C.M.Girish Babu Vs.
Cbi, Cochin, High Court of Kerala [2009] INSC 399 (24 February 2009)
Judgment
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
B.SUDERSHAN REDDY,J.
1.
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 Judge (SPE/CBI)-I, Ernakulam who by his judgment dated 30th March, 2002
convicted the appellant for the offence punishable 2 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 judgment dated 28th 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 3 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.
On 2nd 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 4 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.
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.
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 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 8 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 the Air Cargo Complex on 2nd 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:
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.
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 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.
[(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 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.
(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."
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:
14 "........................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."
18.
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 15
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.
19.
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 16 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
20.
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 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.
21.
The
prosecution failed in establishing the guilt of the accused beyond reasonable
doubt that the appellant received any gratification.
22.
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.
23.
The
appeal is allowed.
24.
The
bail bonds executed by the appellant for release on bail pursuant to the order
dated 04.02.2008 shall stand discharged.
..........................................J.
(Lokeshwar Singh Panta)
..........................................J.
(B. Sudershan Reddy)
New
Delhi;
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