Prevention of Corruption Act,1988 |
IN THE SUPREME COURT OF INDIA
Justice V.S.Sirpurkar and Justice Deepak Verma
Crl.A. No. 261 of 2007
J U D G M E N T
V.S. SIRPURKAR, J.
1. In this Appeal, the judgment of the High Court, allowing the appeal of the respondent herein and acquitting him of the offence punishable under Section 13 (1) (d) read with Section 13 (2) and Section 7 of the Prevention of Corruption Act (hereinafter called “the Act” for short) is in challenge, at the instance of the State.
2. The respondent, at the relevant time, was working as a Senior Engineer in MIDHANI at
3. In support of its claim, the prosecution examined Preetpal Singh (PW-1), M.N. Sampath Kumar (PW-2) and other seven witnesses including R.M. Khan (PW-7), the Investigating Officer, as also, PW-8, Sanctioning Authority. The documents were also presented and were proved and on that basis, the trial proceeded. The defence of the respondent-accused was that of denial. He examined himself as DW-1 and contended that he was framed, more particularly, by his superior officers. He particularly pleaded that there were many discrepancies including the discrepancy in the timing of the First Information Report (FIR). He also pleaded that there was no question of his preparing the detailed programme and in fact, the said programme was to be prepared by Preetpal Singh Sodhi (PW-1), the contractor himself and there was no question of his obliging the complainant by preparing the said programme. He pointed out that there was no question of obliging by signing the contract because the contract was already awarded in favour of Preetpal Singh Sodhi (complainant). He, therefore, described the whole prosecution case as false. The learned Trial Judge, however, found the respondent herein guilty and he was convicted for the offence charged.
4. The respondent-accused, therefore, filed an appeal before the High Court and the High Court acquitted the respondent-accused. It is this acquittal which is challenged before us in the present case.
5. Shri Naresh Kaushik, Learned Counsel appearing on behalf of the appellant urged that the High Court has erred in allowing the appeal even when it was proved that the amount of bribe has passed from Preetpal Singh Sodhi (complainant) to the respondent-accused and the respondentaccused had accepted the same. The Learned Counsel pointed that the High Court would have raised the presumption under Section 20 of the Act and it should have been further noted by the High Court that the respondent-accused had not explained as to why he had accepted the amount, which was not his lawful deliberation. It is further argued by the Learned Counsel that while allowing the appeal, the High Court had nowhere shown as to how the Trial Court had gone wrong. The Learned Counsel further urged that the respondent-accused had no business to go to Taj Mahal Hotel for doing an official work of getting the signatures of the complainant (PW-1) and that it was strange that the official work should have been done at Taj Mahal Hotel. The Learned Counsel further urged that it was clinchingly proved by the prosecution that the bribe was demanded by the respondent-accused, who was a public servant and in pursuance of the demand, he also accepted the bribe of Rs.5,000/-. It was pointed out that the witnesses had absolutely no reason to speak against the respondent-accused and their disinterested testimony was bound to be accepted and was rightly accepted by the Sessions Judge and yet even without finding any fault with the evidence, the High Court chose to acquit the respondent-accused on imaginary grounds.
6. As against this, Shri G. Prakash Rao, Learned Counsel appearing on behalf of the defence supported the judgment of the High Court and pointed out that the story of the prosecution was extremely unnatural. He also pointed out that L.N. Das (PW-5) was inimical towards the respondent-accused, therefore, he was framed. He further pointed out that there was absolutely no reason for the respondent-accused to demand bribe, as the contract was already awarded in favour of Preetpal Singh Sodhi (complainant) and the only remaining formality was the preparation of the programme, which had to be done by Preetpal Singh Sodhi (complainant) himself. In such circumstances, there was no occasion for demanding any bribe as the respondent-accused was not in a position to oblige Preetpal Singh Sodhi (complainant) in any manner. Learned Counsel urged that there was no question of raising the presumption under Section 20 of the Act, as such, presumption could not be raised where the respondent-accused was charged with the offence punishable under Section 13 (1) (d) of the Act. Lastly, the Learned Counsel urged that where two views are possible, the Court should be slow in upsetting the judgment of acquittal.
