REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 97 OF 2012
NARENDRA CHAMPAKLAL TRIVEDI …..Appellant
Versus
STATE OF GUJARAT ….Respondent
WITH
CRIMINAL APPEAL NO. 98 OF 2012
HARJIBHAI DEVJIBHAI CHAUHAN … Appellant
Versus
STATE OF GUJARAT ….Respondent
j u d g m e n t
Dipak Misra, J.
The present appeals are directed against the judgment of conviction
and order of sentence dated 14.10.2011 passed by the learned Single Judge
of the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 31 of
1999 whereby the appellate court has confirmed the judgment and order
of conviction and sentence dated 1st of December, 1998 passed by the
learned Additional Special Judge, Bhavnagar in Special Case No. 6 of
1994, wherein the learned Additional Special Judge had convicted the
appellants for the offence punishable under Section 7 of the Prevention of
Corruption Act, 1988 (for brevity `the Act’) and sentenced them to undergo
rigorous imprisonment of six months with fine of Rs.5,000/- each, in
default of payment of fine, to suffer simple imprisonment for a period of
one month and further convicted them under Section 13(2) of the Act and
sentenced them to undergo rigorous imprisonment for a period of one year
with a fine of Rs.5,000/- each, in default, to suffer simple imprisonment
for a period of one month with the stipulation that both the sentences
would be concurrent.
2. The broad essential facts of the prosecution case are that the
complainant, Gajendra Jagatsinh Jadeja, was residing in Plot No. 1 in
Virbhadranagar Society. As in the City Survey Office record, the name of
his grandfather stood recorded in respect of the premises in question, the
complainant in order to obtain the property card and the sketch of the
same, went to the office of the City Survey Office, Bhavnagar on 11th
March, 1994, to submit an application for the aforesaid purpose and he was
asked by Mr. Jagani, Clerk in the said office to come on 15th of March,
1994. On the said date, the complainant at about 1.30 p.m. went to the
City Survey Office and gave the application to Mr. Jagani, who asked him to
hand over the application to Narendra Champaklal Trivedi, the appellant in
Criminal Appeal No. 97 of 2012, sitting in the opposite room who told him
that it would take a week’s time to prepare the said copies. The
complainant made a request to Shri Jagani to expedite the matter as he had
to go to meet his father with the copies and Mr. Jagani replied that it
would cost him Rs.50/- to get the copies immediately. As the complainant
had no money at that time he was asked by Jagani to meet Trivedi and
Harjibhai Devjibhai Chauhan, the appellant in Criminal Appeal No. 98/2012
who told him that the copies would be given to him on payment and he could
receive the copies between 4.30 to 4.50 p.m. As the appellant had no
intention to make the payment, he approached the office of the Anti
Corruption Bureau which was situate on the ground floor of his premises and
gave a complaint to the Police Inspector. The concerned inspector sought
assistance of two panch witnesses who were made to understand the case and
thereafter experiment of U.V. Lamp was carried out with the help of
anthrecene powder. Thereafter, the complainant produced the currency notes
and necessary instructions were given to the complainant as well as to the
witnesses. A preliminary part of the panchnama was drawn and signatures of
the panchas were taken and thereafter, the complainant, the panchas and the
members of the raiding party proceeded to the City Survey Office.
3. As the narration of the prosecution case proceeds, Jagani asked the
complainant to meet said Chauhan and pay the money. Being instructed, they
went to the room of said Chauhan and he was directed to pay Rs. 7.10 paise
as fees to said Trivedi and obtain the property card and sketch.
Thereafter, said Chauhan demanded money from the complaint as decided and
on being asked whom to hand over the amount, Chauhan said to give it to
Trivedi and Trivedi was asked to accept the amount. Thereafter, the
complainant took out the money from his left pocket of the shirt and handed
over to Trivedi which was accepted by Trivedi by his right hand. He
counted the money by both hands and put the same in the left side pocket of
his shirt. As pre-decided, the signal was given to the raiding party which
rushed to the place of the incident. Thereafter, the experiment of U.V.
