C.M. Sharma Vs State of
A.P. Th. I.P.
JUDGMENT
CHANDRAMAULI KR.
PRASAD, J.
1.
The
appellant, at the relevant time was posted as Deputy Chief Engineer, Railway Electrifications,
South Central Railway. He was put on trial for commission of the offences under
Section 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of
Corruption Act, 1988 (hereinafter referred `the Act'). Special Judge for CBI
cases at Visakhapatnam by judgment and order dated 15th of February, 1999
passed in C.C. No. 17 of 1997 held him guilty of the aforesaid offences and
sentenced him to undergo rigorous imprisonment for a period of one year and
fine of Rs. 2,000/-, in default to suffer simple imprisonment for three months
for the offence under Section 7 of the Act. The appellant was further sentenced
to undergo rigorous imprisonment for a period of one year and to pay a fine of
Rs. 2,000/-, in default to suffer simple imprisonment for three months for the
offence under Section13 (1) (d) (ii) read with Section 13 (2) of the Act. Both
the substantive sentences were directed to run concurrently.
2.
Aggrieved
by the same he preferred appeal and High Court by its judgment dated 29th of
July, 2005 passed in Criminal Appeal No. 499 of 1999 had affirmed the conviction
and sentence of the appellant and dismissed the appeal. Aggrieved by the same
the appellant has preferred this appeal with the leave of the court.
3.
According
to the prosecution, the appellant at the relevant time was posted as Deputy
Chief Engineer, Railway Electrification, South Central Railway, Vijaywada. PW-1,
M. Venka Reddy (hereinafter referred to as the `contractor'),during the years 1992-1994,
was awarded the contracts of railway electrification between railway stations
Bhongir and Sanathnagar and Maulali and Sanathnagar bypass under agreement No.
29 dated 3.4.1992 and agreement No. 41 dated 20.11.1992 respectively. Further
by agreement No. 3 dated18th October, 1994 work to provide height gauges at
railway crossing between Vijayawada and Gannavaran was awarded to him.
According to the prosecution the contractor completed the works to the satisfaction
of the railway authorities and in respect of the works covered by aforesaid
agreement nos. 29and 41 he received the payment. The contractor also completed
the work covered under agreement No. 3 dated18.10.1994 aforesaid in the month
of March, 1995. The appellant was the competent authority to pass the bills and
accordingly the contractor met him on 19.4.1995 and requested to finalise the
bill. It is alleged that the appellant told to the contractor that he had passed
the final bill and demanded Rs. 3,000/- as illegal gratification and reminded
the contractor that he did not pay any amount in respect of earlier bills. The
contractor expressed his inability to pay the illegal gratification but the
appellant insisted and asked him to bring the money on 20th April, 1995. The
contractor was not willing to pay the illegal gratification and accordingly he
met the officials of the Central Bureau of Investigation and gave a written
report (Exh. P-1 dated 19th of May, 1995). Being satisfied with the bonafide of
the allegation, a pre-trap exercise was undertaken by PW-7, S.B. Shankar in
which PW-2, G.T. Kumar besides the contractor participated. PW-2, G.T. Kumarat
the relevant time was posted as Inspector of Central Excise and on the
instruction of office Superintendent, he had gone to participate in the
pre-trap exercise. It is alleged that the contractor along with the
shadow-witness PW-2, G.T. Kumar went to the office of the appellant but he
asked the shadow-witness to go out of the chamber. Shadow witness left the
chamber. However, contractor brought the shadow witness in the chamber and
explained to the appellant that he is his financer. Despite that shadow-witness
was asked to leave the chamber and he went out. Thereafter appellant demanded
the money and the contractor handed over the tainted money to him, which he
received from his right hand and kept in right side pocket of the trouser. A
signal was given, whereuponPW-7 S.B. Shankar, the Inspector along with his team
entered in the chamber, apprehended the appellant and conducted sodium
carbonate test on the fingers of both the hands and right trouser pocket of the
appellant, which turned pink. The tainted notes were lying on the floor of the
office, which were recovered.
4.