7. The High Court proceeded initially on the basis of the story that the agreement had to be got signed by Preetpal Singh Sodhi (complainant- PW-1), the Contractor within 19 days and, therefore, L.N. Das (PW-5) had asked the respondent-accused to take the signatures of Preetpal Singh Sodhi (PW-1) on the agreement before that date. The High Court further noted that initially the respondent-accused was hesitant to approach Preetpal Singh Sodhi (PW-1), but later on, he agreed to do so. According to the High Court, L.N. Das (PW-5) had admitted in his cross-examination that since the time of contract was likely to expire, he requested the respondent-accused to get it signed and as such, there was pressure on the part of the management to get the agreement signed within time. In our opinion, this theory of pressure was of no consequence and could not be viewed as helpful to the defence. Even if the contract was to be got signed by Preetpal Singh Sodhi (PW-1), the fact remains that for the purpose of contract, ultimately, the respondent-accused had to give the detailed programme of work. The signatures of Preetpal Singh Sodhi (PW- 1) could have been obtained on the agreement and at that time, it was necessary that the work schedule was ready, which was to be prepared by the respondent-accused and it was for that purpose that the respondentaccused demanded the money. It must be noted here that after putting the signatures of Preetpal Singh Sodhi (complainant) on the agreement and after preparation of the work schedule, the contract would be complete and the complainant would get the benefit of huge contract worth about Rs.35 lakhs. The bribe was for this purpose. The signing of the contract, preparation of the work schedule were mere formalities. The High Court has not properly viewed at this position that the bribe was demanded for completing the contract, worth about Rs.35 lakhs.
8. The High Court further committed an error in presuming that the amount of Rs.5,000/-, which was the first installment of Rs.50,000/- was to be paid for signing the agreement and it was to be paid at Taj Mahal Hotel, Narayanguda,
9. When Preetpal Singh Sodhi (complainant) was waiting for the respondent-accused at Taj Mahal Hotel and when the respondent-accused came to the Hotel, the respondent-accused asked as to whether the complainant had got the money. This could not be said to be a demand, but was merely an assurance that the money was available. It must be noted here that it took almost 3-4 hours for them to prepare the agreement and work schedule and to get the signatures. What has to be noted is that even after the signatures, the agreement was not handed over to Preetpal Singh Sodhi (PW-1), and instead, the respondent-accused took it near the scooter and it was there that the demand for money was made. There is undoubtedly some mix-up as to where the demand was made because it has not come specifically in the Examination-in-Chief of Preetpal Singh Sodhi (PW-1) that the respondent-accused demanded the money near the scooter. The Learned Counsel for the respondent-accused tried to take advantage of this situation. However, we are not impressed by this at all, as the respondent-accused had already demanded the money and even this witness mentioned about the demand of money as soon as he met the respondent-accused. The High Court, without going into the details of the evidence, has merely come to the conclusion that no demand was made. Now, if no demand was made, there was no reason for the respondentaccused to accept the money offered by the complainant. The respondent-accused cannot deny that the money was actually touched by him. There is absolutely no cross-examination on the fact that when he dipped his finger in the solution of Sodium Carbonate, same turned pink, which was clear indication that he touched the money and handled it. There is no explanation, whatsoever, of this second fact as to how the fingers of the respondent-accused were soiled with phenolphthalein. This is the second circumstance, which was a very major circumstance, that the High Court has failed to note and explain, which shows that the High Court has taken a very casual attitude. We have scanned the judgment of the High Court very carefully and find that the High Court has not, in any manner, considered the factum of solution of Sodium Carbonate turning pink when the fingers of the respondent-accused were dipped. In fact, that was a major circumstance and the most important incriminating circumstance, which was bound to be explained by the respondentaccused.
10. At this juncture, we must also express as to how the presumption was completely ignored by the High Court. Section 20 of the Act provides:- 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) Not relevant.
(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 inference of corruption may fairly be drawn.”
It was argued, though feebly, that the presumption could not be drawn as the charge in this case was under Section 13(2) read with Section 13(1)(d) of the Act. It was pointed out by the Learned Counsel for the respondent-accused that Section 13(1)(d) did not attract the presumption under Section 20 of the Act. What is being ignored by the Learned Counsel for the respondent-accused is that the charge was not only under Section 13(1)(d), but also under Section 7 of the Act. Section 7 of the Act is as under:-
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.”
