N. VIJAYAKUMAR versus STATE OF TAMIL NADU on 3 February 2021

[2021] 2 S.C.R. 63

N. VIJAYAKUMAR

v.

STATE OF TAMIL NADU

(Criminal Appeal Nos. 100-101 of 2021)

FEBRUARY 03, 2021

[ASHOK BHUSHAN, R. SUBHASH REDDYAND M.R. SHAH, JJ.]

Prevention of Corruption Act, 1988 – ss.7, 13(2) r/w 13(1)(d)– Appellant-accused was Sanitary Inspector in 8th Ward of MaduraiMunicipal Corporation – Case of prosecution that he demandedRs.500/- and a cell phone as illegal gratification from PW-2, tosend his report for extension of work, working as Supervisor in anOrganisation which was given sanitation work on contract basis inthe aforesaid ward – Trial court acquitted the appellant – Acquittalreversed by High Court – On appeal, held: There are materialcontradictions in the deposition of key witnesses – Demand for andacceptance of bribe amount and cell phone by the appellant notproved beyond reasonable doubt – Mere recovery of tainted money,divorced from the circumstances under which such money and articleis found is not sufficient to convict the accused when the substantiveevidence in the case is not reliable – Acquittal recorded by the trialcourt is a possible view – Judgment of the High Court set aside –Code of Criminal Procedure, 1973 – s.378.

Allowing the appeals, the Court

HELD : 1.1 PW-2 is the key witness. The sanctioningauthority, who sanctioned to prosecute the appellant wasexamined as PW-1 and the complainant was examined as PW-2.It is evident from the deposition of PW-2, 3, 5 and 11 that theyreached the office of the accused at 05:30 p.m. on 10.10.2003,and at that point of time the accused was not found in the seatand they have waited for him, and appellant has come to the officeat 05:45 p.m. on his bike and took his seat. PW-2, in his depositionhas stated that when he met the appellant-accused along withother witnesses, appellant has made a demand for Rs.500/- and

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Acell phone. He has stated that in view of such demand he hashanded over the powder coated currency notes and cell phonewhich were received by the accused and kept in the left sidedrawer of the table. The official witness is examined as PW-3. Healso stated in his deposition, that when they reached the office ofthe accused, accused was not in the seat. Therefore, they haveBwaited and accused arrived in the office at 05:45 p.m. PW-2 in hisdeposition has clearly stated that he met the accused earlierseveral times and again when he met on 09.10.2003 along withPW-5, the appellant-accused has demanded for Rs.500/- and acell phone as illegal gratification. In the cross-examination PW-C2, has admitted that he never saw the accused earlier and theappellant has made a demand when he met firstly on 09.10.2003.It is also clearly deposed by PW-2 in the cross-examination thathe was ill treated by the accused several times earlier as hebelonged to scheduled caste community. From his deposition itis clear that there were ill feelings between the appellant and theDPW-2. It is also clear from the evidence, after handing overcurrency and cell phone, he along with other witnesses who haveaccompanied him they came out of the office and signalled to theinspector. PW-2 also admitted in the cross-examination that hewas not having any details regarding the purchase of M.O.2 cellEphone. It is also clear from the evidence that though the trap wasat about 05:45 p.m., phenolphthalein test was conducted only at07:00 p.m. There is absolutely no evidence to show that whysuch inordinate delay occurred from 05:45 p.m. to 07:00 p.m.The office of the Town Assistant Health Officer and other officialsof the department is also near to the office of the appellant. PW-F3 in clear terms, has deposed that only on demand of anti-corruption officials, the accused had taken and produced themoney and cell phone, which was in the drawer of the table. TheCircle Health Inspector of Madurai Corporation, who wasexamined as PW-4 has deposed in the cross-examination that heGhad no idea what was going on before he reached the office andhe has also deposed that he was not aware about Rs.500/- andcell phone, by whom and when it was kept. He, too has deposedin the cross-examination that only on the direction of the inspector H

