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2018 DIGILAW 265 (GAU)

TARINI KALITA v. STATE OF ASSAM

2018-02-13

HITESH KUMAR SARMA

body2018
JUDGMENT/ORDER : 1. This appeal, under Section 374 (2) of the Cr.P.C., is preferred against the judgment and order, dated 19-11-2012, passed by learned Special Judge, Assam, in Special Case No. 38 of 2012, convicting the accused-appellant, under Section 8 of the Prevention of Corruption Act (for short, PC Act), to undergo rigorous imprisonment for 6 (six) months and to pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for 2 (two) months. 2. I have heard Mr. T.J. Mahanta, learned senior counsel, assisted by Mr. A. Bhattacharya, learned counsel, appearing on behalf of accused-appellant. I have also heard Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam. 3. The prosecution case, in brief, is that the Sub-Divisional Judicial Magistrate No. I, Kamrup (M), Guwahati, Sri Biprajit Roy, lodged an FIR with the Officer-in-Charge of Panbazar Police Station stating that on that day while he was working in his Court chamber, one bail bond of surety of Gopal Kalita, in connection with Chandmari Police Station Case No. 290/2011, was rejected and, then, the present accused-appellant, Tarini Kalita, came to his chamber and offered Rs.500/- as bribe for accepting the bail bond, which he had already rejected. 4. On the basis of the aforesaid FIR, Panbazar Police Station Case No. 275/2012, under Section 8 of the PC Act was registered and the Additional Superintendent of Police, i/c Panbazar Division, Sri Ratul Gogoi, carried out investigation of the case, collected evidence, arrested the accused-appellant, and finally, submitted the charge-sheet against the accused-appellant for commission of an offence under the aforesaid section of law. The accused-appellant was arrested and remanded to judicial custody. 5. After exhausting all required formalities, the learned trial Court of Special Judge, Assam, framed a formal charge against the accused-appellant under Section 8 of the PC Act, to which the accused-appellant pleaded innocence. Hence, the trial commenced. 6. In this case, prosecution examined as many as 4 witnesses, including the Sub-Divisional Judicial Magistrate No. 1 and the Investigating Police Officer. The defence examined none. The defence subjected the prosecution witnesses to cross-examination. The defence case is of total denial. In his statement, recorded under Section 313 Cr.P.C., the accused-appellant denied the fact of commission of the offence alleged. 7. On completion of the trial, the accused-appellant was convicted and sentenced by the learned Special Judge, Assam, as indicated above. 8. The defence examined none. The defence subjected the prosecution witnesses to cross-examination. The defence case is of total denial. In his statement, recorded under Section 313 Cr.P.C., the accused-appellant denied the fact of commission of the offence alleged. 7. On completion of the trial, the accused-appellant was convicted and sentenced by the learned Special Judge, Assam, as indicated above. 8. I have perused the impugned judgment as well as the record of the learned trial Court including the evidence of the witnesses for the prosecution. 9. On perusal of the evidence of the complainant, Sri Biprajit Roy, examined as PW1, it appear that while he rejected the bail bond in a case, the accused-appellant approached him for acceptance of the bail bond and he got out a five hundred rupee denomination note from his pocket, which the learned Magistrate read as an attempt to bribe him for acceptance of bail bond. The accused-appellant was, at the instance of PW1, caught by the office peon, Dharma Deka, who was examined as PW2. 10. The evidence of PW2 although is found to have tallying with the evidence of the PW1, so far the nabbing of the accused-appellant is concerned, yet his evidence does not reveal that he had witnessed the commission of the alleged offence by the accused-appellant, i.e., offering of Rs.500/- to PW1. 11. The evidence of PW3, who was the in-charge Additional Superintendent of Police at the relevant point of time and also carried out the investigation of the case shows that the informant/PW1 did not tell him that he knew about taking of money by the accused-appellant from some other person for bribing him for acceptance of bail bond. 12. The evidence of PW4, Sub-Inspector of police, does not appear to be relevant, and his role, in this case, was limited only to receipt of the FIR and to place it before appropriate authority for endorsement to a higher officer only. 13. In the impugned judgment itself, at para-10, the learned trial Court is found mentioning that the informant is the only witness to the occurrence and that the accused-appellant had admitted that a currency note of Rs.500/- came out of his pocket and the Magistrate misunderstood the same to be bribe. 13. In the impugned judgment itself, at para-10, the learned trial Court is found mentioning that the informant is the only witness to the occurrence and that the accused-appellant had admitted that a currency note of Rs.500/- came out of his pocket and the Magistrate misunderstood the same to be bribe. This finding, recorded by the learned trial Court appears to be perverse on the materials on record as the PW1 himself stated that he thought it to be bribe to him which amounts to presumption only. Therefore, it cannot be said that he is witness to offer of the bribe. On other counts also such finding is perverse as the evidence of PW1, in his cross-examination, is that he only thought it to be an offer of bribe is indicative of the fact that he was not sure as to whether the accused-appellant intended to offer the aforesaid money or not. There is also no evidence on record to indicate the exchange of words between the informant and the accused-appellant to the effect that the accused-appellant wanted him to accept the money. 14. The evidence of PW1 makes it appear that there was no demand from his side but there was a presumed offer by the accused-appellant. In that event also the offer made by the accused-appellant has to be established by the prosecution beyond all reasonable doubt. In this context, this Court can usefully refer to the decision of the Hon’ble Supreme Court in the case of V. Sejappa vs. State by police Inspector Lokayukta, Chitradurga, reported in (2016) 12 SCC 150 , wherein at paragraph-10 and 18 observed as follows. "Para 10 In order to constitute an offence under Section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 , wherein this Court held as under:- 7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu v. CBI (2009) 3 SCC 779 ." "Para 18 It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act." 15. Although the said decision is in respect of acceptance of bribe and the case at hand is in respect of offer of bribe, yet the standard of proof in both the cases cannot be distinguished. 16. The aforesaid decision rendered by the Honble Supreme Court deals with an offence under Section 7 of the PC Act and the offence in the instant case is under Section 8 of the PC Act. But, when demand and acceptance are required to be proved in an offence under Section 7 of the PC Act, on the same principle, the offer has also to be proved. 17. That being so, in the instant case, as discussed above, there is no evidence to prove the alleged offence against the accused-appellant, under Section 8 of the PC Act, beyond all reasonable doubt. 18. Therefore, in view of the discussions made above, in the considered view of this Court, the appeal deserves to be allowed. 19. Accordingly, the appeal is allowed. The judgment and order, dated 19-11-2012, passed by learned Special Judge, Assam, in Special Case No. 38 of 2012, is set aside. 20. Send down the LCR along with a copy of this judgment and order.