N. Vijayakumar vs State Of Tamil Nadu

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 100­101 OF 2021 [Arising out of S.L.P.(Crl.)Nos.4729­4730 of 2020]

N.Vijayakumar …..Appellant

Versus

State of Tamil Nadu …..Respondent

JUDGMENT

R. Subhash Reddy, J.

1. Leave granted.

2. The sole accused in Special Calendar Case No.49 of 2011 on

the file of Special Court for Trial of Prevention of Corruption Act

Cases, Madurai, has filed these appeals, aggrieved by the conviction

recorded vide judgment dated 28.08.2020 and 22.09.2020 and

sentence imposed vide order dated 15.09.2020 and 29.09.2020 by the Signature Not Verified MEENAKSHI KOHLI Date: 2021.02.03 Madurai Bench of the Madras High Court under Sections 7 and 13(2) Digitally signed by

16:28:36 IST Reason:

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Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short,

‘the Act’).

3. The appellant­accused was working as Sanitary Inspector in

8th Ward of Madurai Municipal Corporation. He was chargesheeted for

the offence under Sections 7, 13(2) read with 13(1)(d) of the Act

alleging that he demanded an amount of Rs.500/­ and a cell phone as

illegal gratification 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. It was the case of the

prosecution that to send his report for extension of work beyond the

period of March 2003, when PW­2 has approached him on 09 th and

10th of October 2003, such a demand was made, as such appellant

being a public servant demanded and accepted illegal gratification on

10th of October 2003 as a motive or reward to do an official act in

exercise of his official function and thereby he has committed

misconduct which is punishable under Sections 7, 13(2) and 13(1)(d)

of the Act. On denial of charge, charges were framed against him for

the aforesaid offences and he has pleaded not guilty. Therefore, he

was tried before the Special Court for the aforesaid alleged offences.

During the trial, on prosecution side, 12 witnesses were examined, i.e.

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PW­1 to PW­12; and 17 exhibits – Ex.P1 to P.17 and M.O.1 to M.O.4.

have been marked. No defence witness was examined and Ex.D1 to

D3 were marked during the cross­examination of PW­6.

4. By considering the oral and documentary evidence on record,

trial court, by judgment dated 25.02.2014, acquitted the appellant.

Aggrieved by the judgment of the Special Court, State has preferred

Criminal Appeal (MD) No.6 of 2015 before the Madurai Bench of

Madras High Court. The Madurai Bench of Madras High Court, by

impugned judgment and orders, has reversed the acquittal, and

convicted the appellant for the offences under Section 7, 13(2) and

13(1)(d) of the Act and imposed the sentence of rigorous imprisonment

for one year and imposed the penalty of Rs.5000/­. Aggrieved by the

conviction recorded and sentence imposed by the impugned

judgments and orders passed by the High Court, accused is before

this Court in these appeals.

5. We have heard Sri S. Nagamuthu, learned senior counsel

appearing for the appellant and learned counsel for the State of Tamil

Nadu.

6. Sri Nagamuthu, learned senior counsel appearing for the

appellant, by taking us to the evidence and other material on record,

has submitted that, the well reasoned judgment of the trial court,

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which was rendered by appreciating oral and documentary evidence

on record, is reversed by the High Court without recording valid and

cogent reasons. By relying on a judgment of this Court in the case of

Murugesan & Ors. v. State through Inspector of Police (2012) 10

SCC 383, mainly it is contended that the finding recorded by the trial

court is a “possible view” having regard to evidence on record and

even if other view is possible, same is no ground to reverse the

acquittal and to convict the accused. By referring to findings recorded

by the trial court, it is strenuously argued that the view taken by the

trial court is a “possible view” and without recording any contra

finding to the same, the High Court has convicted the appellant. It is

submitted that there is no finding recorded by the High Court

anywhere in the judgment that the view taken by the trial court is not

a “possible view”. It is submitted that in view of the material

contradictions, the trial court has disbelieved the testimony of PW­2, 3

and 5 by recording valid reasons, but the High Court, without

assigning any reasons, has believed these witnesses. It is submitted

that even if the High Court was of the view that PW­2, 3 and 5 can be

believed, unless it is held that the view taken by the trial court

disbelieving these witnesses is not a “possible view”, High Court ought

not have interfered with the judgment of acquittal recorded by the trial

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court. It is also submitted that having regard to reasons recorded,

