N. VIJAYAKUMARversusSTATE OF TAMIL NADU

                          [2021] 2 S.C.R. 63                             63


                        N. VIJAYAKUMAR                                   A
                                  v.
                     STATE OF TAMIL NADU
               (Criminal Appeal Nos. 100-101 of 2021)
                       FEBRUARY 03, 2021                                 B
         [ASHOK BHUSHAN, R. SUBHASH REDDY
                 AND 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 Madurai
                                                                         C
Municipal Corporation – Case of prosecution that he demanded
Rs.500/- and a cell phone as illegal gratification from PW-2, to
send his report for extension of work, working as Supervisor in an
Organisation which was given sanitation work on contract basis in
the aforesaid ward – Trial court acquitted the appellant – Acquittal
reversed by High Court – On appeal, held: There are material             D
contradictions in the deposition of key witnesses – Demand for and
acceptance of bribe amount and cell phone by the appellant not
proved beyond reasonable doubt – Mere recovery of tainted money,
divorced from the circumstances under which such money and article
is found is not sufficient to convict the accused when the substantive
                                                                         E
evidence in the case is not reliable – Acquittal recorded by the trial
court 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 sanctioning               F
authority, who sanctioned to prosecute the appellant was
examined 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 they
reached 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 seat
and they have waited for him, and appellant has come to the office       G
at 05:45 p.m. on his bike and took his seat. PW-2, in his deposition
has stated that when he met the appellant-accused along with
other witnesses, appellant has made a demand for Rs.500/- and

                                                                         H
                                 63
64            SUPREME COURT REPORTS                      [2021] 2 S.C.R.


A    cell phone. He has stated that in view of such demand he has
     handed over the powder coated currency notes and cell phone
     which were received by the accused and kept in the left side
     drawer of the table. The official witness is examined as PW-3. He
     also stated in his deposition, that when they reached the office of
     the accused, accused was not in the seat. Therefore, they have
B
     waited and accused arrived in the office at 05:45 p.m. PW-2 in his
     deposition has clearly stated that he met the accused earlier
     several times and again when he met on 09.10.2003 along with
     PW-5, the appellant-accused has demanded for Rs.500/- and a
     cell phone as illegal gratification. In the cross-examination PW-
C    2, has admitted that he never saw the accused earlier and the
     appellant has made a demand when he met firstly on 09.10.2003.
     It is also clearly deposed by PW-2 in the cross-examination that
     he was ill treated by the accused several times earlier as he
     belonged to scheduled caste community. From his deposition it
     is clear that there were ill feelings between the appellant and the
D
     PW-2. It is also clear from the evidence, after handing over
     currency and cell phone, he along with other witnesses who have
     accompanied him they came out of the office and signalled to the
     inspector. PW-2 also admitted in the cross-examination that he
     was not having any details regarding the purchase of M.O.2 cell
E    phone. It is also clear from the evidence that though the trap was
     at about 05:45 p.m., phenolphthalein test was conducted only at
     07:00 p.m. There is absolutely no evidence to show that why
     such inordinate delay occurred from 05:45 p.m. to 07:00 p.m.
     The office of the Town Assistant Health Officer and other officials
     of the department is also near to the office of the appellant. PW-
F
     3 in clear terms, has deposed that only on demand of anti-
     corruption officials, the accused had taken and produced the
     money and cell phone, which was in the drawer of the table. The
     Circle Health Inspector of Madurai Corporation, who was
     examined as PW-4 has deposed in the cross-examination that he
G    had no idea what was going on before he reached the office and
     he has also deposed that he was not aware 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 direction of the inspector