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the appellant-accused has taken out the money and the cell phone.The deposition of PW-5 is also in similar lines. Another keywitness on behalf of the prosecution is PW-11, i.e., the DeputySuperintendent of Police, Bodinayakkanur Sub-Division, who wasworking as the Deputy Superintendent of Police, Vigilance andAnti-corruption Wing, Madurai during the relevant time. He alsoin his deposition has clearly stated that the appellant-accusedwas tested with the prepared Sodium Carbonate Solution at 19:00hrs. It is clear from the deposition of all the witnesses, i.e., PW-2, 3, 5 and 11 that trap was at about 05:45 p.m. and the hands ofthe appellant were tested only at 07:00 p.m. Further in the cross-examination, PW-11 has clearly stated that when they weremonitoring the place of occurrence for about one hour and duringthat period many persons came in and out of the office of theappellant. Added to the same, admittedly, after completion of thephenolphthalein test, statement of the appellant was not recordedas required under Rule 47 Clause 1 of the Vigilance Manual.Further PW-11 also clearly deposed in the cross-examination thathe did not test the hands of the appellant-accused immediatelyafter payment and handing over of the money and cell phone.Further PW-4 and PW-11 both have stated in their evidence that,only when TLO has asked the bribe amount and cell phone, theaccused produced the same by taking out from the left side drawerof his table. Mere recovery of tainted money, divorced from thecircumstances under which such money and article is found isnot sufficient to convict the accused when the substantiveevidence in the case is not reliable. In view of the materialcontradictions as noticed in the deposition of key witnesses, thebenefit of doubt has to go to the accused-appellant. Having regardto material contradictions and also as referred to in the trial courtjudgment, it can be said that acquittal is a “possible view”. Evenassuming another view is possible, same is no ground to interferewith the judgment of acquittal and to convict the appellant for theoffence alleged. From the evidence, it is clear that when theInspecting Officer and other witnesses who are examined onbehalf of the prosecution, went to the office of the appellant-accused, appellant was not there in the office and office was open AB

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Aand 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 thecurrency and cell phone were taken out from the drawer of thetable by the appellant at their instance. There is also no reason,when the tainted notes and the cell phone were given to theappellant at 05:45 p.m. no recordings were made and the appellantBwas not tested by PW-11 till 07:00 p.m. There are materialcontradictions in the deposition of PW-2 and it is clear from hisdeposition that he has developed animosity against the appellantand he himself has stated in the cross-examination that he wasinsulted earlier as he belonged to scheduled caste. Further thereCis no answer from PW-11 to conduct the phenolphthalein testafter about an hour from handing over tainted notes and cellphone. The trial court has disbelieved PW-2, 3 and 5 by recordingseveral valid and cogent reasons, but the High Court, withoutappreciating evidence in proper perspective, has reversed theview taken by the trial court. Further, the High Court also hasDnot recorded any finding whether the view taken by the trial courtis a “possible view” or not, having regard to the evidence onrecord. Though the High Court was of the view that PW-2, 3 and5 can be believed, unless it is held that the view taken by thetrial court disbelieving the witnesses is not a possible view, theEHigh Court ought not have interfered with the acquittal recordedby the trial court. In view of the material contradictions, theprosecution has not proved the case beyond reasonable doubt toconvict the appellant. [Paras 9, 11][71-C-H; 72-A-H; 73-A-B;77-A-G]

F1.2 Mere recovery by itself cannot prove the charge of theprosecution against the accused. To prove the charge, it has tobe proved beyond reasonable doubt that accused voluntarilyaccepted money knowing it to be bribe. Absence of proof ofdemand for illegal gratification and mere possession or recoveryof currency notes is not sufficient to constitute such offence. EvenGthe presumption under Section 20 of the Act can be drawn onlyafter demand for and acceptance of illegal gratification is proved.Initial presumption of innocence in the criminal jurisprudencegets doubled by acquittal recorded by the trial court. In view ofthe contradictions noticed in the depositions of key witnessesH

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examined on behalf of the prosecution, the demand for andacceptance of bribe amount and cell phone by the appellant, isnot proved beyond reasonable doubt. Having regard to suchevidence on record the acquittal recorded by the trial court is a“possible view” as such the judgment of the High Court is fit tobe set aside. Before recording conviction under the provisionsof Prevention of Corruption Act, courts have to take utmost carein scanning the evidence. Once conviction is recorded underprovisions of Prevention of Corruption Act, it casts a social stigmaon the person in the society apart from serious consequences onthe service rendered. At the same time it is also to be noted thatwhether the view taken by the trial court is a possible view ornot, there cannot be any definite proposition and each case hasto be judged on its own merits, having regard to evidence onrecord. The impugned judgments of conviction dated 28.08.2020and 22.09.2020 and orders imposing sentence dated 15.09.2020and 29.09.2020 are set aside. [Paras 12, 14][77-G-H; 78-A-B;79-E-G; 80-D]

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Murugesan & Ors. v. State through Inspector of Police(2012) 10 SCC 383 : [2012] 13 SCR 1; Chandrappa & Ors. v. State of Karnataka (2007) 4 SCC 415 : [2007]2 SCR 630; Hakeem Khan & Ors. v. State of MadhyaPradesh (2017) 5 SCC 719 : [2017] 2 SCR 735; C.M.Girish Babu v. CBI, Cochin, High Court of Kerala(2009) 3 SCC 779 : [2009] 2 SCR 1021; B. Jayaraj v.State of Andhra Pradesh (2014) 13 SCC 55 : [2014] 4SCR 554 – relied on.

