In the judgment of the case – N. Vijayakumar v. State of Tamil Nadu, delivered on February 3, 2021, a three-judge bench of the Supreme Court, consisting of Justices Ashok Bhushan, R. Subhash Reddy and M.R.Shah, has in its ruling very unambiguously stated that mere possession or recovery of currency notes is not sufficient to constitute such offence (of bribery). In several judgments, the SC has held that even the presumption under section 20 of the Prevention of Corruption Act, 1988 can be drawn only after the 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 appellant-sole accused, who was working as Sanitary Inspector in Madurai Municipal Corporation, has filed appeals in this case aggrieved by the conviction recorded and sentence imposed by Madurai Bench of the Madras High Court through judgments and orders of August 28, 2020 and September 15 and 22, 2020 under sections 7 and 13(2) read with13(1)(d) of the Act alleging that he had demanded an amount of Rs 500/- and a cell phone as illegal gratification from Pw-2 ( D.Gopal), who was working as Supervisor in a voluntary service organization called Neat and Clean Service Squad (NACSS).
It was the case of the prosecution that to send his report for extension beyond the period of March, 2003, when the PW-2 had approached him on October 9-10 , 2003, such a demand was made, as such the appellant being a public servant demanded and accepted illegal gratification on October10, 2003,as a motive or reward to do an official act in exercise of his official function and thereby he had committed misconduct punishable under sections 7, 13(2) and 13(1)(d) of the Act. On denial of charge, charges were framed against him and he had pleaded not guilty. Therefore, he was tried before the Special Court.
After considering the oral and documentary evidence on record, the trial Court acquitted the appellant on February 25, 2014. Aggrieved by the said judgment, the State Govt. preferred criminal appeal before the High Court, which through the impugned judgment reversed the acquittal and convicting the appellant imposed the sentence of RI for one year and penalty of Rs 5,000/- Against the HC judgment, the appellant had moved the SC.
The SC has pointed out that the expressions "erroneous", "wrong" and "possible" are defined in Oxford English Dictionary as under:
- "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."
The SC has emphasised 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 area 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 whether it is agreed to or disagreed with by a higher court. The fundamental difference 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 HC agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the HC supplanted over and above the view of the trial court.
A consideration on the basis of which the trial court had founded its order of acquittal in the 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 section378CrPC was not called for.
By applying the principles laid down in the cited judgments of the Supreme Court and evidence on record of this case, The SC has stated that in its considered opinion that having regard to material contradictions noticed by it and also as referred to by the trial Court in its judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by the SC in the cited judgments, even assuming that another view is possible, the same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged.
The SC has held that the trial court and the HC are not correct in holding that the demand alleged to be made by the accused is proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact, such possession was 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. 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.
According to the Supreme Court, 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 can follow only if there is proof of demand.
The SC has held that demand for and acceptance of bribe has not been proved beyond reasonable doubt. Having regard to the evidence on record, the acquittal recorded by the trial court is a possible view (and) as such the High Court’s judgment is fit to be set aside. The SC has allowed the appeals and set aside the impugned judgments of conviction delivered on August28 and September22, 2020 and orders imposing sentence. The Court has also directed the release of the appellant forthwith.