findings recorded by the trial court cannot be said to be either

erroneous or unreasonable. By further referring to the oral evidence

on record, it is submitted that there are material contradictions in the

testimony of crucial witnesses, and without noticing the same the

High Court has convicted the appellant and imposed the sentence.

Further it is submitted that initially by judgment dated 28.08.2020,

High Court has recorded the conviction of the appellant, only for the

offence under Section 13(2) read with 13(1)(d) of the Act and imposed

the sentence of one year imprisonment and to pay a fine of Rs.5000/­

vide order dated 15.09.2020. However, thereafter again the appeal

was listed under the caption “For being mentioned” on its own by the

Court on 22.09.2020 and convicted the appellant for the offence

under Section 7 of the Act also and by further order dated 29.09.2020

imposed the sentence of one year rigorous imprisonment for the

offence under Section 7 of the Act. It is submitted that the said

judgment of conviction rendered on 22.09.2020 and the order of

sentence dated 29.09.2020 is in violation of Section 362 of the Code of

Criminal Procedure. It is submitted that once the judgment is

rendered and conviction is recorded it was not open either to list the

matter for being mentioned or to convict the appellant for the offence

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under Section 7 of the Act also. Lastly it is submitted that the

judgment in this case was reserved on 17.12.2019 and the same was

pronounced after a period of more than six months, i.e., on

28.08.2020 as such same is in violation of guidelines contained in the

judgment of this Court in the case of Anil Rai etc. v. State of Bihar

(2001) 7 SCC 318.

7. On the other hand, Sri M. Yogesh Kanna, learned counsel

appearing for the respondent­State has submitted that from the

evidence of PW­2, 3, 5 and PW­11 it is clearly proved that on

10.10.2003, the appellant­accused has demanded and accepted

Rs.500/­ and a mobile phone as bribe to process the application of

PW­2 for the extension of contract. It is submitted that inspite of

cogent and valid evidence on record, the trial court has acquitted the

appellant, and same is rightly reversed by the High Court, as such

there are no grounds to interfere with the same. It is further

submitted that in terms of the amended prayer, the appellant has

questioned only the judgment dated 22.09.2020 and the order

imposing sentence on 29.09.2020, as such, there is no challenge to

the conviction recorded and sentence imposed for the offence under

Section 13(2) and 13(1)(d) of the Act. It is submitted that by noticing

the minor contradictions, the trial court has acquitted the appellant,

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as such, the view taken by the trial court was not a “possible view”,

and the appellant is rightly convicted by the High Court and there are

no grounds to interfere with the same.

8. Having heard the learned counsels on both sides, we have

carefully perused the impugned judgments and the judgment of

acquittal rendered by the Special Court and other oral and

documentary evidence on record.

9. In these appeals, it is to be noticed that PW­2 is the key

witness, and was the complainant. He was working as a Supervisor in

a Voluntary Service called NACSS which was awarded sanitation work

on contract basis for Ward No.8 of Madurai Municipal Corporation.

The sanctioning authority, who sanctioned to prosecute the appellant

was examined as PW­1 and the complainant Thiru D. Gopal was

examined as PW­2. It is evident from the deposition of PW­2, 3, 5 and

11 that they reached the office of the accused at 05:30 p.m. on

10.10.2003, and at that point of time the accused was not found in

the seat and they have waited for him, and appellant has come to the

office at 05:45 p.m. on his bike and took his seat. PW­2, in his

deposition has stated that when he met the appellant­accused along

with other witnesses, Sri Shanmugavel and Sri Ravi Kumaran

appellant has made a demand for Rs.500/­ and cell phone. He has

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stated that in view of such demand he has 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. The official