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Anil Rai etc. v. State of Bihar (2001) 7 SCC 318 : [2001]1 Suppl. SCR 298 – referred to.

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A[2014] 4 SCR 554 relied onPara 12

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 100-101 of 2021

From the Judgment and Order dated 22.09.2020 and 29.09.2020of the High Court of Judicature at Madras at Madurai in Crl. A.(MD)BNo. 6/2015

S. Nagamuthu, Jayanth Muth Raj, Sr. Advs., M.P. Parthiban, A.S.Vairawan, Santhosh, Mani Prabhu, R. Sudhakaran, M. Yogesh Kanna,Raja Rajeshwaran S., Aditya Chadha, Advs. for the appearing parties.

CThe Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

1. Leave granted.

2. The sole accused in Special Calendar Case No.49 of 2011 onthe file of Special Court for Trial of Prevention of Corruption Act Cases,DMadurai, has filed these appeals, aggrieved by the conviction recordedvide judgment dated 28.08.2020 and 22.09.2020 and sentence imposedvide order dated 15.09.2020 and 29.09.2020 by the Madurai Bench ofthe Madras High Court under Sections 7 and 13(2) read with 13(1)(d) ofthe Prevention of Corruption Act, 1988 (for short, ‘the Act’).

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3. The appellant-accused was working as Sanitary Inspector in8th Ward of Madurai Municipal Corporation. He was chargesheeted forthe offence under Sections 7, 13(2) read with 13(1)(d) of the Act allegingthat he demanded an amount of Rs.500/- and a cell phone as illegalgratification from PW-2 (Thiru. D. Gopal), who was working as SupervisorFin a Voluntary Service Organisation called Neat And Clean ServiceSquad (NACSS), which was given sanitation work on contract basis inWard No.8 of Madurai Corporation. It was the case of the prosecutionthat to send his report for extension of work beyond the period of March2003, when PW-2 has approached him on 09[th] and 10[th] of October 2003,such a demand was made, as such appellant being a public servantGdemanded and accepted illegal gratification on 10[th] of October 2003 asa motive or reward to do an official act in exercise of his official functionand thereby he has committed misconduct which is punishable underSections 7, 13(2) and 13(1)(d) of the Act. On denial of charge, chargeswere framed against him for the aforesaid offences and he has pleaded H

not guilty. Therefore, he was tried before the Special Court for theaforesaid alleged offences. During the trial, on prosecution side, 12witnesses were examined, i.e. PW-1 to PW-12; and 17 exhibits – Ex.P1to P.17 and M.O.1 to M.O.4. have been marked. No defence witnesswas examined and Ex.D1 to D3 were marked during the cross-examination of PW-6.

4. By considering the oral and documentary evidence on record,trial court, by judgment dated 25.02.2014, acquitted the appellant.Aggrieved by the judgment of the Special Court, State has preferredCriminal Appeal (MD) No.6 of 2015 before the Madurai Bench of MadrasHigh Court. The Madurai Bench of Madras High Court, by impugnedjudgment and orders, has reversed the acquittal, and convicted theappellant for the offences under Section 7, 13(2) and 13(1)(d) of the Actand imposed the sentence of rigorous imprisonment for one year andimposed the penalty of Rs.5000/-. Aggrieved by the conviction recordedand sentence imposed by the impugned judgments and orders passed bythe High Court, accused is before this Court in these appeals.

5. We have heard Sri S. Nagamuthu, learned senior counselappearing for the appellant and learned counsel for the State of TamilNadu.

