High Court of Madras

State Vs. S. Bose and Ors.

MANU/TN/1025/2018

02.03.2018

Criminal

In bribe cases, it is for the prosecution to prove demand and acceptance beyond reasonable doubt

The Appellants 1 & 2 were tried before the learned Assistant and Sessions Judge-cum-Chief Judicial Magistrate, on the allegation that, on 5th April, 2002, first Respondent who was working as sub inspector of survey received illegal gratification of Rs. 500 through the second Respondent from the de facto complainant. The first respondent was charged for the offence under Section 7 of the Prevention of Corruption Act, 1988 while the second Respondent was charged for the offence under Section 7 of the Prevention of Corruption Act, 1988 read with Section 34 of Indian Penal Code, 1860 (IPC) and both the Respondents were tried for the offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act. The Trial Court found that, the prosecution has not proved its case beyond reasonable doubt and therefore, giving the benefit of doubt to both the respondents and they were acquitted from the charges. Aggrieved against the judgment of the Trial Court, the State has preferred the present appeal.

In instant case, PW-2, being the only eye-witness to the occurrence and also being the defacto complainant under whose instance trap proceedings was arranged has not supported the case of the prosecution. Hence, the prosecution has not substantiated the charges against the Respondents/A1 and A2 before the trial Court. Therefore, under these circumstances, the trial Court has acquitted the Respondents/accused.

The Supreme Court in V. Sejappa vs. State by Police Inspector Lokayukta, Chitradurga, held that, while dealing with the contention that, it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification.

The acid test, which is required in trap cases of receipt of illegal gratification is the phenolphthalein test. In the present case, the money, said to have been recovered from a register which was kept on the table of the first respondent, gave a positive reaction to phenolphthalein. However, the officials of the Vigilance and Anti Corruption have not made any effort to find out whether the hands of the first respondents/accused showed positive reaction for phenolphthalein. Without there being conclusive proof of positive reaction in the hands of the first Respondent for phenolphthalein, the Respondent cannot be held responsible for the money that was recovered from the table of the first Respondent. Even P.W.2 has spoken that, he gave the money to the second Respondent, after receiving money from him and in turn the second Respondent kept the money in the register which was kept on the table of the first Respondent. It cannot be inferred that the money, that was kept on the table of the first respondent was for the purpose of giving the same as illegal gratification to the first Respondent.

Without there being documentary evidence to prove that the money, that was placed on the table of first respondent was towards illegal gratification to first respondent and there being no proof that first respondent received the money, the prosecution has miserably failed to bring home the charge against first respondent. The decision in Sejappa's case relied on by Respondents is squarely applicable to the facts of the present case.

Similarly, the charge against second respondent under Section 7 of the Prevention of Corruption Act read with Section 34 of IPC cannot be sustained, in the absence of proof of demand, acceptance and recovery directly from the respondents. Mere oral evidence stating that the Respondents had asked for illegal gratification for which the trap was set through the officials of Vigilance and Anti Corruption in the absence of documentary evidence coupled with ocular testimony, the Respondents cannot be held guilty of either receiving illegal gratification or for second Respondent having channelised the bribe to first Respondent.

It is the cardinal principle in bribe cases is that, it is for the prosecution to prove demand and acceptance beyond reasonable doubt. In present case, neither the documentary evidence nor the ocular testimony supports the case projected by the prosecution. When the trial Court has acquitted the Respondents on the ground that, the demand of bribe has not been proved beyond reasonable doubt and extended the benefit of doubt to the Respondents, in the absence of the prosecution substantiating the contention through requisite evidence before this Court, present Court cannot find any error in the judgment passed by the trial court acquitting the Respondents. The judgment of acquittal passed by trial Court is confirmed and the appeal is dismissed.

Relevant

V. Sejappa vs. State by Police Inspector Lokayukta, Chitradurga [MANU/SC/0494/2016
: AIR 2016 SC 2045]

Tags : Illegal gratification Proof Acquittal

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