Rajasthan High Court - Jodhpur
Suresh Kumar vs State on 25 May, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 297/2009
Suresh Kumar
----Appellant
Versus
State
----Respondent
Connected With
S.B. Criminal Appeal No. 299/2009
Lal Chand
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. M.S. Purohit with
Ms. Manisha Purohit
Mr. Jagmal Singh Choudhary, Sr. Adv.
Assisted by Mr. Pradeep Choudhary
For Respondent(s) : Mr. Anda Ram Choudhary, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved On: 11/05/2022 Pronounced On: 25/05/2022
1. Both the Criminal Appeals has been preferred under Section 374 Cr.P.C. against the Judgment dated 16.04.2009 passed by District and Sessions Judge (Anti Corruption Act Cases), Bikaner in Sessions Case No. 29/2005 with the following prayers:-
In S.B. Criminal Appeal No. 297/2009:
"It is, therefore, respectfully prayed that this appeal may kindly be allowed and accused appellant may be acquitted from all the charges leveled against him."
In S.B. Criminal Appeal No. 299/2009:
"It is,therefore, most respectfully prayed that this appeal may kindly be allowed, the judgment/order of conviction and sentence passed by the learned Session, A.C.D. Cases, Bikaner dated 16.04.2009 may kindly be quashed and (Downloaded on 25/05/2022 at 09:09:52 PM) (2 of 23) [CRLA-297/2009] set-aside and the accused-appellant may kindly be acquitted for the alleged charges leveled against him."
2. The controversy in both the appeals are common, and the facts in brief of the same, as placed before this Court by learned counsel for appellants are that one F.I.R. was lodged on 24.06.2004 by Shri Amar Singh (P.W.1), stating that he went to the Anti - Corruption Office at Hanumangarh, where he submitted an application stating therein that, about 14-15 bighas of land is situated at 22 PBN in his father's name, and that there was also an electricity connection in the name of his father, of which when the dues towards electricity bills were left unpaid, the electricity connection was discontinued. And that, due to the old age of his father, the complainant was managing the agricultural work on the said land, and with a view to restart the electricity connection, he sought to pay the unpaid dues towards the pending electricity bills, and therefore made the said application. And that, he went to one A.E.N., and later on met with J.E.N. Shri Lal Chand, who told him to meet with his Babu (LDC) Suresh Kumar, and that Rs. 45,000 will be required of him towards government expenses and that Rs. 20,000/- will be required from him, as bribe. And that the unwilling complainant, went to the concerned police authorities, who gave him a tape-recorder and ararnged trap proceedings wherein the complainant, in his T-shirt pocket, went with Rs. 10,000/- in cash, upon which the Addl. S.P. had smeared phenolphtalein powder, to meet the accused. And that, the complainant, at the electricity department, paid Rs. 10,000/- to Suresh Kumar, and when the concerned police authorities apprehended him, the notes recovered were found to be the same notes smeared with the phenolphtalein powder. And that, (Downloaded on 25/05/2022 at 09:09:52 PM) (3 of 23) [CRLA-297/2009] subsequently the A.C.B. authorities filed charge sheet against the appellants for offences under Sections 7, 13 (1) (d) and 13 (2) P.C. Act and 120-B I.P.C. And that thereafter, charges were framed against them, the prosecution examined the prosecution witnesses, and exhibited and proved documents Ex. P-1 to Ex. P-
49.
3. Learned counsel appearing on behalf of the appellants jointly submit that the statements of the accused appellants were recorded under Section 313 Cr.P.C. and they denied the allegations of the prosecution against them, in the following manner:-
3.1 Suresh Kumar (appellant in the S.B. Criminal Appeal No. 297 of 2009; hereinafter referred to as 'the first appeal') stated that he did not make any demand of money from the complainant as bribe for himself and the Junior Engineer, but that the electricity bill of Rs. 4,205/- at 18% interest were due from from the complainant, which were pending dues towards their unpaid electricity bills, and that the complainant had deposited the money solely for that purpose only.
3.2 Lal Chand (appellant in S.B. Criminal Appeal No. 299/2009;
hereinafter referred to as 'the second appeal') stated that he neither made any demand for bribe from the complainant, neither did he accept the same from the complainant, and that he further stated that he did not direct or tell Suresh Kumar to demand/accept any bribe from the complainant on his behalf, and that he was not present on the spot on the day when the trap proceedings were arranged and the Suresh Kumar was apprehended by the A.C.B. authorities.