Lamp was carried out on the fingers of both the hands and palms of Trivedi
and pocket also and thereon light blue fluorescent marks were found. Panch
witness No. 1 took out the currency notes from Trivedi. There were two ten
rupee notes and one five rupee note. On those currency notes, light blue
fluorescent marks were found with the numbers mentioned on the first part
of the panchnama. On being asked about the rest of the money, Trivedi had
said that he had given it to Chauhan. Experiment of U.V. Lamp was made on
the hands and pockets of Trivedi and Chauhan and light blue fluorescent
marks of anthrecene powder was found. The currency notes were tallied with
the numbers mentioned on the first part of the panchnama. From both the
accused-appellants, currency notes were recovered, marks of anthrecene
powder were found and the second part of the panchnama was prepared. The
Investigating Officer carried out further investigation, recorded the
panchnama and after obtaining requisite sanction, he laid the chargesheet
before the Competent Court on 25th of August 1994.
4. The learned trial Judge framed charges in respect of the offences
that have been mentioned hereinbefore. The appellants pleaded not guilty
and sought to be tried.
5. In order to bring home the charges levelled against the appellants,
the prosecution examined number of witnesses and produced documentary
evidence in support of the case.
6. The accused-appellants in their statements under Section 313 of the
Code of Criminal Procedure disputed the charges that they had demanded the
amount towards illegal gratification but did not want to adduce any
evidence in their defence.
7. The learned trial Judge, appreciating the oral as well as the
documentary evidence and taking into consideration the submissions advanced
by the parties, found the appellants guilty and convicted them as has been
stated hereinabove.
8. The appellants preferred a singular appeal before the High Court. It
was contended before the High Court that the learned trial Judge had failed
to take into consideration the plea of the defence and the inadequacy of
the material brought on record from which it would be graphically clear
that the prosecution had miserably failed to prove its case that there was
demand of bribe and acceptance thereof and hence, the ingredients of
Sections 7 and 13 of the Act had not been established. It was argued that
neither the FIR nor the testimony of the complainant remotely establish
that there was a demand for bribe and once the said core fact was not
proven, the charges levelled against them were bound to collapse like a
pack of cards. It was urged that as the office of the Anti Corruption
Bureau had been leased out by the complainant, he was able to rope the
accused-appellants in a bogus trap and falsely implicate them. It was
further contended that the complainant and Panch witness No. 1 had stated
in the cross-examination that Trivedi had not made any demand of Rs.50/-
from the complainant and the recovery of the trapped amount had also not
been proven inasmuch as the panchas are not independent witnesses and their
evidence did not merit any acceptance. It was proponed that the learned
trial Judge had failed to consider the fact that Jagani who was the main
culprit was not booked under law and, therefore, the prosecution had
deliberately severed the link to rope in the appellants and hence, it was a
malafide prosecution. It was also submitted that there were other
witnesses in the room but the prosecution chose to examine only the
interested witnesses and in essence, the judgment of conviction suffered
from perversity of approach and deserved to be axed.
9. The learned counsel for the State urged before the High Court that
the emphasis laid on Jagani not being arrayed as an accused was totally
inconsequential as he had never made any demand from the complainant. He
referred to various documents on record and the testimony of the witnesses
that the charges levelled against the accused persons had been proven to
the hilt and there was nothing on record which would remotely suggest that
they had been falsely implicated. The relationship between the complainant
and the ACB officer could not be taken into consideration to come to a
conclusion that the complaint was false, malafide and the accused persons
had been deliberately roped in. It was canvassed by him that the amount
had been recovered from the pocket of Trivedi and the demand had been made
by the accused Chauhan to handover the amount of illegal gratification to
Trivedi. The offence was committed with the consent of both and the same
had been established by the oral and documentary evidence. The learned
counsel for the State gave immense emphasis on the version of the Panch
witnesses, the scientific proof and the testimony of the trapping officer.