6. Sri Nagamuthu, learned senior counsel appearing for theappellant, by taking us to the evidence and other material on record, hassubmitted that, the well reasoned judgment of the trial court, which wasrendered by appreciating oral and documentary evidence on record, isreversed by the High Court without recording valid and cogent reasons.By relying on a judgment of this Court in the case of Murugesan &Ors. v. State through Inspector of Police (2012) 10 SCC 383, mainlyit is contended that the finding recorded by the trial court is a “possibleview” having regard to evidence on record and even if other view ispossible, same is no ground to reverse the acquittal and to convict theaccused. By referring to findings recorded by the trial court, it isstrenuously argued that the view taken by the trial court is a “possibleview” and without recording any contra finding to the same, the HighCourt has convicted the appellant. It is submitted that there is no findingrecorded by the High Court anywhere in the judgment that the viewtaken by the trial court is not a “possible view”. It is submitted that inview of the material contradictions, the trial court has disbelieved thetestimony of PW-2, 3 and 5 by recording valid reasons, but the High AB

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ACourt, without assigning any reasons, has believed these witnesses. It issubmitted that even if the High Court was of the view that PW-2, 3 and5 can be believed, unless it is held that the view taken by the trial courtdisbelieving these witnesses is not a “possible view”, High Court oughtnot have interfered with the judgment of acquittal recorded by the trialcourt. It is also submitted that having regard to reasons recorded, findingsBrecorded by the trial court cannot be said to be either erroneous orunreasonable. By further referring to the oral evidence on record, it issubmitted that there are material contradictions in the testimony of crucialwitnesses, and without noticing the same the High Court has convictedthe appellant and imposed the sentence. Further it is submitted that initiallyCby judgment dated 28.08.2020, High Court has recorded the convictionof the appellant, only for the offence under Section 13(2) read with13(1)(d) of the Act and imposed the sentence of one year imprisonmentand to pay a fine of Rs.5000/- vide order dated 15.09.2020. However,thereafter again the appeal was listed under the caption “For beingmentioned” on its own by the Court on 22.09.2020 and convicted theDappellant for the offence under Section 7 of the Act also and by furtherorder dated 29.09.2020 imposed the sentence of one year rigorousimprisonment for the offence under Section 7 of the Act. It is submittedthat the said judgment of conviction rendered on 22.09.2020 and theorder of sentence dated 29.09.2020 is in violation of Section 362 of theECode of Criminal Procedure. It is submitted that once the judgment isrendered and conviction is recorded it was not open either to list thematter for being mentioned or to convict the appellant for the offenceunder Section 7 of the Act also. Lastly it is submitted that the judgmentin this case was reserved on 17.12.2019 and the same was pronouncedafter a period of more than six months, i.e., on 28.08.2020 as such sameFis in violation of guidelines contained in the judgment of this Court in thecase of Anil Rai etc. v. State of Bihar (2001) 7 SCC 318.

7. On the other hand, Sri M. Yogesh Kanna, learned counselappearing for the respondent-State has submitted that from the evidenceof PW-2, 3, 5 and PW-11 it is clearly proved that on 10.10.2003, theGappellant-accused has demanded and accepted Rs.500/- and a mobilephone as bribe to process the application of PW-2 for the extension ofcontract. It is submitted that inspite of cogent and valid evidence onrecord, the trial court has acquitted the appellant, and same is rightlyreversed by the High Court, as such there are no grounds to interfereHwith the same. It is further submitted that in terms of the amended prayer, the appellant has questioned only the judgment dated 22.09.2020 and theorder imposing sentence on 29.09.2020, as such, there is no challenge tothe conviction recorded and sentence imposed for the offence underSection 13(2) and 13(1)(d) of the Act. It is submitted that by noticing theminor contradictions, the trial court has acquitted the appellant, as such,the view taken by the trial court was not a “possible view”, and theappellant is rightly convicted by the High Court and there are no groundsto interfere with the same.

8. Having heard the learned counsels on both sides, we havecarefully perused the impugned judgments and the judgment of acquittalrendered by the Special Court and other oral and documentary evidenceon record.

9. In these appeals, it is to be noticed that PW-2 is the key witness,and was the complainant. He was working as a Supervisor in a VoluntaryService called NACSS which was awarded sanitation work on contractbasis for Ward No.8 of Madurai Municipal Corporation. The sanctioningauthority, who sanctioned to prosecute the appellant was examined asPW-1 and the complainant Thiru D. Gopal was examined as PW-2. It isevident from the deposition of PW-2, 3, 5 and 11 that they reached theoffice of the accused at 05:30 p.m. on 10.10.2003, and at that point oftime the accused was not found in the seat and they have waited forhim, and appellant has come to the office at 05:45 p.m. on his bike andtook his seat. PW-2, in his deposition has stated that when he met theappellant-accused along with other witnesses, Sri Shanmugavel and SriRavi Kumaran appellant has made a demand for Rs.500/- and cell phone.He has stated that in view of such demand he has handed over thepowder coated currency notes and cell phone which were received bythe accused and kept in the left side drawer of the table. The officialwitness Thiru Shanmugavel is examined as PW-3. He also stated in hisdeposition, that when they reached the office of the accused, accusedwas not in the seat. Therefore, they have waited and accused arrived inthe office at 05:45 p.m. PW-2 in his deposition has clearly stated that hemet the accused earlier several times and again when he met on09.10.2003 along with PW-5, the appellant-accused has demanded forRs.500/- and a cell phone as illegal gratification. In the cross-examinationPW-2, has admitted that he never saw the accused earlier and theappellant has made a demand when he met firstly on 09.10.2003. It isalso clearly deposed by PW-2 in the cross-examination that he was illtreated by the accused several times earlier as he belonged to scheduled AB

