State Of Kerala & Anr vs C.P. Rao

STATE OF KERALA & ANR. Appellant (s)

VERSUS

C.P. RAO Respondent(s)

J U D G M E N T

GANGULY, J.

Heard learned counsel for the parties.

This is an appeal against the judgment and order of

acquittal dated 19th January, 2005 rendered by the High Court.

The respondent facing a trial, was convicted under Sections 7 and

13(2) read with Section 13(1)(d) of Prevention of Corruption Act,

1988 by the Special Judge, Thiruvananthapuram, in Criminal Case

No. 9 of 1996 and the respondent was sentenced to undergo

rigorous imprisonment for 20 months and pay a fine of Rs. 2500/-

under the former charge and rigorous imprisonment for two years

and a fine of Rs. 2500/- under the second charge. Default

stipulations were also there.

The facts relating to that case have been summed up in

the judgment of the High Court and we are not repeating the same

here once again.

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In passing the order of acquittal, the High Court

examined and analysed in detail the evidence of the case. The

High Court found that the complainant CW 1 was not examined and

the only explanation given was that he was not available in the

country but no details were given as to where the complainant

was. The defence of the respondent in this case has also been

noted by the High Court in some detail.

The prosecution case is that the demand of illegal

gratification of Rs. 5000/- was made by the respondent from CW 1

on 19.10.1994 for the purpose of giving pass marks to all the

students who appeared in the practical examination of

pharmaceutical-II in D-Pharma final examination in the year 1994.

It is an admitted case that the respondent alone cannot give such

marks. In view of the examination system prevailing such marks

have to be approved by others. The respondent alone, therefore,

is admittedly not in a position to allot higher marks. Apart

from that, it is the case of the respondent that when CW 1 met

him in a hotel room, the respondent shouted that some currency

notes had been thrust into his pocket by CW 1. Such shouts of

the respondent were heard by PW 1 and PW 2. The evidence of PW 1

and PW 2 were recorded by the Trial Court. The evidence of PW 1

and PW 2 could not be, in any way, shaken by manner of cross-

examination. PW 3 has also given evidence of the previous

animosity between the college authorities and the respondent who

had an occasion to file reports with the college authorities on

the basis of some inspection.

In the background of these facts, especially the non-

examination of CW 1, was found very crucial by the High Court.

The High Court has referred to the decision of this Court in

Panalal Damodar Rathi Vs. State of Maharashtra 1979(4) SCC 526

wherein a Three-Judge Bench of this Court held that when there

was no corroboration of testimony of the complainant regarding

the demand of bribe by the accused, it has to be accepted that

the version of the complainant is not corroborated and,

therefore, the evidence of the complainant cannot be relied on.

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In the aforesaid circumstances, the Three-Judge Bench in

Pannalal Damodar Rathi case(supra) held that there is grave

suspicion about the appellant's complicity and the case has not

been proved beyond reasonable doubt. (see para 11)

This Court finds that the appreciation of the ratio in

Panalal Damodar Rathi case(supra) by the High Court was correctly

made in the facts and circumstances of the case.

Apart from that, Mr. P.P. Rao, learned counsel for the

respondent has drawn attention of this Court to some other

pronouncements of this Court on the relevant question.

In C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala

reported in 2009(3)SCC 779, this Court while dealing with the

case under the Prevention of Corruption Act 1988, by referring to

its previous decision in the case of Suraj Mal Vs. State (Delhi

Admn.) reported in 1979(4) SCC 725 held that mere recovery of

tainted money, divorced from the circumstances under which it is

paid, is not sufficient to convict the accused when the

substantive evidence in the case is not reliable. The mere

recovery by itself cannot prove the charge of the prosecution

against the accused. In the absence of any evidence to prove

payment of bribe or to show that the accused voluntarily accepted

the money knowing it to be bribe conviction cannot be sustained. (See para 18)

In a subsequent decision of this Court also under the

Prevention of Corruption Act, in the case of A. Subair Vs. State

of Kerala 2009(6) SCC 587, this Court made certain pertinent

observations about the necessity of the presence of the

complainant in a bribery case. The relevant observations have

been made in paragraph 18 and 19 which are quoted below:- -4-

18. The High Court held that since the Special

Judge made attempts to secure the presence of the

complainant and those attempts failed because he

was not available in India, there was

justification for non-examination of the

complainant.

19. We find it difficult to countenance the

approach of the High Court. In the absence of

semblance of explanation by the investigating

officer for the non-examination of the

complainant, it was not open to the courts below

to find out their own reason for not tendering

the complainant in evidence. It has, therefore,

to be held that the best evidence to prove the

demand was not made available before the court.

Those observations quoted above are clearly applicable

in this case. In the context of those observations, this Court

in paragraph 28 of A. Subair (supra) made it clear that the

prosecution has to prove the charge beyond reasonable doubt like

any other criminal offence and the accused should be considered

innocent till it is proved to the contrary by proper proof of

demand and acceptance of illegal gratification, which is the

vital ingredient to secure the conviction in a bribery case.

In view of the aforesaid settled principles of law, we

find it difficult to take a view different from the one taken by

the High Court.

In coming to its conclusion, we are reminded of the well

settled principle that when the court has to exercise its

discretion in an appeal arising against an order of acquittal,

the Court must remember that the innocence of the accused is

further re-established by the judgment of acquittal rendered by

the High Court. Against such decision of the High Court, the

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scope of interference by this Court in order of acquittal has

been very succinctly laid down by a Three-Judge bench of this

Court in the case of Sanwat Singh & others Vs. State of

Rajasthan 1961(3) SCR 120. At page 129, Justice Subba Rao(as His

Lordship then was) culled out the principles as follows:-

"The foregoing discussion yields the following

results: (1) an appellate court has full power to

review the evidence upon which the order of acquittal

is founded; (2) the principles laid down in Sheo

Swarup's case 1934 L.R. 61 I.A. 398 afford a correct

guide for the appellate court's approach to a case in

disposing of such an appeal; and (3) the different

phraseology used in the judgments of this Court, such

as (i) "substantial and compelling reasons", (ii)

"good and sufficiently cogent reasons", and (iii)

"strong reasons" are not intended to curtail the

undoubted power of an appellate court in an appeal

against acquittal to review the entire evidence and to

come to its own conclusion; but in doing so it should

not only consider every matter on record having a

bearing on the questions of fact and the reasons given

by the court below in support of its order of

acquittal in its arriving at a conclusion on those

facts, but should also express those reasons in its

judgment, which lead it to hold that the acquittal was

not justified."

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We are in respectful agreement with the aforesaid

salutary principles settled by this Court and we are constrained

to hold that this appeal has no merit and is accordingly

dismissed.

.......................J. (ASOK KUMAR GANGULY

.......................J. (DEEPAK VERMA)

NEW DELHI MAY 16, 2011.