B. NOHAversusSTATE OF KERALA AND ANR.

                                                                                     ..
A                                    B. NOHA
                                          v.
                         STATE OF KERALA AND ANR.

                               NOVEMBER 6, 2006

B         [ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.]


          Prevention of Corruption Act, 1988; Ss. 7, l 3(J)(d) and 13(2):
          Demanding and accepting of illegal gratification by a public servant-
C   Testimony of interested witnesses-Evidentiary value-Held: Evidence on
    record clearly established demand and acceptance of illegal gratification-
    Since it is proved that acceptance of money was conscious and voluntary, no
    burden cast on prosecution to prove demand/motive by direct evidence-
    There was no basis to believe that the prosecution witness intended to falsely
    implicate the accused-Hence, evidence of such witness does not suffer from
D   any infirmity-However, considering the nature ofthe accusation, it would be
    appropriate to reduce the sentence to the minimum prescribed under the
    Statute-Orderea accordingly-Sentencing-Criminal trial-Evidence Act,
    1872-Testimony of witnesses-Evidentiary values,
          The appellant working as Health Inspector Grade-II, at
E   Thiruvananthapuram City Corporation allegedly accepted illegal
    gratification from PWI. PW-1 went to the office of Deputy Superintendent
    of Police and gave first information statement on the basis of which Crime
    was registered. The Trial Court found the appellant guilty of the offences
    punishable under Sections 7 and 13(1)(d) read with section 13(2) of the
F   Prevention of Corruption Act, convicted him thereunder and sentenced
    him to undergo rigorous imprisonm~nt for a period of three years and to
    pay fine for the offence under Section 7 of the Act. He was further
    sentenced to undergo rigorous imprisonment for a period of three years
    for the offence under section 13(1)(d) read ·vith section 13(2) of the Act.
    The High Court confirmed the conviction and sentence. Hence the present
G   appeal.
         Appellant contended that he had clearly established the
    improbabilities in the evidence of Prosecution Witnesses, under the
    circumstan~es, conviction was not warranted; and that considering the
    nature of the accusations the sentences imposed are harsh.
H                                      368
                      B. NOHA v. STATE OF KI;:RALA [PASAYA T, J.]                 369
            Dismissing the appeal, but modifying the sentences, the Court                A
            HELD: 1.1. Though the evidence of PW-1 was levelled as the

...   evidence of interested witness, there is no substance in it. There was no
      basis for PW-1 to falsely implicate the accused. On the other hand, the
      evidence on record clearly shows as to why the illegal gratification was
      demand(~d and accepted by the appellant. The evidence of PW-1, therefore,          B
      does not suffer from any infirmity to warrant interference. [371-E-F}
           1.2. When it is proved that there was voluntary and conscious
      acceptance of the money, there is no further burden cast on the prosecution
      to prove by direct evidence, the demand or motive. It has only to be
      deduced from the facts and circumstances obtained in the particular case.          C
                                                               [371-G-H; 372-A}
          Madhukar Bhaskarrao Joshi v. State ofMaharashtra, [2000) 8 SCC 571;
      M Narsinga Rao v. State of A.P., [2001} 1 SCC 691 and State of A.P. v.
      Kommaraju Gopala Krishna Murthy, [2000) 9 SCC 752, relied on.
            1.3. It is to be noted that the minimum sentence for offence relatable       D
      to Section 7 of the Act is six months while that relatable to Section 13(l)(d)
      of the Act is one year. Considering the nature of the accusations, it would
      be appropriate to reduce the sentence to the minimum prescribed under
      the statute. It shall be six months and one year respectively, to run
      concurrently. [372-F-G]
                                                                                         E
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1122
      of 2006.

           From the Judgment and Final Order dated 23.9.2005 of the High Court
      of Kerala at Emakulam in Criminal Appeal No. 319 of 2002.

            Roy Abraham, Seema Jain and Himinder Lal for the Appellant.                  F
            G. Prakash, Beena Prakash and K.D. Dileep Kumar for the Respondents.
            The Judgment of the Court was delivered by

            ARIJIT PASAYAT, J. Leave granted.
                                                                                         G
            Appellant calls in question legality of the judgment rendered by a learned
      Single Judge of the Kerala High Court upholding the conviction of the
      appellant for offences punishable under Section 7 and 13(1)(d) read with
      Section 13(2) of the Prevention of Corruption Act, 1988 (in short the 'Act')
           The Enquiry Commissioner and the Special Judge, Thiruvananthapuram            H
    370                     SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A found the appellant guilty of the offences punishable as aforesaid, convicted
    him thereunder and sentenced him to undergo rigorous imprisonment for a
    period of 3 years and to pay a fine of Rs.20,000/- with default stipulation in
    respect of the offence punishable under Section 7 of the Act. Further, the
    appellant was sentenced to undergo rigorous imprisonment for a period of 3         -
    years for the offence punishable under Section 13(1)(d) read with Section
B   13(2) of the Act. The substantive sentences were directed to run concurrently.