The principle of presumption was pressed into service and the said
contention was edificed by putting forth the stance that the cumulative
effect of the evidence on record clearly satisfied the ingredients of
Sections 7 and 13(2) read with Section 13(1)(d) of the Act to bring home
the charges levelled against the accused persons.
10. The learned single Judge took note of the facts as regards the
presence of the accused appellants in the room, the demand made by the
appellant No. 2, Chauhan, in the presence of the Panch witness No. 1, the
direction by Chauhan to hand it over to Trivedi which established the
consent, the deposition of PW-2 about the involvement and complicity of the
appellants in the crime, the absence of enmity between the complainant and
the accused persons, the unreproachable aspect of the evidence of the
witnesses who stood embedded in their stand, the acceptance and recovery
that inspired total credence about the demand and acceptance, and the
principle of presumption being attracted, all of which would go a long way
to show that the prosecution had proven the case beyond reasonable doubt
and further considered the inability of the accused-appellants to rebut the
presumption as envisaged under Section 20 of the Act, the unacceptability
and farfetchedness of the theory of existence of obligation between the
informant and the investigating officer to implicate the accused-appellants
in the crime, the failure of the appellants to explain how the amount in
question was found from their possession and how anthrecene powder was
found on their hands and eventually opined that the cumulative aspect of
all the facts and circumstances clearly establish the charges framed
against the appellants. Being of this view, the High Court affirmed the
judgment of acquittal.
11. We have heard the learned counsel of both the parties at length and
carefully perused the record.
12. At the outset, we may state that the recovery part has gone totally
unchallenged. Though a feeble attempt was made before the High Court and
also before us, yet a perusal of the evidence and the test carried out go a
long way to show that the amount was recovered from the possession of the
accused-appellants. It is the settled principle of law that mere recovery
of the tainted money is not sufficient to record a conviction unless there
is evidence that bribe had been demanded or money was paid voluntarily as a
bribe. Thus, the only issue that remains to be addressed is whether there
was demand of bribe and acceptance of the same. Be it noted, in the
absence of any evidence of demand and acceptance of the amount as illegal
gratification, recovery would not alone be a ground to convict the accused.
This has been so stated in T. Subramanian v. The State of Tamil Nadu[1].
13. The demand and acceptance of the amount as illegal gratification is
the sine qua non for constituting an offence under the Act. It is also
settled in law that there is a statutory presumption under Section 20 of
the Act which can be dislodged by the accused by bringing on record some
evidence, either direct or circumstantial, that money was accepted by other
than the motive or reward as stipulated under Section 7 of the Act. It is
obligatory on the part of the court to consider the explanation offered by
the accused under Section 20 of the Act and the consideration of the
explanation has to be on the anvil of preponderance of probability. It is
not to be proven beyond all reasonable doubt. It is necessary to state
here that the prosecution is bound to establish that there was an illegal
offer of bribe and acceptance thereof. The same has to be founded on
facts. In this context, we may refer with profit to the decision in M.
Narsinga Rao v. State of A.P.[2] wherein a three-Judge Bench referred to
Section 20 of the Act and stated that the only condition for drawing the
legal presumption under Section 20 is that during trial it should be proved
that the accused has accepted or agreed to accept any gratification. The
section does not say that the said condition should be satisfied through
direct evidence. Its only requirement is that it must be proved that the
accused has accepted or agreed to accept the gratification. Thereafter,
the Bench produced a passage from Madhukar Bhaskarrao Joshi v. State of
Maharashtra[3] with approval. It reads as follows: -
“The premise to be established on the facts for drawing the
presumption is that there was payment or acceptance of gratification. Once
the said premise is established the inference to be drawn is that the said
gratification was accepted ‘as motive or reward’ for doing or forbearing to
do any official act. So the word ‘gratification’ need not be stretched to
mean reward because reward is the outcome of the presumption which the
court has to draw on the factual premise that there was payment of
gratification. This will again be fortified by looking at the collocation
of two expressions adjacent to each other like ‘gratification or any
valuable thing’. If acceptance of any valuable thing can help to draw the
presumption that it was accepted as motive or reward for doing or
forbearing to do an official act, the word ‘gratification’ must be treated
in the context to mean any payment for giving satisfaction to the public
servant who received it.”