Now, there can be no dispute that prosecution in this case was alleging that the respondent-accused had accepted or obtained from Preetpal Singh Sodhi (complainant), gratification, which was other than the legal remuneration as a motive or reward for signing the contract or, as the case may be, for providing the schedule of work, so as to complete that contract. Therefore, there was no question of the presumption not being there, once it was proved that the respondent-accused had accepted the illegal gratification. Now, the evidence is very clear that firstly, the fingers of the respondent-accused were found to be soiled, which could not have been so soiled had he not touched the currency notes offered by the complainant; and secondly, it was found that those very currency notes were kept in the bag attached to the scooter.
“As agreed, I paid M.O. 1 to the accused.”
Now, the words “as agreed” in the deposition of the PW-1 (complainant) are extremely important, as the same signify that there was an agreement between the respondent-accused and the complainant that the complainant had agreed to pay Rs.5,000/- as bribe for the contract, its signing and for providing the schedule of work. The complainant further goes on to say that “the accused kept the money in the front bag of the scooter”. Now, when we see the cross-examination of Preetpal Singh Sodhi (PW-1), it is clear that nothing has been asked in respect of this version. It was feebly suggested to Preetpal Singh Sodhi (PW-1) that no amount was paid before executing Exhibits P-5 to P-8 or that it was not paid inside the hotel soon after the agreement. The witness had clarified on this situation that the amount was paid in the parking area. He very specifically mentioned in his cross-examination that he gave Rs.5,000/- with his right hand and the respondent-accused accepted the money with his right hand. It has also come out in the evidence that the amount of Rs.5,000/- was taken out of the front bag of the scooter only after the hand wash test was completed. Some minor insignificant omissions have been brought, which were of no consequence. In the whole cross-examination, the story of demand of the respondent-accused prior to the contract and the acceptance by the respondent-accused near the scooter stand, has not at all been demolished. This, the High Court has completely ignored. Once this story becomes acceptable, there is no other go, but to raise a presumption under Section 20 of the Act. This important provision of Section 20 was also ignored by the High Court. This was again not a case falling under Section 20(3) of the illegal gratification from being trivial, so as not to raise presumption – inference of corruption. It was a substantial amount. Therefore, Section 20 of the Act could not have been ignored. The High Court has committed an error in ignoring this provision and ignoring the fact that the presumption had to be raised, and on that basis, it was up to the respondent-accused to explain as to how the amount came in his possession. In our opinion, this amounts to a perverse appreciation of evidence. This is the third aspect, on which the High Court has faltered.
11. The evidence of Preetpal Singh Sodhi (complainant) was fully corroborated by the evidence of M.N. Sampath Kumar (PW-2), who was a Panch witness and who was to accompany the complainant. Even this witness specifically says that after the signatures were obtained on Exhibits P-5 to P-8, the respondent-accused collected the books and came to the parking place, where his scooter was parked and he was followed by the complainant and that when Preetpal Singh Sodhi (PW-1) asked for a copy of the agreement book already signed, the respondent-accused demanded money from Preetpal Singh Sodhi (PW-1) and Preetpal Singh Sodhi (PW-1) removed M.O. 1, i.e., money from his left hand pocket. The respondent-accused collected the money and handed over the copy of the agreement through his right hand. The respondent-accused placed the money in the scooter bag and the complainant (PW-1) gave pre-arranged signal. It can be said that there is some discrepancy about the hand, by which the respondent-accused accepted the amount, but that goes into the backdrop on account of the clear evidence of R.M. Khan (PW-7), the Investigating Officer. R.M. Khan (PW-7), in his evidence, has referred to the earlier demonstration, going of Preetpal Singh Sodhi (PW-1) and M.N. Sampath Kumar (PW-2) to the Taj Mahal Hotel, the instructions given to the complainant (PW-1) and the witness and the coming of the respondent-accused at about 6’O clock. This officer was all through watching the happenings. He also then proceeds to say that Preetpal Singh Sodhi (PW-1) removed the currency notes from his pant pocket and the same were given to the respondent-accused, who took the same and kept it in the scooter bag and then the respondent-accused gave a copy of the agreement to Preetpal Singh Sodhi (PW-1). On the signal being received from M.N. Sampath Kumar (PW-2), the respondent-accused was caught and the money was recovered after the demonstration of the Sodium Carbonate solution. The cross-examination of this witness, though lengthy, is perfunctory and serves no purpose. His basic story has remained unshaken. Some insignificant contradictions as to who gave the signal were brought in the evidence of this witness, but those would not affect the otherwise credible evidence of this witness. Therefore, this was a case where the evidence of Preetpal Singh Sodhi (PW-1) was totally corroborated by the evidence of M.N. Sampath Kumar (PW-2) and R.M. Khan (PW-7). All this has been totally lost sight of by the High Court.