witness Thiru Shanmugavel is examined as PW­3. He also stated in

his deposition, that when they reached the office of the accused,

accused was not in the seat. Therefore, they have waited and accused

arrived in the office at 05:45 p.m. PW­2 in his deposition has clearly

stated that he met the accused earlier several times and again when

he met on 09.10.2003 along with PW­5, the appellant­accused has

demanded for Rs.500/­ and a cell phone as illegal gratification. In the

cross­examination 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. It is also clearly deposed by PW­2 in the cross­

examination that he was ill treated by the accused several times

earlier as he belonged to scheduled caste community. From his

deposition it is clear that there were ill feelings between the appellant

and the PW­2. It is also clear from the evidence, after handing over

currency and cell phone, he along with other witnesses who have

accompanied him they came out of the office and signalled to the

inspector. PW­2 also admitted in the cross­examination that he was

not having any details regarding the purchase of M.O.2 cell phone. It

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is also clear from the evidence that though the trap was at about

05:45 p.m., phenolphthalein test was conducted only at 07:00 p.m.

There is absolutely no evidence to show that why such inordinate

delay occurred from 05:45 p.m. to 07:00 p.m. The office of the Town

Assistant Health Officer and other officials of the department is also

near to the office of the appellant. PW­3 in clear terms, has deposed

that only on demand of anti­corruption officials, the accused had

taken and produced the money and cell phone, which was in the

drawer of the table. The Circle Health Inspector of Madurai

Corporation, who was examined as PW­4 has deposed in the cross­

examination that he had no idea what was going on before he reached

the office and he has also deposed that he was not aware about

Rs.500/­ and cell phone, by whom and when it was kept. He, too has

deposed in the cross­examination that only on the direction of the

inspector the appellant­accused has taken out the money and the cell

phone. The deposition of Mr. Ravikumaran who was examined as PW­

5 is also in similar lines. Another key witness on behalf of the

prosecution is PW­11, i.e., the Deputy Superintendent of Police,

Bodinayakkanur Sub­Division, who was working as the Deputy

Superintendent of Police, Vigilance and Anti­corruption Wing,

Madurai during the relevant time. He also in his deposition has

9 Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

clearly stated that the appellant­accused was tested with the prepared

Sodium Carbonate Solution at 19:00 hrs. It is clear from the

deposition of all the witnesses, i.e., PW­2, 3, 5 and 11 that trap was at

about 05:45 p.m. and the hands of the appellant were tested only at

07:00 p.m. Further in the cross­examination, PW­11 has clearly

stated that when they were monitoring the place of occurrence for

about one hour and during that period many persons came in and out

of the office of the appellant. Added to the same, admittedly, after

completion of the phenolphthalein test, statement of the appellant was

not recorded as required under Rule 47 Clause 1 of the Vigilance

Manual. Further PW­11 also clearly deposed in the cross­examination

that he did not test the hands of the appellant­accused immediately

after payment and handing over of the money and cell phone. Further

PW­4 and PW­11 both have stated in their evidence that, only when

TLO has asked the bribe amount and cell phone, the accused

produced the same by taking out from the left side drawer of his table.

It is fairly well settled that 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. In view of the material contradictions as

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noticed above in the deposition of key witnesses, the benefit of doubt

has to go to the accused­appellant.

10. Mainly it is contended by Sri Nagamuthu, learned senior

counsel appearing for the appellant that the view taken by the trial

court is a “possible view”, having regard to evidence on record. It is

submitted that the trial court has recorded cogent and valid reasons

in support of its findings for acquittal. Under Section 378, Cr.PC, no

differentiation is made between an appeal against acquittal and the

appeal against conviction. By considering the long line of earlier cases

this Court in the judgment in the case of Chandrappa & Ors. v. State

of Karnataka (2007) 4 SCC 415 has laid down the general principles

regarding the powers of the appellate court while dealing with an

appeal against an order of acquittal. Para 42 of the judgment which is

relevant reads as under :

“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge :

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise

11 Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

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.”