14. In Raj Rajendra Singh Seth v. State of Jharkhand & Anr.[4] the
principle laid down in Madhukar Bhaskarrao Joshi (supra) was reiterated.
15. In State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede[5], it has
been held that to arrive at the conclusion that there had been a demand of
illegal gratification, it is the duty of the court to take into
consideration the facts and circumstances brought on record in their
entirety and for the said purpose, undisputedly, the presumptive evidence
as laid down in Section 20 of the Act must also be taken into
consideration.
16. In C.M. Girish Babu v. C.B.I., Cochin, High Court of Kerala[6], after
referring to the decisions in M.Narsinga Rao (supra) and Madhukar
Bhaskarrao Joshi (supra), this Court has held thus: -
“19. It is well settled that the presumption to be drawn under Section 20
is not an inviolable one. The accused charged with the offence could rebut
it either through the cross-examination of the witnesses cited against him
or by adducing reliable evidence. If the accused fails to disprove the
presumption the same would stick and then it can be held by the Court that
the prosecution has proved that the accused received the amount towards
gratification.”
17. In the case at hand, the money was recovered from the pockets of the
accused-appellants. A presumption under Section 20 of the Act becomes
obligatory. It is a presumption of law and casts an obligation on the
court to apply it in every case brought under Section 7 of the Act. The
said presumption is a rebuttable one. In the present case, the explanation
offered by the accused-appellants has not been accepted and rightly so.
There is no evidence on the base of which it can be said that the
presumption has been rebutted.
18. The learned counsel for the appellant has submitted with immense
force that admittedly there has been no demand or acceptance. To bolster
the said aspect, he has drawn inspiration from the statement of the
complainant in examination-in-chief. The said statement, in our considered
opinion, is not to be read out of context. He has clarified as regards the
demand and acceptance at various places in his examination and the cross-
examination. The shadow witness has clearly stated that there was demand
of bribe and giving of the same. Nothing has been brought on record to
doubt the presence of the shadow witness. He had given the signal after
which the trapping party arrived at the scene and did the needful. All the
witnesses have supported the case of the prosecution. The currency notes
were recovered from the possession of the appellants. In the lengthy cross-
examination nothing has really been elicited to doubt their presence and
veracity of the testimony. The appellants in their statement under Section
313 of the Code of Criminal Procedure have made an adroit effort to explain
their stand but we have no hesitation in stating that they miserably failed
to dislodge the presumption. PW-2 has categorically stated that the
complainant took out Rs.50/- from his pocket and gave it to the accused
appellant as directed. Thus analysed and understood, there remains no
shadow of doubt that the accused-appellants had demanded the bribe and
accepted the same to provide the survey report. Therefore, the conviction
recorded by the learned trial Judge which has been affirmed by the learned
single Judge of the High Court, does not warrant any interference.
19. The learned counsel for the appellants had, in the course of arguing
the appeal, submitted that the appellants have suffered enough as they have
lost their jobs and the amount is petty, the said aspects should be
considered as mitigating factors for reduction of the sentence. Sympathy
has also been sought to be drawn on the foundation that the occurrence had
taken place almost 18 years back and the amount is paltry. On a perusal of
Section 7(1) of the Act, it is perceptible that when an offence is proved
under the said section, the public servant shall be punished with
imprisonment which shall not be less than six months but which may extend
to five years and shall also be liable to fine. Section 13(2) of the Act
postulates that any public servant who commits criminal misconduct shall be
punishable with imprisonment for a term which shall not be less than one
year but which may extend to seven years and shall also be liable to fine.