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Acaste community. From his deposition it is clear that there were ill feelingsbetween the appellant and the PW-2. It is also clear from the evidence,after handing over currency and cell phone, he along with other witnesseswho have accompanied him they came out of the office and signalled tothe inspector. PW-2 also admitted in the cross-examination that he wasnot having any details regarding the purchase of M.O.2 cell phone. It isBalso clear from the evidence that though the trap was at about 05:45p.m., phenolphthalein test was conducted only at 07:00 p.m. There isabsolutely no evidence to show that why such inordinate delay occurredfrom 05:45 p.m. to 07:00 p.m. The office of the Town Assistant HealthOfficer and other officials of the department is also near to the office ofCthe appellant. PW-3 in clear terms, has deposed that only on demand ofanti-corruption officials, the accused had taken and produced the moneyand cell phone, which was in the drawer of the table. The Circle HealthInspector of Madurai Corporation, who was examined as PW-4 hasdeposed in the cross-examination that he had no idea what was going onbefore he reached the office and he has also deposed that he was notDaware about Rs.500/- and cell phone, by whom and when it was kept.He, too has deposed in the cross-examination that only on the directionof the inspector the appellant-accused has taken out the money and thecell phone. The deposition of Mr. Ravikumaran who was examined asPW-5 is also in similar lines. Another key witness on behalf of theEprosecution is PW-11, i.e., the Deputy Superintendent of Police,Bodinayakkanur Sub-Division, who was working as the DeputySuperintendent of Police, Vigilance and Anti-corruption Wing, Maduraiduring the relevant time. He also in his deposition has clearly stated thatthe appellant-accused was tested with the prepared Sodium CarbonateSolution at 19:00 hrs. It is clear from the deposition of all the witnesses,Fi.e., PW-2, 3, 5 and 11 that trap was at about 05:45 p.m. and the hands ofthe appellant were tested only at 07:00 p.m. Further in the cross-examination, PW-11 has clearly stated that when they were monitoringthe place of occurrence for about one hour and during that period manypersons came in and out of the office of the appellant. Added to theGsame, admittedly, after completion of the phenolphthalein test, statementof the appellant was not recorded as required under Rule 47 Clause 1 ofthe Vigilance Manual. Further PW-11 also clearly deposed in the cross-examination that he did not test the hands of the appellant-accusedimmediately after payment and handing over of the money and cell phone.Further PW-4 and PW-11 both have stated in their evidence that, onlyH

when TLO has asked the bribe amount and cell phone, the accusedproduced the same by taking out from the left side drawer of his table. Itis fairly well settled that mere recovery of tainted money, divorced fromthe circumstances under which such money and article is found is notsufficient to convict the accused when the substantive evidence in thecase is not reliable. In view of the material contradictions as noticedabove in the deposition of key witnesses, the benefit of doubt has to goto the accused-appellant.

10. Mainly it is contended by Sri Nagamuthu, learned senior counselappearing for the appellant that the view taken by the trial court is a“possible view”, having regard to evidence on record. It is submittedthat the trial court has recorded cogent and valid reasons in support ofits findings for acquittal. Under Section 378, Cr.PC, no differentiation ismade between an appeal against acquittal and the appeal againstconviction. By considering the long line of earlier cases this Court in thejudgment in the case of Chandrappa & Ors. v. State of Karnataka(2007) 4 SCC 415 has laid down the general principles regarding thepowers of the appellate court while dealing with an appeal against anorder of acquittal. Para 42 of the judgment which is relevant reads asunder :

“42. From the above decisions, in our considered view, the followinggeneral principles regarding powers of the appellate court whiledealing with an appeal against an order of acquittal emerge :