Further in the judgment in the case of Murugesan (supra) relied on by

the learned senior counsel for the appellant, this Court has

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considered the powers of the High Court in an appeal against

acquittal recorded by the trial court. In the said judgment, it is

categorically held by this Court that only in cases where 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. In the

said judgment, distinction from that of “possible view” to “erroneous

view” or “wrong view” is explained. In clear terms, this Court has held

that if the view taken by the trial court is a “possible view”, High Court

not to reverse the acquittal to that of the conviction. The relevant

paragraphs in this regard where meaning and implication of “possible

view” distinguishing from “erroneous view” and “wrong view” is

discussed are paragraphs 32 to 35 of the judgment, which read as

under :

“32. In the above facts can it be said that the view taken by the trial court is not a possible view? If the answer is in the affirmative, the jurisdiction of the High Court to interfere with the acquittal of the appellant­accused, on the principles of law referred to earlier, ought not to have been exercised. 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”

13 Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

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.

33. The expressions “erroneous”, “wrong” and “possible” are defined in Oxford English Dictionary in the following terms:

“erroneous.— wrong; incorrect.

wrong.—(1) not correct or true, mistaken.

(2) unjust, dishonest, or immoral.

possible.—(1) capable of existing, happening, or being achieved.

(2) that may exist or happen, but that is not certain or probable.”

34. 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

14 Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

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.

35. A consideration on the basis on which the learned trial court had founded its order of acquittal in the present case clearly reflects a possible view. There may, however, be disagreement on the correctness of the same. But that is not the test. So long as the view taken is not impossible to be arrived at and reasons therefor, relatable to the evidence and materials on record, are disclosed any further scrutiny in exercise of the power under Section 378 CrPC was not called for.”

Further, in the case of Hakeem Khan & Ors. v. State of Madhya

Pradesh (2017) 5 SCC 719 this Court has considered powers of

appellate court for interference in cases where acquittal is recorded by

trial court. In the said judgment it is held that if the “possible view” of

the trial court is not agreeable for the High Court, even then such

“possible view” recorded by the trial court cannot be interdicted. It is

further held that so long as the view of trial court can be reasonably

formed, regardless of whether the High Court agrees with the same or

not, verdict of trial court cannot be interdicted and the High court

cannot supplant over the view of the trial court. Paragraph 9 of the

judgment reads as under :

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Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

“9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place.”

11. By applying the above said principles and the evidence on

record in the case on hand, we are of the considered view that having

regard to material contradictions which we have already noticed above

and also as referred to in the trial court judgment, it can be said that

acquittal is a “possible view”. By applying the ratio as laid down by 16 Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

this Court in the judgments which are stated supra, even assuming

another view is possible, same is no ground to interfere with the

judgment of acquittal and to convict the appellant for the offence

alleged. From the evidence, it is clear that when the Inspecting Officer

and other witnesses who are examined on behalf of the prosecution,

went to the office of the appellant­accused, appellant was not there in

the office and office was open and people were moving out and in from

the office of the appellant. It is also clear from the evidence of PW­3, 5

and 11 that the currency and cell phone were taken out from the

drawer of the table by the appellant at their instance. There is also no

reason, when the tainted notes and the cell phone were given to the

appellant at 05:45 p.m. no recordings were made and the appellant

was not tested by PW­11 till 07:00 p.m. There are material

contradictions in the deposition of PW­2 and it is clear from his

deposition that he has developed animosity against the appellant and

he himself has stated in the cross­examination that he was insulted

earlier as he belonged to scheduled caste. Further there is no answer

from PW­11 to conduct the phenolphthalein test after about an hour

from handing over tainted notes and cell phone. The trial court has

disbelieved PW­2, 3 and 5 by recording several valid and cogent

reasons, but the High Court, without appreciating evidence in proper

17 Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

perspective, has reversed the view taken by the trial court. Further,

the High Court also has not recorded any finding whether the view

taken by the trial court is a “possible view” or not, having regard to

the evidence on record. Though the High Court was of the view that

PW­2, 3 and 5 can be believed, unless it is held that the view taken by

the trial court disbelieving the witnesses is not a possible view, the

High Court ought not have interfered with the acquittal recorded by

the trial court. In view of the material contradictions, the prosecution

has not proved the case beyond reasonable doubt to convict the

appellant.