H
        N. VIJAYAKUMAR v. STATE OF TAMIL NADU                           65


the appellant-accused has taken out the money and the cell phone.       A
The deposition of PW-5 is also in similar lines. Another key
witness on behalf of the prosecution is PW-11, i.e., the Deputy
Superintendent of Police, Bodinayakkanur Sub-Division, who was
working as the Deputy Superintendent of Police, Vigilance and
Anti-corruption Wing, Madurai during the relevant time. He also
                                                                        B
in his deposition has clearly stated that the appellant-accused
was tested with the prepared Sodium Carbonate Solution at 19:00
hrs. 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 of
the appellant were tested only at 07:00 p.m. Further in the cross-
examination, PW-11 has clearly stated that when they were               C
monitoring the place of occurrence for about one hour and during
that period many persons came in and out of the office of the
appellant. Added to the same, admittedly, after completion of the
phenolphthalein test, statement of the appellant was not recorded
as required under Rule 47 Clause 1 of the Vigilance Manual.
                                                                        D
Further PW-11 also clearly deposed in the cross-examination that
he did not test the hands of the appellant-accused immediately
after 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, the
accused produced the same by taking out from the left side drawer       E
of his table. Mere recovery of tainted money, divorced from the
circumstances under which such money and article is found is
not sufficient to convict the accused when the substantive
evidence in the case is not reliable. In view of the material
contradictions as noticed in the deposition of key witnesses, the
                                                                        F
benefit of doubt has to go to the accused-appellant. Having regard
to material contradictions and also as referred to in the trial court
judgment, it can be said that acquittal is a “possible view”. Even
assuming another view is possible, same is no ground to interfere
with the judgment of acquittal and to convict the appellant for the
offence alleged. From the evidence, it is clear that when the           G
Inspecting Officer and other witnesses who are examined on
behalf of the prosecution, went to the office of the appellant-
accused, appellant was not there in the office and office was open


                                                                        H
66            SUPREME COURT REPORTS                      [2021] 2 S.C.R.


A    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
     currency and cell phone were taken out from the drawer of the
     table by the appellant at their instance. There is also no reason,
     when the tainted notes and the cell phone were given to the
     appellant at 05:45 p.m. no recordings were made and the appellant
B
     was not tested by PW-11 till 07:00 p.m. There are material
     contradictions in the deposition of PW-2 and it is clear from his
     deposition that he has developed animosity against the appellant
     and he himself has stated in the cross-examination that he was
     insulted earlier as he belonged to scheduled caste. Further there
C    is no answer from PW-11 to conduct the phenolphthalein test
     after about an hour from handing over tainted notes and cell
     phone. The trial court has disbelieved PW-2, 3 and 5 by recording
     several valid and cogent reasons, but the High Court, without
     appreciating evidence in proper perspective, has reversed the
     view taken by the trial court. Further, the High Court also has
D
     not recorded any finding whether the view taken by the trial court
     is a “possible view” or not, having regard to the evidence on
     record. Though the 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 the witnesses is not a possible view, the
E    High Court ought not have interfered with the acquittal recorded
     by the trial court. In view of the material contradictions, the
     prosecution has not proved the case beyond reasonable doubt to
     convict the appellant. [Paras 9, 11][71-C-H; 72-A-H; 73-A-B;
     77-A-G]
F           1.2 Mere recovery by itself cannot prove the charge of the
     prosecution against the accused. To prove the charge, it has to
     be proved beyond reasonable doubt that accused voluntarily
     accepted money knowing it to be bribe. Absence of proof of
     demand for illegal gratification and mere possession or recovery
     of currency notes is not sufficient to constitute such offence. Even
G    the presumption under Section 20 of the Act can be drawn only
     after demand for and acceptance of illegal gratification is proved.
     Initial presumption of innocence in the criminal jurisprudence
     gets doubled by acquittal recorded by the trial court. In view of
     the contradictions noticed in the depositions of key witnesses
H
        N. VIJAYAKUMAR v. STATE OF TAMIL NADU                          67


examined on behalf of the prosecution, the demand for and              A
acceptance of bribe amount and cell phone by the appellant, is
not proved beyond reasonable doubt. Having regard to such
evidence on record the acquittal recorded by the trial court is a
“possible view” as such the judgment of the High Court is fit to
be set aside. Before recording conviction under the provisions
                                                                       B
of Prevention of Corruption Act, courts have to take utmost care
in scanning the evidence. Once conviction is recorded under
provisions of Prevention of Corruption Act, it casts a social stigma
on the person in the society apart from serious consequences on
the service rendered. At the same time it is also to be noted that
whether the view taken by the trial court is a possible view or        C
not, there cannot be any definite proposition and each case has
to be judged on its own merits, having regard to evidence on
record. The impugned judgments of conviction dated 28.08.2020
and 22.09.2020 and orders imposing sentence dated 15.09.2020
and 29.09.2020 are set aside. [Paras 12, 14][77-G-H; 78-A-B;
                                                                       D
79-E-G; 80-D]
      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 Madhya
      Pradesh (2017) 5 SCC 719 : [2017] 2 SCR 735; C.M.                E
      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] 4
      SCR 554 – relied on.
      Anil Rai etc. v. State of Bihar (2001) 7 SCC 318 : [2001]        F
      1 Suppl. SCR 298 – referred to.
                       Case Law Reference
[2012] 13 SCR 1                relied on                Para 6
[2001] 1 Suppl. SCR 298        referred to              Para 6         G
[2007] 2 SCR 630               relied on                Para 10
[2017] 2 SCR 735               relied on                Para 10
[2009] 2 SCR 1021              relied on                Para 12
                                                                       H
68             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A    [2014] 4 SCR 554                   relied on                  Para 12
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     Nos. 100-101 of 2021
            From the Judgment and Order dated 22.09.2020 and 29.09.2020
     of the High Court of Judicature at Madras at Madurai in Crl. A.(MD)
B    No. 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.