(1) An appellate court has full power to review, reappreciateand reconsider the evidence upon which the order of acquittalis founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and anappellate court on the evidence before it may reach its ownconclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and compellingreasons”, “good and sufficient grounds”, “very strongcircumstances”, “distorted conclusions”, “glaring mistakes”,etc. are not intended to curtail extensive powers of an appellatecourt in an appeal against acquittal. Such phraseologies aremore in the nature of “flourishes of language” to emphasisethe reluctance of an appellate court to interfere with acquittal AB

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than to curtail the power of the court to review the evidenceand to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in caseof acquittal, there is double presumption in favour of theaccused. Firstly, the presumption of innocence is available tohim under the fundamental principle of criminal jurisprudencethat every person shall be presumed to be innocent unless heis proved guilty by a competent court of law. Secondly, theaccused having secured his acquittal, the presumption of hisinnocence is further reinforced, reaffirmed and strengthenedby the trial court.

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(5) If two reasonable conclusions are possible on the basis ofthe evidence on record, the appellate court should not disturbthe finding of acquittal recorded by the trial court.”

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Further in the judgment in the case of Murugesan (supra) reliedon by the learned senior counsel for the appellant, this Court hasconsidered the powers of the High Court in an appeal against acquittalrecorded by the trial court. In the said judgment, it is categorically heldby this Court that only in cases where conclusion recorded by the trialEcourt is not a possible view, then only High Court can interfere andreverse the acquittal to that of conviction. In the said judgment, distinctionfrom that of “possible view” to “erroneous view” or “wrong view” isexplained. In clear terms, this Court has held that if the view taken bythe trial court is a “possible view”, High Court not to reverse the acquittalto that of the conviction. The relevant paragraphs in this regard whereFmeaning and implication of “possible view” distinguishing from “erroneousview” and “wrong view” is discussed are paragraphs 32 to 35 of thejudgment, which read as under :

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“32. In the above facts can it be said that the view taken by thetrial court is not a possible view? If the answer is in the affirmative,the jurisdiction of the High Court to interfere with the acquittal ofthe appellant-accused, on the principles of law referred to earlier,ought not to have been exercised. In other words, the reversal ofthe acquittal could have been made by the High Court only if theconclusions recorded by the learned trial court did not reflect apossible view. It must be emphasised that the inhibition to interfere G

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must be perceived only in a situation where the view taken by thetrial court is not a possible view. The use of the expression “possibleview” is conscious and not without good reasons. The saidexpression is in contradistinction to expressions such as “erroneousview” or “wrong view” which, at first blush, may seem to conveya similar meaning though a fine and subtle difference would beclearly discernible.

33. The expressions “erroneous”, “wrong” and “possible” aredefined in Oxford English Dictionary in the following terms:

“erroneous.— wrong; incorrect.

wrong.—(1) not correct or true, mistaken.

(2) unjust, dishonest, or immoral.

possible.—(1) capable of existing, happening, or being achieved.

(2) that may exist or happen, but that is not certain orprobable.”

34. It will be necessary for us to emphasise that a possible viewdenotes an opinion which can exist or be formed irrespective ofthe correctness or otherwise of such an opinion. A view taken bya court lower in the hierarchical structure may be termed aserroneous or wrong by a superior court upon a mere disagreement.But such a conclusion of the higher court would not take the viewrendered by the subordinate court outside the arena of a possibleview. The correctness or otherwise of any conclusion reached bya court has to be tested on the basis of what the superior judicialauthority perceives to be the correct conclusion. A possible view,on the other hand, denotes a conclusion which can reasonably bearrived at regardless of the fact where it is agreed upon or not bythe higher court. The fundamental distinction between the twosituations have to be kept in mind. So long as the view taken bythe trial court can be reasonably formed, regardless of whetherthe High Court agrees with the same or not, the view taken by thetrial court cannot be interdicted and that of the High Courtsupplanted over and above the view of the trial court.

35. A consideration on the basis on which the learned trial courthad founded its order of acquittal in the present case clearly reflectsa possible view. There may, however, be disagreement on the A

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Acorrectness of the same. But that is not the test. So long as theview taken is not impossible to be arrived at and reasons therefor,relatable to the evidence and materials on record, are disclosedany further scrutiny in exercise of the power under Section 378CrPC was not called for.”