(Downloaded on 25/05/2022 at 09:09:52 PM)
(4 of 23) [CRLA-297/2009]
4. Learned counsel on behalf of the appellants further submit that both the appellants were wrongly convicted by the learned Court below vide the impugned order dated 16.04.2009.
5. Learned counsel on behalf of the appellants made the following submissions:-
5.1 That the appellant in the first appeal, did not make a demand for a bribe or illegal gratification of any sort, but informed the complainant of the amount due towards the unpaid electricity bills, on his father's name with respect to electricity connection on his father's agricultural land. And that, the amount of the unpaid dues was Rs. 4,205/- at 18% interest, which would be around Rs.
10,000/-
5.1.1 That the appellant was in fact sitting in the accounts section of the R.S.E.B. Office, when the complainant gave him the amount of Rs. 10,000/- who took the money and while making the exact calculation of the pending dues towards the electricity bills of the complainant's father, the A.C.B. authorities came to the spot and apprehended the appellant. Moreover, that the complainant / P.W. 1 admitted in his cross examination that the submitted the aforementioned application (at Ex. P-11) to restart the electricity connection on his father's land.
5.1.2 That the same has been corroborated by the prosecution witnesses, namely P.W.-3 Mohan Lal (LDC at R.S.E.B.), P.W.-4 Prem Chand Tak (A. En. at R.S.E.B.) and P.W.-6 Mansha Ram; which was also fortified by the testimonies of the attesting witnesses P.W.-2 Harfool and P.W.-5 Liladhar. 5.2 That the appellant in the second appeal, Lal Chand did not make any demand for illegal gratification nor was there any recovery of the same from him, and neither did he direct his Babu (Downloaded on 25/05/2022 at 09:09:52 PM) (5 of 23) [CRLA-297/2009] / LDC to demand or accept any illegal gratification from the complainant on his behalf. Moreover, that he was not on the spot when the trap proceedings were arranged and carried out. And that, therefore, the learned Court below has erred in convicting the appellant in the second appeal on all counts, as neither are the ingredients for the offences under the Prevention of Corruption Act made out, nor is there any evidence brought on record before the learned Court below from which an offence under Section 20-B I.P.C. is made out against the said appellant. 5.2.1 That the appellant in the second appeal, by virtue of not being present at the spot on the day of the trap proceedings, is also not part of the conversation between Shri Amar Singh, Suresh and other persons, and the same is evident from the transcript, Ex. P-2 dated 25.06.2004, brought on the record before the learned Court below. And that, the same is corroborated form the statement made by the complainant / P.W. 1 in his cross examination. And subsequent statement made by the complainant / P.W. 1 in his cross examination, stating that Lal Chand was present in the conversation that took place on the day of the trap proceedings, is false and contradictory and the same is reflected from the transcript, as above mentioned. 5.2.2 That the prosecution has not produced the certificate of correctness, as is mandatory under the provision of law laid down in Section 65-B (4) of the Indian Evidence Act, 1872 with respect to the transcripts, at Ex. P-2 dated 24.06.2004 and 25.06.2004, and Ex. P-8 dated 26.06.2004; and that in the absence of the same, the transcripts cannot be read against the said appellant in evidence.
(Downloaded on 25/05/2022 at 09:09:52 PM)
(6 of 23) [CRLA-297/2009] 5.3 That the complainant / P.W.1 Shri Amar Singh turned hostile
and has not supported the story of the prosecution.
6. Learned counsel for the appellants placed reliance on the following judgments rendered by the Hon'ble Apex Court in the cases of:-
6.1 R.P.S. Yadav Vs. C.B.I. (2015) 11 SCC 642 "In fact, we do not find any such legally acceptable evidence either from P.W. 3 or from the other so called independent witness P.W. 6 or the shadow witness in order to show that the mandatory requirement for conviction Under Sections 7 and 13(2) read with 13(1)(d) namely, the demand, acceptance and recovery was chronologically proved as against the Appellant."
6.2 B. Jayaraj Vs. State of A.P. (2014) 13 SCC 55 "In so far as the offence Under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence Under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu v. C.B.I. (2009) 3 SCC 779.
