Section 7 - PCA
Acquittal recorded by the trial court is a "possible view"
Prevention of Corruption Act, 1988, Section 7 - 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 reversing the judgment of acquittal is fit to be set aside.
Held,
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 appellant-accused, 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 PW-3, 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 PW-11 till 07:00 p.m. There are material contradictions in the deposition of PW-2 and it is clear from his deposition that he has developed animosity against the appellant and he himself has stated in the cross-examination that he was insulted earlier as he belonged to scheduled caste. Further there is no answer from PW-11 to conduct the phenolphthalein test after about an hour from handing over tainted notes and cell phone. [Para 11]
Appellant aged about 70 years and already dismissed from service, sentence reduced to that of one year and one month rigorous imprisonment as undergone
Prevention of Corruption Act, 1988, Sections 7, 13(2) read with 13(1)(d) - Fact that the appellant is a senior citizen aged about 70 years and that he is already dismissed from service, the ends of justice would be met if the sentence of two years rigorous imprisonment as imposed by the learned Special Court, confirmed by the High Court, is reduced to that of one year and one month rigorous imprisonment as undergone
Mere recovery by itself cannot prove the charge of the prosecution against the accused
Prevention of Corruption Act, 1988, Sections 7, 13(1)(d)(i) and (ii) - Mere recovery by itself cannot prove the charge of the prosecution against the accused - 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 gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence.
Subsistence allowance
Prevention of Corruption Act, 1988 (49 of 1988) Section 7, 13 - Haryana Civil Services (Punishment and Appeal) Rules, 1987, Rule 7(2)(f) – Case for payment of difference of subsistence allowance from 50% to 75% - Has been convicted for abuse of public office and for demanding bribe to settle a widow‟s pension claim - Neither does equity nor discretion come to the aid of the petitioner - It is always open to the competent authority to pass a separate order on the claim for subsistence allowance as per the dictates of reason circumscribed by rules - And Rules apart, the conscience of the Court would not allow such relief to flow in case of a conviction in a corruption case, be it that appeal is pending – His rights if any, will remain subject to out come of Criminal Appeal.
(2018)193 PLR 201
Mere recovery by itself cannot prove the charge of the prosecution against the accused
Prevention of Corruption Act, 1988, Section 7 - Mere recovery by itself cannot prove the charge of the prosecution against the accused . C.M. Girish Babu v. CBI, Cochin, High Court of Kerala 2009 SCeJ 001 and in the case of B. Jayaraj v. State of Andhra Pradesh 2014 SCeJ 003, relied.
Conversation stored in the C.D. being ‘electronic evidence’ of secondary, in nature, Certificate under Section 65B of the Evidence Act is mandatory
Evidence Act , 1872 (1 of 1872) Section 65B - Prevention of Corruption Act, 1988 (49 of 1988) Section 7 and 13(1)(d), 13(2) - Transcript of conversation recorded in the voice recorder before the trap was laid - Plea that the conversation discloses ‘demand’ of illegal gratification by accused - Investigating Officer stated that, after recording the conversation between the complainant and the accused on the digital voice recorder, later it was stored on the ‘Compact Disc’ and conversation in the digital voice recorder was deleted - In cross-examination, Investigating Officer admitted that, the person who had transferred dated from Digital Voice Recorder to Compact Disc, had not given report/certificate under Section 65B of the Evidence Act nor the prosecution has examined him - The conversation stored in the C.D. being ‘electronic evidence’ of secondary, in nature, Certificate under Section 65B of the Evidence Act is mandatory - Therefore, the alleged conversation between the complainant and the accused, is required to be kept out of consideration.
Illegal gratification is sine-qua-non for constituting an offence under the Prevention of Corruption Act, 1988
Prevention of Corruption Act, 1988 (49 of 1988) Section 7 and 13(1)(d), 13(2) - “Demand” and “acceptance” - Illegal gratification is sine-qua-non for constituting an offence under the Prevention of Corruption Act, 1988 - Mere recovery of tainted money is not sufficient - Mere receipt of amount by accused is not sufficient to fasten guilt in absence of any evidence with regard to “demand” and “acceptance” of the amount as illegal gratification - In consideration of the facts of the case and evidence renders prosecution’s case, doubtful and unclear on both the facts in issue i.e. “Demand” and “acceptance” is not proved.