BFurther, in the case of Hakeem Khan & Ors. v. State of MadhyaPradesh (2017) 5 SCC 719 this Court has considered powers of appellatecourt for interference in cases where acquittal is recorded by trial court.In the said judgment it is held that if the “possible view” of the trial courtis not agreeable for the High Court, even then such “possible view”recorded by the trial court cannot be interdicted. It is further held that soClong as the view of trial court can be reasonably formed, regardless ofwhether the High Court agrees with the same or not, verdict of trialcourt cannot be interdicted and the High court cannot supplant over theview of the trial court. Paragraph 9 of the judgment reads as under :

“9. Having heard the learned counsel for the parties, we are ofDthe view that the trial court’s judgment is more than just a possibleview for arriving at the conclusion of acquittal, and that it wouldnot be safe to convict seventeen persons accused of the crime ofmurder i.e. under Section 302 read with Section 149 of the PenalCode. The most important reason of the trial court, as has beenEstated above, was that, given the time of 6.30 p.m. to 7.00 p.m. ofa winter evening, it would be dark, and, therefore, identification ofseventeen persons would be extremely difficult. This reason,coupled with the fact that the only independent witness turnedhostile, and two other eyewitnesses who were independent werenot examined, would certainly create a large hole in the prosecutionFstory. Apart from this, the very fact that there were injuries onthree of the accused party, two of them being deep injuries in theskull, would lead to the conclusion that nothing was premeditatedand there was, in all probability, a scuffle that led to injuries onboth sides. While the learned counsel for the respondent may beGright in stating that the trial court went overboard in stating thatthe complainant party was the aggressor, but the trial court’sultimate conclusion leading to an acquittal is certainly a possibleview on the facts of this case. This is coupled with the fact thatthe presence of the kingpin Sarpanch is itself doubtful in view of D

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the fact that he attended the Court at some distance and arrivedby bus after the incident took place.”

11. By applying the above said principles and the evidence onrecord in the case on hand, we are of the considered view that havingregard to material contradictions which we have already noticed aboveand also as referred to in the trial court judgment, it can be said thatacquittal is a “possible view”. By applying the ratio as laid down by thisCourt in the judgments which are stated supra, even assuming anotherview is possible, same is no ground to interfere with the judgment ofacquittal and to convict the appellant for the offence alleged. From theevidence, it is clear that when the Inspecting Officer and other witnesseswho are examined on behalf of the prosecution, went to the office of theappellant-accused, appellant was not there in the office and office wasopen 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 currencyand cell phone were taken out from the drawer of the table by the appellantat their instance. There is also no reason, when the tainted notes and thecell phone were given to the appellant at 05:45 p.m. no recordings weremade and the appellant was not tested by PW-11 till 07:00 p.m. Thereare material contradictions in the deposition of PW-2 and it is clear fromhis deposition that he has developed animosity against the appellant andhe himself has stated in the cross-examination that he was insulted earlieras he belonged to scheduled caste. Further there is no answer fromPW-11 to conduct the phenolphthalein test after about an hour fromhanding over tainted notes and cell phone. The trial court has disbelievedPW-2, 3 and 5 by recording several valid and cogent reasons, but theHigh Court, without appreciating evidence in proper perspective, hasreversed the view taken by the trial court. Further, the High Court alsohas not recorded any finding whether the view taken by the trial court isa “possible view” or not, having regard to the evidence on record. Thoughthe High Court was of the view that PW-2, 3 and 5 can be believed,unless it is held that the view taken by the trial court disbelieving thewitnesses is not a possible view, the High Court ought not have interferedwith the acquittal recorded by the trial court. In view of the materialcontradictions, the prosecution has not proved the case beyond reasonabledoubt to convict the appellant.

12. It is equally well settled that mere recovery by itself cannotprove the charge of the prosecution against the accused. Reference can AB

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78SUPREME COURT REPORTS

Abe made to the judgments of this Court in the case of C.M. GirishBabu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 andin the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC55. In the aforesaid judgments of this Court while considering the caseunder Sections 7, 13(1)(d)(i) and (ii) of the Prevention of CorruptionAct, 1988 it is reiterated that to prove the charge, it has to be provedBbeyond reasonable doubt that accused voluntarily accepted moneyknowing it to be bribe. Absence of proof of demand for illegal gratificationand mere possession or recovery of currency notes is not sufficient toconstitute such offence. In the said judgments it is also held that eventhe presumption under Section 20 of the Act can be drawn only afterCdemand for and acceptance of illegal gratification is proved. It is alsofairly well settled that initial presumption of innocence in the criminaljurisprudence gets doubled by acquittal recorded by the trial court. Therelevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj(supra) read as under :