As is demonstrable from the impugned judgment, the learned trial court has
imposed the minimum sentence and the High Court has affirmed the same.
20. The submission of the learned counsel for the appellants, if we
correctly understand, in essence, is that power under Article 142 of the
Constitution should be invoked. In this context, we may refer with profit
to the decision of this Court in Vishweshwaraiah Iron and Steel Ltd. V.
Abdul Gani and Ors.[7] wherein it has been held that the constitutional
powers under Article 142 of the Constitution cannot, in any way, be
controlled by any statutory provision but at the same time, these powers
are not meant to be exercised when their exercise may come directly in
conflict with what has been expressly provided for in any statute dealing
expressly with the subject. It was also made clear in the said decision
that this Court cannot altogether ignore the substantive provisions of a
statute.
21. In Keshabhai Malabhai Vankar v. State of Gujarat[8], it has been held
as follows: -
“6. It is next contended that this Court in exercise of power under
Article 142 of the Constitution has plenary power to reduce the sentence.
We are afraid that we cannot ignore the statutory object and reduce the
minimum sentence prescribed under the Act. Undoubtedly under Article 142
the Supreme Court has the power untrammelled by any statutory limits but
when penal offences have been prescribed for violation of statutory
regulations for production, equitable supply and distribution of essential
commodities at fair prices, it was done in the social interest which this
Court would keep in mind while exercising power under Article 142 and
respect the legislative policy to impose minimum sentence. Amendment to
the Act was made to stamp out the statutory violations with impunity. Thus
we find that it is not a fit case warranting interference. The appeal is
accordingly dismissed.”
22. In Laxmidas Morarji (Dead) by LRS. v. Behrose Darab Madan[9], it has
been ruled thus: -
“Article 142 being in the nature of a residuary power based on equitable
principles, the Courts have thought it advisable to leave the powers under
the article undefined. The power under Article 142 of the Constitution is
a constitutional power and hence, not restricted by statutory enactments.
Though the Supreme Court would not pass any order under Article 142 of the
Constitution which would amount to supplanting substantive law applicable
or ignoring express statutory provisions dealing with the subject, at the
same time these constitutional powers cannot in any way, be controlled by
any statutory provisions. However, it is to be made clear that this power
cannot be used to supplant the law applicable to the case. This means that
acting under Article 142, the Supreme Court cannot pass an order or grant
relief which is totally inconsistent or goes against the substantive or
statutory enactments pertaining to the case.”
23. In view of the aforesaid pronouncement of law, where the minimum
sentence is provided, we think it would not be at all appropriate to
exercise jurisdiction under Article 142 of the Constitution of India to
reduce the sentence on the ground of the so-called mitigating factors as
that would tantamount to supplanting statutory mandate and further it would
amount to ignoring the substantive statutory provision that prescribes
minimum sentence for a criminal act relating to demand and acceptance of
bribe. The amount may be small but to curb and repress this kind of
proclivity the legislature has prescribed the minimum sentence. It should
be paramountly borne in mind that corruption at any level does not deserve
either sympathy or leniency. In fact, reduction of the sentence would be
adding a premium. The law does not so countenance and, rightly so,
because corruption corrodes the spine of a nation and in the ultimate
eventuality makes the economy sterile.
24. The appeals, being sans substratum, stand dismissed.
............................................J.
[Dr. B. S. Chauhan]
............................................J.
[Dipak Misra]
New Delhi;
May 29, 2012
-----------------------
[1] AIR 2006 SC 836
[2] (2001) 1 SCC 691
[3] (2000) 8 SCC 571
[4] AIR 2008 SC 3217
[5] (2009) 15 SCC 200
[6] AIR 2009 SC 2022
[7] AIR 1998 SC 1895
[8] 1995 Supp (3) SCC 704
[9] (2009) 10 SCC 425