C          The 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 on
     the file of Special Court for Trial of Prevention of Corruption Act Cases,
D
     Madurai, has filed these appeals, aggrieved by the conviction recorded
     vide judgment dated 28.08.2020 and 22.09.2020 and sentence imposed
     vide order dated 15.09.2020 and 29.09.2020 by the Madurai Bench of
     the Madras High Court under Sections 7 and 13(2) read with 13(1)(d) of
     the Prevention of Corruption Act, 1988 (for short, ‘the Act’).
E            3. The appellant-accused was working as Sanitary Inspector in
     8th Ward of Madurai Municipal Corporation. He was chargesheeted for
     the offence under Sections 7, 13(2) read with 13(1)(d) of the Act alleging
     that he demanded an amount of Rs.500/- and a cell phone as illegal
     gratification from PW-2 (Thiru. D. Gopal), who was working as Supervisor
F    in a Voluntary Service Organisation called Neat And Clean Service
     Squad (NACSS), which was given sanitation work on contract basis in
     Ward No.8 of Madurai Corporation. It was the case of the prosecution
     that to send his report for extension of work beyond the period of March
     2003, when PW-2 has approached him on 09th and 10th of October 2003,
     such a demand was made, as such appellant being a public servant
G    demanded and accepted illegal gratification on 10th of October 2003 as
     a motive or reward to do an official act in exercise of his official function
     and thereby he has committed misconduct which is punishable under
     Sections 7, 13(2) and 13(1)(d) of the Act. On denial of charge, charges
     were framed against him for the aforesaid offences and he has pleaded
H
         N. VIJAYAKUMAR v. STATE OF TAMIL NADU                                69
                  [R. SUBHASH REDDY, J.]