D“7. Insofar as the offence under Section 7 is concerned, it is asettled position in law that demand of illegal gratification is sinequa non to constitute the said offence and mere recovery ofcurrency notes cannot constitute the offence under Section 7 unlessit is proved beyond all reasonable doubt that the accused voluntarilyaccepted the money knowing it to be a bribe. The above positionEhas been succinctly laid down in several judgments of this Court.By way of illustration reference may be made to the decisionin C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779: (2009) 2 SCC (Cri) 1] .F8. In the present case, the complainant did not support theprosecution case insofar as demand by the accused is concerned.The prosecution has not examined any other witness, present atthe time when the money was allegedly handed over to the accusedby the complainant, to prove that the same was pursuant to anyGdemand made by the accused. When the complainant himself haddisowned what he had stated in the initial complaint (Ext. P-11)before LW 9, and there is no other evidence to prove that theaccused had made any demand, the evidence of PW 1 and thecontents of Ext. P-11 cannot be relied upon to come to theconclusion that the above material furnishes proof of the demandH

allegedly made by the accused. We are, therefore, inclined tohold that the learned trial court as well as the High Court was notcorrect in holding the demand alleged to be made by the accusedas proved. The only other material available is the recovery of thetainted currency notes from the possession of the accused. Infact such possession is admitted by the accused himself. Merepossession and recovery of the currency notes from the accusedwithout proof of demand will not bring home the offence underSection 7. The above also will be conclusive insofar as the offenceunder Sections 13(1)(d)(i) and (ii) is concerned as in the absenceof any proof of demand for illegal gratification, the use of corruptor illegal means or abuse of position as a public servant to obtainany valuable thing or pecuniary advantage cannot be held to beestablished.

9. Insofar as the presumption permissible to be drawn underSection 20 of the Act is concerned, such presumption can only bein respect of the offence under Section 7 and not the offencesunder Sections 13(1)(d)(i) and (ii) of the Act. In any event, it isonly on proof of acceptance of illegal gratification that presumptioncan be drawn under Section 20 of the Act that such gratificationwas received for doing or forbearing to do any official act. Proofof acceptance of illegal gratification can follow only if there isproof of demand. As the same is lacking in the present case theprimary facts on the basis of which the legal presumption underSection 20 can be drawn are wholly absent.”

The above said view taken by this Court, fully supports the caseof the appellant. In view of the contradictions noticed by us above in thedepositions of key witnesses examined on behalf of the prosecution, weare of the view that the demand for and acceptance of bribe amount andcell phone by the appellant, is not proved beyond reasonable doubt. Havingregard to such evidence on record the acquittal recorded by the trialcourt is a “possible view” as such the judgment of the High Court is fit tobe set aside. Before recording conviction under the provisions ofPrevention of Corruption Act, courts have to take utmost care in scanningthe evidence. Once conviction is recorded under provisions of Preventionof Corruption Act, it casts a social stigma on the person in the societyapart from serious consequences on the service rendered. At the sametime it is also to be noted that whether the view taken by the trial court AB

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Ais a possible view or not, there cannot be any definite proposition andeach case has to be judged on its own merits, having regard to evidenceon record.

13. Learned counsel for the appellant has also submitted that thejudgment and conviction for the offence under Section 7 of the ActBdated 22.09.2020 and 29.09.2020 is contrary to Section 362 of Cr.PC.As we are in agreement with the case of the appellant on merits it is notnecessary to decide such issue. The learned counsel for the State hassubmitted that as per the amended copy of the memo, the appellant haschallenged only judgment/order dated 22.09.2020 and 29.09.2020 andthere is no challenge to the earlier judgment of conviction dated 28.08.2020Cand the order of sentence dated 15.09.2020, but at the same time it is tobe noticed when the judgment is subsequently rendered on 22.09.2020for the offence under Section 7 of the Act and further sentence is alsoimposed vide order dated 29.09.2020, the appellant had filed interlocutoryapplication seeking amendment and the same was allowed by this Court.DIn that view of the matter, merely because in the amended memo theappellant has not mentioned about the judgment dated 28.08.2020 andthe order dated 15.09.2020, same is no ground to reject the appeals onsuch technicality. Further the judgments relied by the learned counselfor the State also are of no assistance in support of his case to sustainthe conviction recorded by the High Court.E

14. For the reasons stated supra, these appeals are allowed andthe impugned judgments of conviction dated 28.08.2020 and 22.09.2020and orders imposing sentence dated 15.09.2020 and 29.09.2020 are herebyset aside. The appellant be released forthwith from the custody, unlessotherwise his custody is required in connection with any other case.

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Divya Pandey

Appeals allowed

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