After
usual investigation, the Investigating Agency submitted the charge-sheet and
the appellant was put on trial, where he abjured his guilt and claimed to be
tried. In order tobring home the charge, prosecution had examined altogether
seven witnesses and got exhibited a large number of documents. Out of the
witnesses examined by the prosecutionPW-1, M. Venka Reddy is the contractor,
whereas PW-2, G.T. Kumar is a shadow witness, PW-7, S.B. Shankar, at the
relevant time was Inspector of the Central Bureau of Investigation, who had
conducted the pre-trap exercise and laid the trap in which appellant was apprehended
after he had accepted the bribe. The plea of the appellant in his statement under
Section 313 of the Code of Criminal Procedure is of false implication due to
enmity with the contractor. In order to prove the defence, he had examined DW-1,
Bodh Raj Sharma,Chief Administrative Officer, Construction as defence witness.
5.
The
trial court on appreciation of the evidence came to the conclusion that the
prosecution has been able to prove its case beyond all reasonable doubt. While
doing so it considered the defence version and rejected the same. Accordingly
the appellant was convicted and sentenced as above by the trial court, which
has been affirmed in appeal by the High Court.
6.
Mr.
Nagendra Rai, learned Senior Counsel appearing on behalf of the appellant
submits that there being strained relationship between the appellant and the
contractor it is highly improbable that he would demand the illegal gratification
from him. In this connection he has drawn our attention to the evidence of the
contractor in his cross-examination wherein he had stated that as his bill was pending
in the office of the accused, he entertained an idea to make complaint against
the appellant. Our attention also has been drawn to the evidence of DW.1,
Bodhraj Sharma and the letter dated 11.3.1995 (Exh.2) written by the appellant
to the Chief Engineer, in which he had stated that since he has flatly effused
to clear the bill as per contractor's claim, he had threatened him to rope in
some false case. In the aforesaid background, it has been highlighted that
demand of illegal gratification alleged to have been made by the appellant is absolutely
untrue. In support of the submission reliance has been placed on a decision of
this Court in the case of Panalal Damodar Rathi v. State of Maharashtra, 1987
Supp. SCC266 and our attention has been drawn to the following paragraph of the
judgment: "Therefore, the very foundation of the prosecution case is
shaken to a great extent. The question as to the handing over of any bribe and recovery
of the same from the accused should be considered along with other material
circumstances one of which is the question whether any demand was at all made
by the appellant for the bribe. When it is found that no such demand was made
by the accused and the prosecution has given a false story in that regard, the
court will view the allegation of payment of the bribe to and recovery of the
same from the accused with suspicion."
7.
We
do not find any substance in the submission of Mr. Rai and the decision relied
on has no bearing on the facts and circumstances of the case. From the evidence
of contractorPW.1, M. Venka Reddy and the shadow-witness PW.2, G.T.Kumar it is
evident that both of them entered into the chamber of the appellant. The
appellant asked the shadow-witness to go out and PW.2 accordingly left the
chamber. However, he was brought back by the contractor stating thatPW.2, G.T.
Kumar is his financer but the appellant again asked him to go out and within
few minutes after PW.2, G.T. Kumar left the chamber appellant demanded the
money, whereupon he delivered the tainted notes. Appellant kept the min the
right trouser's pocket. After the signal PW.7, S.B. Shanker Inspector of the
Central Bureau of Investigation came and sodium carbonate test was conducted on
the right hand fingers and the right trousers pocket and the solution turned pink.
8.
PW.7,
S.B. Shanker, Inspector of the Central Bureau of Investigation had stated in
his evidence that on 19th April,1995 he received a complaint against the
appellant of demanding illegal gratification from the contractor and he conducted
a pre-trap proceedings on 20th April, 1995 at about8 a.m. in the presence of
PW.2, G.T. Kumar and others. He has further stated that he laid the trap on the
same day at11.45 a.m. and recovered the tainted currency notes under the office
table of the appellant when the appellant had thrown the said notes on being
questioned by him. In the face of the specific and positive evidence of these
witnesses which cannot be said to be inherently improbable, the plea of the
appellant that the prosecution case is fit to be rejected on the ground of improbability
does not appeal to us. It is accordingly rejected.
9.
As
regards the decision of this Court in the case of Nanjudiah (supra) the same
does not advance the case of the appellant. Whether the case of the prosecution
deserves acceptance or not is decided on appreciation of evidence and no hard
and fast rule can be laid in this regard. In the said case the Court on fact
did not accept the case of the prosecution. Here in the present case as stated
above there does not seem any reason to reject the evidence of the contractor,
the shadow-witness and the Inspector who laid the trap.
10.
10.
