S.DINESH KUMAR Vs. STATE TR.INSPECTOR & ANR
Supreme Court of India (Full Bench (FB)- Three Judge)
Appeal (Crl.), 162 of 2012, Judgment Date: Dec 12, 2014
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.162 OF 2012
S. DINESH KUMAR .... Appellant
Versus
STATE TH. INSPECTOR & ANR. .... Respondents
J U D G M E N T
Uday Umesh Lalit, J.
1. This appeal arises out of judgment and order dated 27.07.2011 passed
by the High Court of Karnataka at Bangalore in Criminal Appeal No.1057 of
2005 setting aside the judgment of acquittal passed by the Special Judge at
Mysore in Special Case No.95 of 1995 and convicting the appellant herein
for the offences punishable under Section 7 and 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act')
2. According to the prosecution complainant Jayaramu was the proprietor
of Murugan Furniture and Woodworks and because of arrears of sales tax in
the sum of Rs.30,302/- the machinery in his factory was sealed. He had
therefore filed writ petition in which the High Court had directed the
authorities to consider his representation and that upon payment of 50 per
cent of the amount in question, the attachment be lifted and the machinery
be released in his favour. In this connection he approached the appellant
who was then working as Commercial Tax Inspector (Recovery) and was told
that for removal of seals, Rs.1,000/- would be required to be paid to the
appellant by way of gratification. The complainant then approached
Lokayukta Police on 09.07.1993 and lodged his complaint Ext.P-1. After
taking requisite steps a trap was laid.
3. On 09.07.1993 the appellant along with his driver (A-2) and peon came
to the office of the complainant and demanded the amount of Rs.1,000/-. As
directed by the appellant, the complainant gave the amount to the driver (A-
2) who kept the amount with himself. After a signal was given, Lokayukta
Police came and caught hold of the appellant as well as the driver (A-2)
from whose person the amount of Rs.1,000/- was recovered. On completion of
investigation and grant of sanction vide Ext.P-2, the charge sheet was
submitted.
4. The Special Judge acquitted the appellant and the driver (A-2)
mainly on two grounds. It was observed that the amount of Rs.1,000/- was
not given towards the bribe but was paid towards the arrears of tax and
that, the machinery having been released in favour of the complainant no
work was in fact pending. In the Appeal preferred by the State it was
submitted that 50% of the arrears on tax would come to about Rs. 15,000/-
and it was unimaginable that the complainant would pay Rs. 1,000/- only
towards arrears of tax. It was further submitted that the facts on
record would show that the complainant PW1 and shadow witness Umesh PW3 had
deposed consistently about the appellant demanding Rs. 1,000/- as bribe and
that the amount was paid as per his directions to accused No.2.
5. The High Court after analyzing the evidence on record found that in
the explanation given by the appellant (Exhibit P-9) immediately after the
trap, nothing was suggested that the amount in question was received
towards arrears of taxes. On the other hand the explanation offered was
that the amount was forcibly thrust by the complainant. After going
through the entirety of the matter, the High Court found the approach
adopted by the Special Judge to be perverse and that the acquittal had
resulted in miscarriage of justice. The High Court, therefore, convicted
the appellant for the offence (a) under Section 7 of the Prevention of
Corruption Act, 1988 sentencing him to undergo simple imprisonment for six
months and to pay fine of Rs. 5,000/-, in default whereof to undergo
further simple imprisonment for one month (b) and under Section 13(1)d
read with Section 13(2) of the Prevention of Corruption Act, 1988
sentencing him to undergo imprisonment for one year to pay fine of Rs.
15,000/- and in default whereof to undergo simple imprisonment for 3
months. The acquittal of accused No. 2 was affirmed.
6. In this appeal after grant of special leave to appeal, the appellant
was directed to be released on bail. Mr. P. Vishwanatha Shetty, Learned
Senior Advocate appearing for the appellant submitted that he had visited
the premises of the complainant in connection with recovery of tax which
was evident from the fact that the receipt book was lying in the vehicle.
Further, the machinery having been de-sealed, there was in fact no occasion
for the complainant to pay the bribe amount to the appellant. Mr. V.N.
Raghupathy, Learned Advocate appearing for the state submitted that though
the seal in respect of machinery was opened the lock was yet to be removed
and that the view taken by the High Court was absolutely correct.
7. Having heard the learned counsel and after having perused the entire
material on record, we affirm the view taken by the High Court. We are
conscious of the fact that in an appeal against acquittal, if two views are
possible and the court below has acquitted the accused, the appellate court
would not be justified in setting aside the acquittal merely because the
other view is also possible. In the present case, the recovery of bribe
amount from the person or possession of the accused having being firmly
established, the immediate explanation offered by the appellant (namely
Exhibit P-9) is absolutely crucial. Secondly, it is unimaginable that as
against 50% of the arrears of taxes which the complainant was supposed to
deposit, Rs. 1000/- only would be paid and accepted. The aspects of demand
and acceptance having been established, in our assessment no two views are
possible in the matter and the approach adopted by the Special Judge was
perverse, justifying interference by the High Court.
8. We, therefore, dismiss this appeal. The bail bonds are cancelled and
appellant is directed to surrender within three weeks from today to undergo
the remaining sentence.
.............................J.
(Dipak Misra)
.............................J.
(Rohinton Fali Nariman)
.............................J.
(Uday Umesh Lalit)
New Delhi,
December 12, 2014
ITEM NO.1B COURT NO.6 SECTION IIB
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 162/2012
S.DINESH KUMAR Appellant(s)
VERSUS
STATE TR.INSPECTOR & ANR Respondent(s)
Date : 12/12/2014 This appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. P. Vishwanatha Shetty, Sr. Adv.
Mr. Shailesh Madiyal, Adv.
For Respondent(s) Mrs. Vaijayanthi Girish, Adv.
Mr. V. N. Raghupathy, Adv.
Mr. Parikshit P. Angadi, Adv.
Hon'ble Mr. Justice Uday Umesh Lalit pronounced the non-reportable
judgment of the Bench comprising Hon'ble Mr. Justice Dipak Misra, Hon'ble
Mr. Justice Rohinton Fali Nariman and His Lordship.
The appeal is dismissed. The bail bonds are cancelled and appellant
is directed to surrender within three weeks from today to undergo the
remaining sentence in terms of the signed non-reportable judgment.
(R.NATARAJAN) (H.S. PARASHER)
Court Master Court Master
(Signed non-reportable judgment is placed on the file)