27 Jan 2121

Mere receipt of an amount is not sufficient to fasten guilt in absence of any evidence with regard to “demand” and “acceptance” of the amount as illegal gratification for constituting an offense under the Prevention of Corruption Act, 1988 - Bombay High Court

Case : Raju Shantaram Kakphale v. State of Maharashtra, Through Anti Corruption Bureau, Thane Criminal Appeal No. 535 of 2016

Court : Bombay High Court

Bench : Justice Sandeep K. Shinde

Decided on : 27 Jan 2121

Relevant Statutes

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

Section 65B of the Indian Evidence Act, 1972

Brief Facts and Procedural History

1. Mr. Tapan, the Complainant was prosecuted and acquitted by the Judicial Magistrate First Class in a case on 31 January 2008. The complainant applied for certified copies, on the same day. The copy of the judgment was typed by the stenographer on 3 February 2008. The complainant paid copying charges and copies were to be delivered on 4 February 2008.

2. Complainant deposed, the Appellant who was working as Peon in Thane District Court demanded ₹2,000/- from him for supplying the certified copies of the judgment urgently and asked him to bring money the next day. On 1 February 2008, the accused repeated the demand and he paid ₹300/-. At that time, the accused told him that unless the full sum demanded was not paid; he would not receive copies of the judgment and may have to wait for a month. He paid ₹1,000/- to the accused since he needed the copies urgently, to file proceedings in the High Court, whereupon the accused gave his mobile contact number to him on the chit and asked him to call and meet on 2 February 2008.

3. Shortly thereafter, the complainant approached the Anti-Corruption Office at Thane. Mr. Powar verified the complaint in the presence of panchas and handed over currency notes to the Complainant after applying anthracin powder to it. Accordingly, verification and pre-trap panchanama were drawn and permission of the District Judge was sought to lay the trap. Investigating Officer asked the Complainant to contact the accused on his mobile and conversation was recorded in the digital voice recorder. Mr. Rathod, Pancha witness accompanied the complainant. The other raiding party members waited outside the court building.

4. Complainant deposed that, the Appellant enquired with him, whether he had brought the money. He paid ₹800/- to the Appellant. The conversation was recorded on the digital voice recorder which was attached to the shirt pocket of the Complainant. After giving signal, the raiding party recovered tainted money found on the person of the Appellant which had traces of anthracin powder.

5. The Additional Sessions Judge-1 and Special Judge (Prevention of Corruption Act), Thane held the Appellant guilty for demanding and accepting ₹300/- as illegal gratification for supplying certified copies of the judgment to the Complainant. Thus, he was sentenced for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

6. Appellant preferred an appeal against the said conviction.

Issue of the Case

Whether the prosecution proved that the appellant had demanded illegal gratification other than legal remuneration as a motive or a reward to favour the complainant for urgently supplying the copies of the judgment which was pronounced in the open Court on 30 January 2008?

The Observations of the Court

The High Court of Bombay observed that:

1. When the Certified Copy Section was certain to given a certified copy, if ready, on 4th February 2008, why the Complainant would pay ₹1,000/- to the Appellant on 1 February 2008.

2. The complainant was familiar with the court procedure, so much so that, he had filed one case against a constable. Moreover, the complainant was also prosecuted in a Regular Criminal case. It is, therefore, unclear why a person familiar with court procedure, would approach the Appellant either on 31st or 1st for a certified copy when the copying section was to give a copy on 4 February 2008. No prudent person would approach and pay Court peon either on 1 February 2008 or 2 February 2008 when the copy of the judgment was typed on 3 February 2008.

3. Evidence of Mr. Rathod, Pancha witness who had accompanied the complainant on 2 February 2008 disclosed that, when Complainant told the Appellant that he had brought the money, the latter brought xerox copies of the judgment and order. This statement of facts was unacceptable as on 2 February 2008 when the trap was laid, a copy of the judgment was not available because it was typed on 3 February 2008. Even assuming, xerox copy was brought by the Appellant, Investigating Officer ought to have seized the copy and produced it before the Court.

4. The Investigating Officer had stated that after recording the conversation between the Complainant and the Appellant on the digital voice recorder, it was stored on the Compact Disc, and the conversation in the digital voice recorder was deleted. In the cross-examination, the Investigating Officer admitted that the person who had transferred dated from Digital Voice Recorder to Compact Disc had not given a report/certificate nor had the prosecution examined him.

5. The conversation stored in the Compact Disc being ‘electronic evidence’ of secondary nature, Certificate under Section 65B of the Indian Evidence Act, 1972 is mandatory. The prosecution did not produce such a Certificate. Therefore, the alleged conversation could not be considered.

6. The evidence rendered the prosecution’s case, doubtful and unclear on both the facts in issue i.e. “demand” and “acceptance”. Illegal gratification is sine-qua-non for constituting an offence under the Prevention of Corruption Act, 1988. Mere recovery of tainted money is not sufficient. Mere receipt of amount by Appellant was not sufficient to fasten guilt in absence of any evidence with regard to “demand” and “acceptance” of the amount as illegal gratification.

The Decision Held by the Court

The High Court of Bombay allowed the appeal and held that:

1. The prosecution could not prove beyond a reasonable doubt that the appellant demanded and accepted illegal gratification as a reward for supplying certified copies of the judgement to the Complainant.

2. The conviction was quashed and set aside.

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