In so far as the presumption permissible to be drawn Under Section 20 of the Act is concerned, such presumption can only be in respect of the offence Under Section 7 and not the offences Under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn Under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of (Downloaded on 25/05/2022 at 09:09:52 PM) (7 of 23) [CRLA-297/2009] which the legal presumption Under Section 20 can be drawn are wholly absent."
6.3 Parveen Vs. State of Haryana AIR 2022 SC 270 : 2022 (1) Crimes 227 (SC) "It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences Under Section 120-B of Indian Penal Code. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the Accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co-Accused, in absence of other acceptable corroborative evidence, is not safe to convict the Accused. In the case of Indra Dalal v. State of Haryana (2015) 11 SCC 31, this Court has considered the conviction based only on confessional statement and recovery of vehicle used in the crime.
On close scrutiny of evidence on record, we are of the considered view that prosecution has failed to prove its case, that the Appellant herein, has conspired with other Accused for the offences for which he was charged. Except the alleged confessional statements of the co-Accused and in absence of any other corroborative evidence, it is not safe to maintain the conviction and sentence imposed upon the Appellant. The findings recorded by the Trial Court in convicting the Appellant mainly on the ground that he was one of the conspirators for the crime in question, is erroneous and illegal. The High Court has not considered the evidence on record in proper perspective and erroneously confirmed the conviction and sentence imposed on the Appellant.
For the aforesaid reasons, this appeal is allowed. Conviction recorded and sentence imposed on the Appellant is, hereby, (Downloaded on 25/05/2022 at 09:09:52 PM) (8 of 23) [CRLA-297/2009] set aside and he is acquitted of the charges levelled against him. The Appellant be released forthwith, unless his custody is required in connection with any other case." 6.4 Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors. (2020) 7 SCC 1 "We may reiterate, therefore, that the certificate required Under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D. 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose."
7. Learned Public Prosecutor appearing on behalf of the Respondent-State opposes, and submits that the learned Court below has rightly passed the impugned order after taking into due consideration the overall facts and circumstances of the case and a perusal and appreciation of the evidences palced on record before it.
8. Learned Public Prosecutor further submits that the recovery has been made from the accused-appellant in the first appeal, and that the same is clearly proven as the currency notes recovered from him bear the phenolphtalein powder, which was smeared on it by the A.C.B. authorities. The acceptance and recovery of the illegal gratification is thus proven by the evidence placed on record before the learned Court below.
(Downloaded on 25/05/2022 at 09:09:52 PM)
(9 of 23) [CRLA-297/2009]
9. Learned Public Prosecutor also submits that the demand for the same was made by the appellant in the first appeal over the telephone to the complainant, who informed him to come to the R.S.E.B. office in person along with the bribe if he wanted to restart the electricity connection on his father's land. And that, the same is proven by the transcript.
10. Learned Public Prosecutor further submits that the appellant in the first appeal, has admitted during the trap proceedings, that the demand for the illegal gratification was made by him from the complainant on behalf of the appellant in the second appeal, and that whether the appellant in the second appeal was present at the spot on the day of the trap proceedings is, therefore, not of relevance.
11. Learned Public Prosecutor also submits that since the Demand and Recovery have been proven against the accused herein,and therefore the impugned order of conviction deserves to be upheld.
12. At the outset, this Court thinks it necessary and fit to keep into consideration the observations made by the Hon'ble Supreme Court, with regard to the gravity and seriousness of offences under the Prevention of Corruption Act, 1988 and the catastrophic effect that such offences, if left unchecked, have on a democratic society, in State of M.P. & Ors. Vs. Ram Singh (2000) 5 SCC
88. Relevant portion of the said judgment is reproduced as under:-
"Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignancies the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV (Downloaded on 25/05/2022 at 09:09:52 PM) (10 of 23) [CRLA-297/2009] leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society."
13. Before delving into the case at hand, the relevant Sections of the Prevention of Corruption Act, 1988 (as it stood then) applicable in the present case, are reproduced below for the sake of brevity:-
"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 1[three years] but which may extend to 2[seven years] and shall also be liable to fine.
Explanation.--(Downloaded on 25/05/2022 at 09:09:53 PM)
(11 of 23) [CRLA-297/2009]
(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will when serve them, be may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification." The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration." The words "legal remuneration"
are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section"
13. Criminal, misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct, --
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person for himself or for any other person any gratification other than legal remuneration as active or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having (Downloaded on 25/05/2022 at 09:09:53 PM) (12 of 23) [CRLA-297/2009] any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public, interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[four years] but which may extend to 2[ten years] and shall also be liable to fine."