12. Much was said about the scooter or the scooter bag not being seized. We do not see as to how that would have helped, once it was proved that the respondent-accused had accepted the money. Merely because it was kept in the scooter by the respondent-accused, in our opinion, was an insignificant circumstance. The fact of the matter is that the money was recovered from the scooter bag. It would have certainly been better had the scooter and scooter bag been seized, however, in our opinion, the non-seizure of the bag and scooter will not affect the prosecution case.
13. Much was made of the evidence of L.N. Das (PW-5). The High Court has gone to the extent of saying that it was at the instance of L.N. Das (PW-5) that the respondent-accused was falsely implicated. We have scanned the evidence of L.N. Das (PW-5) very carefully, but we find nothing in the evidence of this witness to suggest the inference drawn by the High Court. The witness merely gave the background, in which the respondent-accused was asked to get the signatures and he also undoubtedly has said that one B. Ashok Kumar was kept for this work, however, since the respondent-accused was made in charge of the work, the respondent-accused was asked to collect the signatures, so as to get the contract completed. We do not find anything in the evidence or the cross-examination of this witness to suggest that it was at the instance of this witness that the respondent-accused was falsely implicated. The inference drawn by the High Court has absolutely no basis and only suggests that the High Court has read something in his evidence, which was not there at all. Evidence of A.K. Taneja (PW-8) is merely formal and nothing has been addressed to us as regards his evidence. He had given the sanction for prosecution. In fact, no arguments were addressed on the question of sanction.
14. The evidence of the respondent-accused is also perused by us, as much was made by the High Court of that evidence. The High Court, without even discussing the evidence in details, has gone to the extent of saying that the evidence of G. Premraj (respondent-accused & DW-1) has the effect of establishing the defence of the respondent-accused by preponderance of probabilities. The respondent-accused admits here in his evidence that on 27.5.1998, Preetpal Singh Sodhi (PW-1) telephoned him at about 1’O clock, asking him to come to Taj Mahal Hotel for signing the agreement. One wonders as to why the respondent-accused chose to accept this suggestion on the part of the Preetpal Singh Sodhi (PW-1) even if it is held to be true. Preetpal Singh Sodhi (PW-1), however, disowns telephoning the respondent-accused. The respondent-accused has raised a theory that when he returned to his scooter for proceeding after the signatures were obtained, Preetpal Singh Sodhi (PW-1) approached him and forcibly thrust the amount in his hands. Now, we fail to follow as to what could prompt Preetpal Singh Sodhi (PW-1) to thrust the money into the hands of the respondent-accused. In our opinion, his evidence was nothing, but a poor attempt to explain the change of colour of the Sodium Carbonate solution after his fingers were dipped in it. Such theory of thrusting the notes cannot be believed at all.
15. The Sessions Judge in this case, after discussing the evidence, has given cogent findings. In
16. We do not find, in comparison, any reasons, much less, good reasons, having been given by the High Court for its disagreeing with the judgment of the Trial Court.
17. We are quite alive to the fact that unless the judgment of acquittal tends to be perverse or unless the inferences drawn in the acquitting judgment were not at all reasonable, possibly the acquittal should not be upset. However, in this case, as we have already pointed out, there was no scope for recording of finding of acquittal.
18. For all these reasons, we are unable to agree with the impugned judgment of the High Court. We would, therefore, choose to set aside the same and restore the judgment of the Trial Court.
19. Last, but not the least, we are extremely surprised to read the last portion of the judgment of the High Court, wherein, the High Court has honourably acquitted the accused and directed his reinstatement as senior most Civil Engineer, Civil Department, MIDHANI with all usual retiral monetary benefits inclusive of restoration of seniority etc. with immediate retrospective effect. We wonder as to under what powers, the High Court has acted. This was certainly not the jurisdiction on the part of the High Court, which had only to find whether the respondent-accused was guilty or not of the offence alleged against him. It has come in evidence that a full-fledged departmental enquiry was conducted against the accused, wherein he was found guilty. We are shocked to see the step taken by the High Court in straightaway writing off the findings in departmental enquiry without any justification. This aberration on the part of the High Court speaks of its wholly incorrect approach.