Mr. Rai, then submits that the conviction of the appellant is not fit to be
sustained only on the evidence of the contract or without any corroboration. He
submits that the contractor is an accomplice and, therefore, before sustaining
the appellant's conviction it is essential that his evidence is corroborated by
evidence of other witnesses. Reference has been made in this connection to a
decision of this Court in the case of Panalal Damodar Rathi vs. State of
Maharasthra, (1979) 4 SCC 526 and which attention has been drawn to paragraph 9thereof
which reads as follows: "It will be seen that the version of the complainant
that the appellant asked the complainant whether he had brought the money and that
the complainant told him that he had and that the appellant asked him to pay
the money to the second accused is not spoken to by the panch witness PW 3.
According to panch witness on the complainant asking the appellant whether his
work will be achieved, the appellant assured him in the affirmative and the
appellant told the complainant what was to be given to the second accused. It
is significant that PW 3 does not mention about the appellant asking the
complainant whether he had brought the money and on the complainant replying in
the affirmative asking the complainant to pay the money to the second accused.
Omission by PW 3 to refer to any mention of money by the appellant would show
that there is no corroboration of testimony of the complainant regarding the
demand for the money by the appellant. On this crucial aspect, therefore, it
has to be found that the version of the complainant is not corroborated and,
therefore, the evidence of the complainant on this aspect cannot be relied
on."
11.
11.
Yet another decision on which reliance is placed is the decision of this Court
in the case of Meena (Smt) W/O Balwant Hemke v. State of Maharashtra, (2000) 5
SCC 21in which it held as follows: "The corroboration essential in a
case like this for what actually transpired at the time of the alleged occurrence
and acceptance of bribe is very much wanting in this case. Even the other
panch witness, PW 5 categorically admitted that even as the Inspector of
Police, PW 6 arrived, the appellant gave the same version that PW 1 tried to
force into her hands the currency note which she turned down by pushing it
away, and his evidence also does not lend credibility to the case of the
prosecution. The contradictory version of PW 1 of the very incident when
earlier examined in departmental proceedings renders his testimony in this case
untrustworthy. PW 3, the Head Copyist, seems to be the brain behind all this
and that PW 1 as well as Jagdish Bokade appear to be working as a group in this
affair and despite the blunt denial by PW 3, his closeness to PW 1 and Jagdish Bokade
stands well substantiated. All these relevant aspects of the case seem to have
been completely overlooked by the courts below."We do not find any
substance in the submission of Mr. Rai. The word accomplice has not been
defined under the Evidence Act and therefore presumed to have been used in the
ordinary sense. A person concerned in the commission of crime, a partner in
crime and associate in guilt is an accomplice. He takes part in the crime and
is privy to the criminal intent. In our opinion a witness forced to pay on
promise of doing or forbearing to do any official act by a public servant, is
not a partner in crime and associate in guilt and therefore cannot be said to
be accomplice. It has long been rule of practice, which has become equivalent
to rule of law, that the evidence of an accomplice is admissible but to be
acted upon, ordinarily requires corroboration. Contractor who gave bribe,
therefore, can not be said to an accomplice as the same was extorted from him. Reference
in this connection can be made to a decision of this Court in the case of
Dalpat Singh and another v. State of Rajasthan, AIR 1969 SC 17, in which it has
been held as follows: "We are unable to accept the contention of the learned
counsel for the appellants that PWs 1,2,3,4 and 17 and other prosecution
witnesses to whose evidence we shall presently refer, should be considered as
accomplices and therefore their evidence is required to be corroborated in
material particulars before being accepted. On the proved facts, even those who
gave illegal gratification to the appellants cannot be considered as
accomplices as the same was extorted from them. Though PWs 1,2,4 and 17 can be
considered as interested witnesses as regards their evidence relating to trap,
as a matter of law, it is not correct to say that their evidence cannot be
accepted without corroboration, see State of Bihar v. Basawan Singh 1959 SCR
195 = (AIR 1958 SC 500) (underlining ours)
12.
Further
corroboration of evidence of a witness is required when his evidence is not
wholly reliable. On appreciation of evidence, witnesses can be broadly
categorized in three categories viz., unreliable, partly reliable and wholly
reliable. In case of a partly reliable witness, the court seeks corroboration
in material particulars from other evidence. However in a case in which a
witness is wholly reliable, no corroboration is necessary. Seeking
corroboration in all circumstance of the evidence of a witness forced to give
bribe may lead to absurd result. Bribe is not taken in public view and,
therefore, there may not be any person who could see the giving and taking of
bribe. As in the present case, a shadow witness did accompany the contractor
but the appellant did not allow him to be present in the chamber. Acceptance of
this submission in abstract will encourage the bribe taker to receive illegal
gratification in privacy and then insist for corroboration in case of prosecution.