          Background facts in a nutshell are as follows:

          The prosecution case against the appellant was that while the appellant
    was working as Health Inspector Grade-II, at Thirnmala Circle,
C   Thiruvananthapuram City Corporation, he demanded and accepted an amount
    of Rs.JOO/- from PW-1 on 27.11.1997 and a further amount of Rs.100/- on
    6.1.1998 as illegal gratification and thereby committed the above offences.
    Earlier the officials of the Municipal Corporation including the accused
    removed the push cart belonging to PW-1 along with the articles to the office
D   of the Corr'Jration and for release of the articles and for sending the report
    to the Corporation, the accused demanded and accepted a sum of Rs.200/-
    from PW-1. For the release of the push cart, the accused demanded a further
    sum of Rs.200/- from PW-1 on 29.1.1998 besides the fine imposed by the
    Health Officer and PW-1 then went to the office of Deputy Superintendent
    of Police, VACB Unit PW-9, and gave Ext.Pl first information statement on
E   the basis of which Crime No.VC.2/98 was registered and a trap was arranged.
    Before the Trial Court, the prosecution examin<.d PWs.1 to 9 and produced,'.·
    Exts.Pl to P13 and MOS.I to 6. DWI was examined on the side of the
    defence, to prove innocence of accused, as pleaded by him. On Closure of the
    prosecution evidence, the accused was questioned under Section 313 of the
F   Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') and he denied the
    charge levelled against him. He also filed a del:ailed statement in which he
    stated that he never received any amoum from PW-I and that PW-1 came to
    his office and forcibly put the •noney into his pocket. On the basis of the
    evidence adduced by the prosecution, the Trial Court found the appellant
    guilty of the offences punishable under Sections 7 and 13(l)(d) read with
G   section 13(2) of the Act, convicted him thereunder and sentenced him to
    undergo rigorous imprisonment for a period of three years and to pay a fine
    of Rs.20,000/- for the offence under Section 7 of the Act. In default of
    payment of fine, he was .sentenced to undergo rigorous imprisonment for a
    further period of one year. He was further sentenced to undergo rigorous
    imprisonment for a pe.'iod of three years for the offence under section 13(l)(d)
H
...                   B. NOHAv. STATEOFKERALA [PASAYAT,J.]                       371
      read with section I 3(2) of the Act. The substantive sentences were ordered       A
      to run concurrently.

            Trial Court mainly placed reliance on the evidence of PWs. I and 2 to
      hold the accused guilty. It is to be noted that PW-3 did not support the
      prosecution version. The Trial Court found that the evidence of PWs 1 and
      2 is credible and cogent and, therefore, the prosecution has brought out the      B
      accusations made against the appellant. Before the High Court the trial Court's
      judgment was primarily attacked on the ground that the evidence of PWs I
      and 2 should not have been accepted as they were interested witnesses, more
      particularly when PW-3 did not support the prosecution version. The High
      Court did not find any substance in the submissions and as noted above            C
      confirmed the conviction and sentence.

             In support of the appeal, learned counsel for the appellant submitted
      that the accused had clearly established the improbabilities in the evidence of
      PWs I and 2 and, therefore, it was submitted that the trial Court and the High
      Court ought not to have convicted the appellant. Additionally, it was submitted D
      that considering the nature of the accusations the sentences imposed are
      harsh.

           Learned counsel for the respondents on the other hand supported the
      judgment of the trial Court as confirmed by the High Court. Both the trial
      Court and the High Court have elaborately dealt with the evidence of PWs          E
      1 and 2 to hold that the accused was guilty.

            Though the evidence of PW-I was levelled as the evidence of interested
      witness, there is no substance in it. There was no basis for PW- I to falsely
      implicate the accused. On the other hand, the evidence on record clearly
      shows as to why the illegal gratification was demanded and accepted by the        F
      appellant. The evidence of PW-I, therefore, does not suffer from any infirmity
      to warrant interference.

           Added to that is the evidence of PW-2 which is also clear, credible and
      cogent.

            The evidence shows that when PW-I told the accused that he had              G
      brought the money as directed by the accused, the accused asked PW-I to
      take cut and give the same to him. When it is proved that there was voluntary
      and conscious acceptance of the money, there is no further burden cast on the
      prosecution to prove by direct evidence, the demand or motive. It has on\y
      to be deduced from the facts and circumstances obtained in the particular         H
    372                      SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A case. It was held by this Court in Madhukar Bhaskarrao Joshi v. State of
    Maharashtra, [2000] 8 SCC 571 as follows:

                 "The premise to be established on the facts for drawing the
             presumption is that there was payment or acceptance of gratification.
             Once the said premise is established the inference to be drawn is that
B            the said gratification was accepted 'as motive or reward' for doing or
             forbearing to do any official act. So the word 'gratification' need not
             be stretched to mean reward because reward is the outcome of the
             presumption which the court has to draw on the factual premises that
             there•was payment of gratification. This will again be fortified by
             looking at the collocation of two expressions adjacent to each other
c            like 'gratification or any valuable thing'. Ifacceptance of any valuable
             thing can help to draw the presumption that it was accepted as motive
             or reward for doing or forbearing to do an official act, the word
             'gratification' must be treated in the context to mean any payment for
             giving satisfaction to the public servant who received it."
D         This decision was followed by this Court in M Narsinga Rao v. State
    of A.P., [2001] 1 SCC 69L There is no case of the accused that the said
    amount was received by him as the amount which he was legally entitled to
    receive or collect from PW-1. It was held in the decision in State of A.P. v.
    Kommaraju Gopala Krishna Murthy, [2000] 9 SCC 752, that when amount
E   is found to have been passed to the public servant the burden is .on public
    servant to establish that it was not by way of illegal gratification. That burden .
    was not discharged by the accused.

          Coming to the question of sentence, it is to be noted that the minimum
    sentence for offence relatable to Section 7 is six months while that relatable
F   to Section 13(l)(d) is one year. Considering ·the nature of the accusations, it
    would be appropriate to reduce the sentence to the minimum prescribed
    under the statute. In other words it shall be six months and one year
    respectively to run concurrently. The amount of fine is also reduced to
    Rs.l 0,000/- with default stipulation of six months rigorous imprisonment.

G         The appeal is dismissed except to the extent of modification of sentence
    as noted above.

    S.K.S.                                                        Appeal dismissed.