12. It is equally well settled that mere recovery by itself cannot

prove the charge of the prosecution against the accused. Reference

can be made to the judgments of this Court in the case of C.M. Girish

Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in

the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55.

In the aforesaid judgments of this Court while considering the case

under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption

Act, 1988 it is reiterated that to prove the charge, it has to be proved

beyond reasonable doubt that accused voluntarily accepted money

knowing it to be bribe. Absence of proof of demand for illegal

18 Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

gratification and mere possession or recovery of currency notes is not

sufficient to constitute such offence. In the said judgments it is also

held that even the presumption under Section 20 of the Act can be

drawn only after demand for and acceptance of illegal gratification is

proved. It is also fairly well settled that initial presumption of

innocence in the criminal jurisprudence gets doubled by acquittal

recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the

judgment in the case of B. Jayaraj (supra) read as under :

“7. Insofar 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 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] .

8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant

19 Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P­11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P­11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section

7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.

9. Insofar 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 Sections 13(1)(d)(i) and (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.

20 Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.”

The above said view taken by this Court, fully supports the case of the

appellant. In view of the contradictions noticed by us above in the

depositions of key witnesses examined on behalf of the prosecution,

we are of the view that the demand for and acceptance of bribe

amount and cell phone by the appellant, is not proved beyond

reasonable doubt. Having regard to such evidence on record the

acquittal recorded by the trial court is a “possible view” as such the

judgment of the High Court is fit to be set aside. Before recording

conviction under the provisions of Prevention of Corruption Act,

courts have to take utmost care in scanning the evidence. Once

conviction is recorded under provisions of Prevention of Corruption

Act, it casts a social stigma on the person in the society apart from

serious consequences on the service rendered. At the same time it is

also to be noted that whether the view taken by the trial court is a

possible view or not, there cannot be any definite proposition and each

case has to be judged on its own merits, having regard to evidence on

record.

21 Crl.A.@S.L.P.(Crl.)Nos.4729-30 of 2020

13. Learned counsel for the appellant has also submitted that the

judgment and conviction for the offence under Section 7 of the Act

dated 22.09.2020 and 29.09.2020 is contrary to Section 362 of Cr.PC.

As we are in agreement with the case of the appellant on merits it is

not necessary to decide such issue. The learned counsel for the State

has submitted that as per the amended copy of the memo, the

appellant has challenged only judgment/order dated 22.09.2020 and

29.09.2020 and there is no challenge to the earlier judgment of

conviction dated 28.08.2020 and the order of sentence dated

15.09.2020, but at the same time it is to be noticed when the

judgment is subsequently rendered on 22.09.2020 for the offence

under Section 7 of the Act and further sentence is also imposed vide

order dated 29.09.2020, the appellant had filed interlocutory

application seeking amendment and the same was allowed by this

Court. In that view of the matter, merely because in the amended

memo the appellant has not mentioned about the judgment dated

28.08.2020 and the order dated 15.09.2020, same is no ground to

reject the appeals on such technicality. Further the judgments relied

by the learned counsel for the State also are of no assistance in

support of his case to sustain the conviction recorded by the High

Court.

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14. For the reasons stated supra, these appeals are allowed and

the impugned judgments of conviction dated 28.08.2020 and

22.09.2020 and orders imposing sentence dated 15.09.2020 and

29.09.2020 are hereby set aside. The appellant be released forthwith

from the custody, unless otherwise his custody is required in

connection with any other case.

………………………………J. [Ashok Bhushan]

………………………………J. [R. Subhash Reddy]

………………………………J. [M.R. Shah] New Delhi.

February 03, 2021

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