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) or 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, (Downloaded on 25/05/2022 at 09:09:53 PM) (13 of 23) [CRLA-297/2009] 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) 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 interference of corruption may fairly be drawn."
13. This Court observes that, for the offences under Sections 7 and 13 sub-section (1) (d) read with Section 13 sub-section (2) of the Prevention of Corruption Act, 1988 to be made out against the accused, it is necessary that; the twin ingredients of a demand of illegal gratification / bribe of remuneration; or any valuable thing, either without consideration or a consideration which is known to be inadequate by the accused; or for a pecuniary advantage, for himself or another, made by the accused or by another on his behalf, coupled with a recovery of the said illegal gratification from the accused, or from someone who has accepted the same on his (Downloaded on 25/05/2022 at 09:09:53 PM) (14 of 23) [CRLA-297/2009] behalf; or if he has dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant, must be proven by the prosecution as per the facts and circumstances of each case. 13.1 It is a settled position of law that any allegation under the aforementioned sections against an accused, if sans a demand for any kind of illegal gratification, (hereinafter referred to as 'Demand') or a recovery of the same (hereinafter referred to as 'Recovery'), as discussed above, would result in a failure of the prosecution to prove its case, beyond all reasonable doubt.
14. However, in case a Demand and a Recovery have been proven before the competent Court by placing the evidence on record, which may include, but not be limited to; audio and/or video recording of trap proceedings, transcript of telephonic conversation between complainant and accused, chemical testing of the currency notes and the clothes / person of the accused, or his conduit, by phenolphthalein powder or anthracene powder, testimonies of complainant and/or investigating officer/shadow witness and/or trap/panch witness and/or other witnesses, and whether any of the witnesses have turned hostile, the accused may rebut the same, to the satisfaction of the competent Court and averting to the facts of the case, by providing a justification / explanation to such demand.
15. This Court further observes, as is clear from the legislative intention crystallised in the provision of law under Section 20 of the Act of 1988, that in case a demand for illegal gratification has been proved, then it is rebuttable at the instance of the accused if (Downloaded on 25/05/2022 at 09:09:53 PM) (15 of 23) [CRLA-297/2009] he is able to justify / explain the purpose for the said demand so made, to the satisfaction of the Court.
16. The same was reinforced by the judgment of the Hon'ble Apex Court in B. Noha Vs. State of Kerala and Ors. (2006) 12 SCC 277, wherein the Hon'ble Apex Court while referencing the ratio decidendi laid down in the earlier decision of State of A.P. v. Kommaraju Gopala Krishna Murthy (2000) 9 SCC 752 observed the following:-
"...that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification."
16.1 Therefore, when it appears that an amount, which may appear to be a Demand made by an accused, has been passed to the accused, then a presumption under Section 20 of the Act of 1988 is made against the accused, and the burden of proof of rebutting the same then lies on the shoulders of the accused. 16.2 Furthermore, in Guruviah & Ors. Vs. The State (2019) 8 SCC 396 wherein the Hon'ble Apex Court referenced the ratio decidendi laid down earlier in T. Shankar Prasad v. State of A.P. (2004) 3 SCC 753 and also took into consideration, that although a justification / explanation was given by the accused, it was not offered immediately after the recovery of money but at a belated stage, which called into question the authenticity of the same.
Relevant portion of T. Shankar (supra) is reproduced below:-
"The involvement of both of the them a well-planned and cleverly managed device to systematically collect money (Downloaded on 25/05/2022 at 09:09:53 PM) (16 of 23) [CRLA-297/2009] stood sufficiently established on the evidence let in by the prosecution. Further, A-2 did not offer his explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by this Court in A. Abdul Kaffar v. State of Kerala."
