Tags PC Act

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)