gratification other than legal remuneration.--

(1) Where, in any trial of an offence punishable under section 7 or 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.

(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."

This provision says that when a public servant is shown to have accepted gratification other than the legal remuneration, then the Court has to presume, for the purpose of Section 7 of the Prevention of Corruption Act, that such amount has been received by him as illegal gratification for the purpose of showing his official favour that means to say, Section 13(1)(d) of the Act is also attracted, even without any illegal gratification for the purpose of showing official favour. But, by virtue of his presumption, if the accused has failed to explain as to how and why he received that amount and by means of other material, it is shown that he has accepted that money by way of illegal gratification, then the Court has to draw presumption that he has received the said money for the purpose of showing official favour. This presumption can only be drawn with reference to showing of the official favour in favour of the complainant. If that presumption is drawn in favour of the prosecution, the Court has to search whether there is any explanation by the accused that there was absolutely no work pending with him but as I have already narrated that his own colleague has specifically stated that he has talked with the complainant with reference to the work of the complainant. Therefore the Court has to presume that he had undertaken to show official favour, though he may not be in a position to do any official favour, but he posed himself that he would show official favour making the complainant to believe that fact and made him to pay such an amount. These are all the important aspects, trial Court has not bestowed its attention in proper prospective and ultimately erroneously acquitted the accused.

In this context, it is worth to refer a decision of the Hon''ble Apex Court reported in AIR 2009 SCW 2697 between Krishan Ram v. State of Rajasthan wherein the Hon''ble Apex Court has observed that -

"In a bribery case, the appellant has given his reply that it was not the bribe amount received but the amount of loan repayment. Complainant has categorically stated that it was not the loan amount, but it was the bribe money demanded by him. The appellant took out the currency notes of Rs. 500/- from the pocket of his Bushirt in the presence of the witnesses. Therefore, the Hon''ble Apex Court has said that presumption has to be drawn u/s. 20 to hold that the accused has committed the offence u/s. 7 of the Prevention of Corruption Act."

The learned Counsel for the respondent/accused has also relied upon a ruling of Hon''ble Apex Court reported in B. Jayaraj Vs. State of A.P., , wherein the Hon''ble Apex Court has observed that -

"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 u/s. 7 of the Act unless it is proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe.

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Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence u/s. 7 and 13(1)(d)(i)(ii) of the Act, in the absence of proof of demand of 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."

The above said ruling clearly indicates that mere recovery of currency notes is not sufficient, what is contemplated under law is that there must be substantial and acceptable proof that the amount so paid by the complainant and retained by the accused was illegal gratification towards his work or believing that the accused could get his work done in that context it should be held that the accused has received the said money as bribe. The above said ruling is aptly applicable to the case on hand.

In this particular case, at any stretch of imagination, it cannot be said that it is mere recovery of currency notes bereft of any substance to show that it was illegal gratification, demanded and accepted by the accused. On the other hand, the accused has admitted the receipt of money, recovery of money from him by police and the complainant has categorically supported the case of the prosecution that he has paid money as illegal gratification. It is also fully supported by the shadow witness as well as the statement of his own colleague as I have already referred to above. Therefore, it clearly indicates that it is not mere recovery of currency notes, but it is the currency notes received by the accused as illegal gratification by means of corrupt and illegal means by abusing his position as a public servant. Therefore, in my opinion, not only the trial Court has not properly appreciated the materials on record but certain meager contradictions and omissions which are there in the evidence of the complainant and the shadow witness that is with regard to the lodging of the complaint orally, not in the police station and going to the office of the accused and shadow witness not actually listening to the version between complainant and the accused and also with regard to the hand wash and pant wash of the accused etc., but the core of the prosecution or the substratum of the prosecution case is not disturbed. When such being the case, the Courts normally should not give much importance to the omissions, contradictions and material discrepancies which do not go to the root of the prosecution case. Inter alia, it can also be observed that the witnesses who have examined before the Court after four or five years from the date of incident, naturally, their evidence would contain some contradictions and omissions. Therefore, it is said that the basic version of the prosecution whether disturbed or not is to be looked into. Though sometimes the witness is wholly truthful, he is liable to be tensed by the Courts atmosphere and also the cross-examination by the expert counsels and it may be out of nervousness, they may mix up the facts, get confused with regard to the sequence of events. Merely because some sequence of events are missing, it cannot be said that their evidence in toto should be up-rooted. It is also to be noted that if five persons are asked to explain a particular case as to how it happened, there will be five different types of evidences on the same facts. If minor contradictions and omissions are there, that shows the natural conduct of the human being. The overall analysis of the witnesses placed before the Court by the parties should be analysed in a positive manner in order to ascertain whether the core of prosecution has been established or not?

On facts and on law, so far as this particular case is concerned, in view of my above said discussions and reasons, I am of the considered view that the view taken by the Trial Court is not a possible view and it is erroneous view which is not based on the materials on record. By giving much importance to the minor contradictions and omissions and misleading itself with regard to the fact that accused was not having any power to issue cheque or sanction subsidy in favour of the complainant, the Court has acquitted him without properly appreciating the circumstances in the case. Therefore, invariably, this Court has to hold that the Trial Court has committed serious error in acquitting the accused.

It is important to note that corruption has become a disease like cancer in our country. Even in the case on hand, where the prosecution has able to establish the case of corruption, if the Courts unmindful of the situation in the country acquit such accused person by gasifying the minor contradictions and omissions which would definitely lead to encouraging corruption and such an attitude has to be curbed and the Court should be hard and harsh whenever, the prosecution is able to establish the case against the accused beyond reasonable doubt, in order to eradicate the corruption and uproot it as far as possible. Therefore, the above said circumstances are sufficient to draw an inference of guilt against the accused. Hence, I hold that the prosecution has proved the case under Section 7 and 13(1)(d) of Prevention of Corruption Act against the accused beyond reasonable doubt. Hence, the following order:

The appeal is allowed. Consequently, the judgment of acquittal passed by the trial Court in Special Case No. 3/2002 by the Principal Sessions and Special Judge, Bidar, is hereby set aside. The accused is convicted for the offence punishable under Sections 7 and 13(1)(d) of the Prevention of Corruption Act.

I have heard the arguments of the learned counsel with regard to the sentence. As the offence is prior to amendment to P.c. Act, the punishment under the Act prior to amendment is to be taken into consideration.

Section-7 of the Act is punishable with imprisonment which shall not be less than six months but which may extend to five years and shall also be liable to fine. Section 13(1)(d) is punishable with section 13(2) of the Act prescribes punishment with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

The learned counsel for the respondent/accused submitted that the accused is in the fag end of his service. He is aged 59 years and suffering from paralytic stroke. He has already undergone sufficient punishment as he faced trial before the Trial Court and also he engaged the counsel before the High Court and spent lot of money towards the litigation expenses and he has suffered hanging sword right from 2001. Therefore, lenient view may be taken and minimum sentence to be imposed.

Looking to the facts and circumstances of the case, in my opinion, if the Court imposes minimum sentence of punishment of one year for the offence punishable under Sections 7 and also 13 (1)(d) r/w. Section 13(2) of the Act and fine of Rs. 10,000/- each respectively with default clause to undergo Simple Imprisonment for six months in the event of non payment of fine amount would meet the ends of justice.

Accordingly, the accused is sentenced. The accused is directed to surrender himself before the Trial Court to undergo punishment. Both the substantive sentences shall run concurrently.

If any period of imprisonment already undergone, the same shall be given set-off under Section 428 of Cr.P.C.

Office to send a copy of this Judgment to the trial Court for further needful action.