17. This Court is also conscious of the following judgments rendered by the Hon'ble Apex Court:-
17.1 In N. Vijayakumar Vs. State of T.N. (2021) 3 SCC 687, the Hon'ble Apex Court reiterated the ratio decidendi laid down in Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 with respect to the powers of the appellate Court while dealing with an appeal against an order of acquittal. Further reference was made to the judgment rendered in Murugesan and Ors. v. State through Inspector of Police (2012) 10 SCC 383 wherein the Hon'ble Apex Court held that the appellate Court could reverse an order of acquittal passed by a Court below, only if it finds the view to be an erroneous or perverse view, and not merely if it finds that another view is possible while looking into the facts and circumstances of the case. And the same, has een consistently upheld by the Hon'ble Apex Court in multiple judgments. (See The State of Gujarat Vs. Navinbhai Chandrakant Joshi and Ors. (2018) 9 SCC 242 and State of Gujarat Vs. Bhalchandra Laxmishankar Dave (2021) 2 SCC
735.) Relevant portion of Chandrappa (supra) is reproduced as under:-
"1.An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.(Downloaded on 25/05/2022 at 09:09:53 PM)
(17 of 23) [CRLA-297/2009]
2. The Cr.P.C. puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
3. 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 in the nature of "flourishes of language" to emphasise 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 own conclusion.
4. 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.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
Relevant portion of Murgesan (supra) is reproduced as under:-
"In other words, the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasised that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such as "erroneous view" or "wrong view" which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible.(Downloaded on 25/05/2022 at 09:09:53 PM)
(18 of 23) [CRLA-297/2009] It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court 17.2 V. Sejappa Vs. State (2016) 12 SCC 150 wherein the Court referenced the judgment rendered in State through Inspector of Police, A.P. v. K. Narasimhachary 2005) 8 SCC 364, wherein the following observation was made:-
"reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court."
17.3 State of Gujarat Vs. Bhalchandra Laxmishankar Dave (2021) 2 SCC 735 wherein the Hon'ble Apex Court, while dealing with a case wherein the High Court had set aside the order of (Downloaded on 25/05/2022 at 09:09:53 PM) (19 of 23) [CRLA-297/2009] conviction passed by the Court below and acquitted the accused therein, made the following observations:-
"We have gone through the detailed judgment and order of conviction passed by the Learned Trial Court and also the evidence on record laid down by the prosecution as well as the defence. We have perused the impugned judgment and order of acquittal passed by the High Court to ascertain whether the High Court has conformed to the principles while exercising in the criminal appeal against the judgment and order of conviction. We find that the High Court has not strictly proceeded in the manner in which High Court ought to have while dealing with the appeal against the order of conviction. On perusal of the impugned judgment and order of acquittal passed by the High Court, we find that, as such, there is no re-appreciation of the entire evidence on record in detail while acquitting the Respondent - Accused. The High Court has only made general observations on the depositions of the witnesses examined.
The High Court ought to have appreciated that it was dealing with the first appeal against the order of conviction passed by the Learned trial Court. Being First Appellate Court, the High Court was required to re-appreciate the entire evidence on record and also the reasoning given by the Learned trial Court while convicting the Accused. Being the First Appellate Court the High Court ought to have reappreciated the entire evidence on record without any limitation, which might be there while dealing with an appeal against the order of acquittal passed by the Learned Trial Court. Therefore, we are of the firm opinion that the impugned judgment and order passed by the High Court acquitting the Respondent - Accused without adverting to the reasons given by the Learned trial Court while convicting the Accused and without reappreciating the entire evidence on record in detail cannot be sustained and the same deserves to be quashed and set aside. "(Downloaded on 25/05/2022 at 09:09:53 PM)
(20 of 23) [CRLA-297/2009]
18. At the cost of repetition, this Court deems it proper to summarise the observations made by the Hon'ble Apex Court in the aforementioned precedent laws in the following manner:-
18.1 For offences under the Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act of 1988, it is fundamental that a Demand and Recovery of the same is proven against the accused. 18.2 The presumption under Section 20 of the Act of 1988, once demand and recovery are proven, operates against the accused, unless he rebuts the same to the satisfaction of the competent Court, and whether the rebuttal was made at the appropriate stage.
