03 Feb 2121

Mere recovery of tainted money, divorced from the circumstances under which such money and article is found is not sufficient to convict the accused for accepting illegal gratification under Prevention of Corruption Act, 1988 - Supreme Court of India

Case : N. Vijayakumar v. State of Tamil Nadu Criminal appeal Nos. 100-¬101 of 2021

Court :

Bench : Justice Ashok Bhushan , Justice R. Subhash Reddy and Justice M.R. Shah

Decided on : 03 Feb 2121

Relevant Statutes

Sections 7, 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988

Section 378 of the Code of Criminal Procedure, 1973

Brief Facts and Procedural History

1. The appellant was working as Sanitary Inspector in the 8th Ward of Madurai Municipal Corporation. He was charge-sheeted under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 alleging that he demanded an amount of ₹500/- and a cell phone as illegal gratification as a motive or reward to do an official act in the exercise of his official function, from PW2 (Thiru. D. Gopal), who was working as Supervisor in a Voluntary Service Organisation called Neat And Clean Service Squad (NACSS), which was given sanitation work on contract basis in Ward No.8 of Madurai Corporation.

2. The appellant had pleaded not guilty. Therefore, he was tried before the Special Court for the aforesaid alleged offences. The trial court acquitted the appellant.

3. Aggrieved by the judgment, State had preferred an appeal before the Madurai Bench of Madras High Court. The Madurai Bench by impugned judgment and orders, reversed the acquittal, and convicted the appellant for the offences under Section 7, 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and imposed the sentence of rigorous imprisonment for one year and imposed the penalty of ₹5000/.

4. The appellant appealed against the conviction recorded and sentence imposed before the Apex Court of India.

Issue of the Case

Whether the High Court of Madras was correct in reversing the judgment of acquittal pronounced by the trial court?

The Observations of the Court

The Honourable Supreme Court of India observed that:

1. It was evident from the deposition of PW2, PW3 (official witness Thiru Shanmugavel), PW5 (Ravikumaran), and PW11 (Deputy Superintendent of Police, Bodinayakkanur SubDivision, who was working as the Deputy Superintendent of Police, Vigilance and Anticorruption Wing, Madurai during the relevant time) that they reached the office of the accused at 05:30 p.m. on 10.10.2003, and the appellant was not in the seat then and they waited for him. People were moving out and in from the office of the appellant. The appellant came to the office at 05:45 p.m. on his bike.

2. PW2 deposed that the appellant had made a demand for ₹500/- and cell phone in front of other witnesses, PW3 and PW5. He thus handed over the powder-coated currency notes and cell phone which were received by the accused and kept in the left-side drawer of the table. He stated that he met the accused earlier several times and again when he met on 09.10.2003 along with PW5, the appellant demanded ₹500/- and a cell phone as illegal gratification. In the cross-examination PW2, has admitted that he never saw the accused earlier and the appellant has made a demand when he met firstly on 09.10.2003 and that he was ill-treated by the accused several times earlier as he belonged to the scheduled caste community. From his deposition, it is clear that there were ill feelings between the appellant and the PW2.

3. After handing over currency and cell phone, PW2 along with other witnesses who have accompanied him they came out of the office and signalled the inspector. PW2 also admitted that he was not having any details regarding the purchase of a cell phone. It was also clear that though the trap was at about 05:45 p.m., the phenolphthalein test was conducted only at 07:00 p.m. There is no evidence to show why such an inordinate delay. The office of the Town Assistant Health Officer and other officials of the department are also near to the office of the appellant.

4. PW3 deposed that only on demand of anti-corruption officials, the accused had taken and produced the money and cell phone, which was in the drawer of the table.

5. The Circle Health Inspector of Madurai Corporation (PW4) deposed in the cross-examination that he had no idea what was going on before he reached the office and that he was not aware of Rs.500/and cell phone, by whom and when it was kept. He too added that only in the direction of the inspector the appellant has taken out the money and the cell phone.

6. The deposition of PW5 was also in similar lines.

7. PW11 stated that the appellant was tested with the prepared Sodium Carbonate Solution at 07:00 p.m. After completion of the phenolphthalein test, the statement of the appellant was not recorded as required under Rule 47 Clause 1 of the Vigilance Manual. He deposed in the cross-examination that he did not test the hands of the appellant immediately after payment and handing over of the money and cell phone.

8. Mere recovery of tainted money, divorced from the circumstances under which such money and article is found is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Due to the material contradictions as noticed above in the deposition of key witnesses, the appellant deserved the benefit of the doubt. It has to be proved beyond a reasonable doubt that the accused voluntarily accepted money knowing it to be a bribe. Even the presumption under Section 20 of the Prevention of Corruption Act, 1988 can be drawn only after the demand for and acceptance of illegal gratification is proved. It is also fairly well settled that the initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. [B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55]

9. Under Section 378 of the Code of Criminal Procedure, 1973 no differentiation is made between an appeal against acquittal and the appeal against conviction.

10. In Chandrappa & Ors. v. State of Karnataka, (2007) 4 SCC 415the Honourable Supreme Court laid down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal:

11. An appellate court has full power to review, re-appreciate, and reconsider the evidence upon which the order of acquittal is founded.

12. 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 conclusion, both on questions of fact and of law.

13. 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 like “flourishes of language” to emphasize 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 conclusion.

14. 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.

15. If two reasonable conclusions are possible based on the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

16. In Murugesan & Ors. v. State through Inspector of Police (2012) 10 SCC 383 the Supreme Court held that only in cases where the conclusion recorded by the trial court is not a possible view, then only High Court can interfere and reverse the acquittal to that of conviction.

17. In Hakeem Khan & Ors. v. State of Madhya Pradesh, (2017) 5 SCC 719 it was held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the verdict of the trial court cannot be interdicted and the High court cannot supplant over the view of the trial court.

18. The Supreme Court thus, opined that it can be said that acquittal is a “possible view”. Even assuming another view is possible, the same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged.

19. The trial court disbelieved PW2, PW3, and PW5 by recording several valid and cogent reasons, but the High Court, without appreciating the evidence in proper perspective, reversed the view taken by the trial court. The High Court also did not record any finding whether the view taken by the trial court was a “possible view” or not. Though the High Court viewed that PW2, PW3, and PW5 could be believed unless it was held that the view was taken by the trial court disbelieving the witnesses was not a possible view, the High Court ought not to have interfered with the acquittal recorded by the trial court. Given the material contradictions, the prosecution could not prove the case beyond a reasonable doubt to convict the appellant.

The Decision Held by the Court

The Honourable Supreme Court allowed the appeal to set aside the judgments of conviction and orders of sentences and ordered the release of the appellant from the custody.

Click here to view/download the judgement >