Law cannot countenance such situation. In our opinion it is not necessary that
the evidence of a reliable witness is necessarily to be corroborated by another
witness. Not only this corroboration of the evidence of a witness can be found
from the other materials on record. Here in the present case there does not seem
any reason to reject the evidence of the contractor PW.1, M. Venka Reddy. His
evidence is further corroborated by the evidence of the shadow-witness PW.2,
G.T. Kumar. The shadow-witness has stated in his evidence that when he entered
in the chamber, appellant was asked by the Inspector as to whether he had
received any amount from the contractor, he denied and then removed the
currency notes from his trouser's pocket and threw the same. He had further stated
that sodium carbonate test was conducted in which the solution turned pink when
the appellant's fingers and the right side trouser's pocket were rinsed. From
the aforesaid one can safely infer that the evidence of the contractor is corroborated
in material particulars by the shadow-witness.
13.
In
the case of Panalal Damodar Rathi (supra) reliedon by the appellant, the
version of the complainant was not supported by the Panch witnesses and in the
face thereof this Court gave the accused the benefit of doubt, which is not the
situation in the present case. Similarly in the case of Meena(supra), faced
with contradictory evidence and plea of the accused this Court found
corroboration necessary to uphold conviction.
14.
Mr.
Rai, lastly submits that from the evidence of the prosecution witnesses the
worst which can be said against the appellant is that currency notes were
recovered from him. That itself, in his submission, does not constitute the
offence. He submits that to bring home the charge the prosecution is required
to prove beyond reasonable doubt that the accused had demanded the illegal
gratification and accepted the same voluntarily. In support of the submission
reliance has been placed on a decision of this Court in the case of C.M. Girish
Babu v. CBI, Cochin, High Court of Kerala, 2009 (3) SCC779 and our attention
has been drawn to the paragraph 18 of the judgment which reads as follows: "18.
In Suraj Mal v. State,(Delhi Admn.) 1979 (4) SCC 725 this Court took the view
that (at SCC p. 727, para 2) 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 that the accused
voluntarily accepted the money knowing it to be bribe."Another decision on
which reliance is placed is the decision of this Court in the case of State of
Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200in which it
has been held as: "Indisputably, the demand of illegal gratification is a
sine qua non for constitution of an offence under the provisions of the Act.
For arriving at the conclusion as to whether all the ingredients of an offence
viz. demand, acceptance and recovery of the amount of illegal gratification
have been satisfied or not, the court must take into consideration the facts
and circumstances brought on the record in their entirety."
15.
We
do not have the slightest hesitation in accepting the broad submission of Mr. Rai
that demand of illegal gratification is sine qua non to constitute the offence
under the Act. Further mere recovery of currency notes itself does not constitute
the offence under the Act, unless it is proved beyond all reasonable doubt that
the accused voluntarily accepted the money knowing it to be bribe. In the facts
of the present case, we are of the opinion that both the ingredients to bring
the act within the mischief of Sections 7 and 13 (1) (d) (ii)of the Act are
satisfied. From the evidence led on behalf of the prosecution it is evident
that the appellant demanded the money from the contractor as he had passed his
bills. There is further evidence that when the contractor went along with the shadow-witness
on the date told by the appellant for payment of the bribe, appellant asked the
shadow-witness to leave the chamber and thereafter the demand for payment of illegal
gratification was made and paid. The positive sodium carbonate test vis vis the
fingers and right trousers pocket of the appellant go to show that he
voluntarily accepted the bribe. Thus there is evidence of demand of illegal gratification
and the voluntary acceptance thereof.
16.
All
the submissions made on behalf of the appellant being devoid of any substance,
we do not find any merit in this appeal and it is dismissed accordingly.
Appellant is on bail, his bail bonds are cancelled and he is directed to
surrender to serve out the remainder of the sentence.
................................................J [HARJIT SINGH BEDI]
................................................J [CHANDRAMAULI KR. PRASAD]
NEW
DELHI
NOVEMBER
25, 2010.
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