18.3 The powers of the appellate Court to reverse an order of acquittal, under the Act of 1988, passed by the Court below, can be done only on the ground that the view taken by the Court below is erroneous or perverse, and not because the appellate Court, after looking into the facts and circumstances of the case, is inclined to take another possible view than the one taken by the learned Court below. Furthermore, the instances in which the appellate Court may disturb an order of acquittal, under the Act of 1988, passed by the learned Court below on any of the grounds as enumerated in the case of Chandrappa (supra). 18.4 And that, an appellate Court may interfere with an order of conviction, under the Act of 1988, only after a re-appreciation of of the entire evidence on record and thereafter, if the appellate Court finds the reasons as laid out by the Court below, in convicting the accused, under the Act of 1988, to be bad or unsustainable in the eye of law, then it may interfere and accordingly, reverse the conviction into an acquittal. (Downloaded on 25/05/2022 at 09:09:53 PM)
(21 of 23) [CRLA-297/2009]
19. Now adverting to the facts and circumstances of the present case, this Court makes the following observations:-
19.1 Demand by the Suresh Kumar, L.D.C, appellant in the first appela, has been proven, while the same has not been proved against Lal Chand, J. En., i.e. the appellant in the second appeal.
The motive is also clear as the complainant had made an application to re-start his electricity connection on his father's land, and that the Demand of Rs.20,000/- was made by Suresh Kumar to the complainant.
19.2 Recovery of the currency notes of RS. 10,000/-, during the trap proceedings was made from Suresh Kumar, and Lal Chand was not present at the spot of the trap proceedings and has an alibi for the same. Upon being tested, Suresh Kumar's hands revealed a pinkish hue which revealed that he had come in contact with the currency notes which were smeared with phenolphthalein powder, as used in the trap proceedings.
19.3 And although Suresh Kumar denied having made any such demand and that he was acting as a conduit of Lal Chand, is not proven by evidence and therefore remains unsubstantiated. And the averment that he was in fact sitting at the cash counter on the day of the trap is not acceptable, and as the Trial Court has also rightly observed, as Demand has been proven and the motive has been proven, and that it is being used as a ploy to escape conviction. And that if, it was initially averred by Suresh Kumar that the had accepted the amount on behalf of Lal Chand, and subsequently averred that the amount was taken toward the electricity connection, and is therefore inconsistent. (Downloaded on 25/05/2022 at 09:09:53 PM)
(22 of 23) [CRLA-297/2009] 19.4 There is a tape recording of the pre trap and trap proceedings, and telephonic conversations which fortify the finding that a Demand was made.
19.5 The testimonies of witnesses P.W. 5, P.W. 7 and P.W. 8 also corroborate the same.
19.6 This Court, therefore observes that Demand and Recovery with respect to Suresh Kumar, has been proven to the satisfaction of the learned Court below, with the support of evidences placed on record before it, where as although Demand has been proven from Lal Chand, there is a glaring absence of any kind of Recovery made from him. And therefore the charges for the offences under the Act of 1988 against Lal Chand do not stick. s In S.B. Criminal Appeal No. 297/2009:
20. This Court, in light of the above made observations and the aforementioned precedent laws laid down by the Hon'ble Apex Court, finds that the impugned judgment passed by the Trial Court deserves to be upheld to the extent of the conviction of accused- appellant Suresh Kumar.
21. This Court, therefore, finds that the impugned judgment passed by the learned Court below, does not suffer from any legal infirmity to the extent of the conviction of Suresh Kumar, and therefore, the same is upheld and affirmed to the said extent.
22. The said appeal is dismissed. The accused is on bail; however, since as per the information furnished by the learned counsel for the appellant, accused-appellant-Suresh Kumar has already expired, therefore, no consequential steps are required to (Downloaded on 25/05/2022 at 09:09:53 PM) (23 of 23) [CRLA-297/2009] be taken against him, in pursuance of upholding of the judgment of his conviction. The legal heirs of deceased Suresh Kumar are already on record. Accordingly, all pending applications, if any, are also disposed of.
In S.B. Criminal Appeal No. 299/2009:
23. This Court, in light of the above made observations and the aforementioned precedent laws laid down by the Hon'ble Apex Court, finds that the impugned judgment passed by the Trial Court is not sustainable to the extent of the conviction of Lal Chand.
24. This Court, therefore, finds that the impugned judgment of conviction passed by the learned Court below, to be bad in the eye of law, and therefore, the same is hereby quashed and set aside to the extent of conviction of Lal Chand.
25. The appeal is allowed and the appellant is hereby acquitted of all charges leveled against him herein. The accused is on bail, his bail bonds and sureties stand discharged, he need not surrender. Accordingly, all pending applications, if any, are disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
Skant/-
(Downloaded on 25/05/2022 at 09:09:53 PM) Powered by TCPDF (www.tcpdf.org)