not guilty. Therefore, he was tried before the Special Court for the          A
aforesaid alleged offences. During the trial, on prosecution side, 12
witnesses were examined, i.e. PW-1 to PW-12; and 17 exhibits – Ex.P1
to P.17 and M.O.1 to M.O.4. have been marked. No defence witness
was examined and Ex.D1 to D3 were marked during the cross-
examination of PW-6.
                                                                              B
       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 preferred
Criminal Appeal (MD) No.6 of 2015 before the Madurai Bench of Madras
High Court. The Madurai Bench of Madras High Court, by impugned
judgment and orders, has reversed the acquittal, and convicted the            C
appellant for the offences under Section 7, 13(2) and 13(1)(d) of the Act
and imposed the sentence of rigorous imprisonment for one year and
imposed the penalty of Rs.5000/-. Aggrieved by the conviction recorded
and sentence imposed by the impugned judgments and orders passed by
the High Court, accused is before this Court in these appeals.                D
      5. We have heard Sri S. Nagamuthu, learned senior counsel
appearing for the appellant and learned counsel for the State of Tamil
Nadu.
        6. Sri Nagamuthu, learned senior counsel appearing for the
appellant, by taking us to the evidence and other material on record, has     E
submitted that, the well reasoned judgment of the trial court, which was
rendered by appreciating oral and documentary evidence on record, is
reversed 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, mainly           F
it is contended that the finding recorded by the trial court is a “possible
view” having regard to evidence on record and even if other view is
possible, same is no ground to reverse the acquittal and to convict the
accused. By referring to findings recorded by the trial court, it is
strenuously argued that the view taken by the trial court is a “possible
view” and without recording any contra finding to the same, the High          G
Court has convicted the appellant. It is submitted that there is no finding
recorded by the High Court anywhere in the judgment that the view
taken by the trial court is not a “possible view”. It is submitted that in
view of the material contradictions, the trial court has disbelieved the
testimony of PW-2, 3 and 5 by recording valid reasons, but the High           H
70             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A    Court, without assigning any reasons, has believed these witnesses. It is
     submitted that even if the 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 these witnesses is not a “possible view”, High Court ought
     not have interfered with the judgment of acquittal recorded by the trial
     court. It is also submitted that having regard to reasons recorded, findings
B
     recorded by the trial court cannot be said to be either erroneous or
     unreasonable. By further referring to the oral evidence on record, it is
     submitted that there are material contradictions in the testimony of crucial
     witnesses, and without noticing the same the High Court has convicted
     the appellant and imposed the sentence. Further it is submitted that initially
C    by judgment dated 28.08.2020, High Court has recorded the conviction
     of the appellant, only for the offence under Section 13(2) read with
     13(1)(d) of the Act and imposed the sentence of one year imprisonment
     and to pay a fine of Rs.5000/- vide order dated 15.09.2020. However,
     thereafter again the appeal was listed under the caption “For being
     mentioned” on its own by the Court on 22.09.2020 and convicted the
D
     appellant for the offence under Section 7 of the Act also and by further
     order dated 29.09.2020 imposed the sentence of one year rigorous
     imprisonment for the offence under Section 7 of the Act. It is submitted
     that the said judgment of conviction rendered on 22.09.2020 and the
     order of sentence dated 29.09.2020 is in violation of Section 362 of the
E    Code of Criminal Procedure. It is submitted that once the judgment is
     rendered and conviction is recorded it was not open either to list the
     matter for being mentioned or to convict the appellant for the offence
     under Section 7 of the Act also. Lastly it is submitted that the judgment
     in this case was reserved on 17.12.2019 and the same was pronounced
     after a period of more than six months, i.e., on 28.08.2020 as such same
F
     is in violation of guidelines contained in the judgment of this Court in the
     case of Anil Rai etc. v. State of Bihar (2001) 7 SCC 318.
            7. On the other hand, Sri M. Yogesh Kanna, learned counsel
     appearing for the respondent-State has submitted that from the evidence
     of PW-2, 3, 5 and PW-11 it is clearly proved that on 10.10.2003, the
G    appellant-accused has demanded and accepted Rs.500/- and a mobile
     phone as bribe to process the application of PW-2 for the extension of
     contract. It is submitted that inspite of cogent and valid evidence on
     record, the trial court has acquitted the appellant, and same is rightly
     reversed by the High Court, as such there are no grounds to interfere
H    with the same. It is further submitted that in terms of the amended prayer,
         N. VIJAYAKUMAR v. STATE OF TAMIL NADU                                  71
                  [R. SUBHASH REDDY, J.]

the appellant has questioned only the judgment dated 22.09.2020 and the         A
order imposing sentence on 29.09.2020, as such, there is no challenge to
the conviction recorded and sentence imposed for the offence under
Section 13(2) and 13(1)(d) of the Act. It is submitted that by noticing the
minor contradictions, the trial court has acquitted the appellant, as such,
the view taken by the trial court was not a “possible view”, and the
                                                                                B
appellant is rightly convicted by the High Court and there are no grounds
to interfere with the same.
      8. Having heard the learned counsels on both sides, we have
carefully perused the impugned judgments and the judgment of acquittal
rendered by the Special Court and other oral and documentary evidence
on record.                                                                      C

       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 Voluntary
Service called NACSS which was awarded sanitation work on contract
basis for Ward No.8 of Madurai Municipal Corporation. The sanctioning
authority, who sanctioned to prosecute the appellant was examined as            D
PW-1 and the complainant Thiru D. Gopal was examined as PW-2. It is
evident from the deposition of PW-2, 3, 5 and 11 that they reached 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 seat and they have waited for
him, and appellant has come to the office at 05:45 p.m. on his bike and         E
took his seat. PW-2, in his deposition has stated that when he met the
appellant-accused along with other witnesses, Sri Shanmugavel and Sri
Ravi 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 the
powder coated currency notes and cell phone which were received by
the accused and kept in the left side drawer of the table. The official         F
witness Thiru Shanmugavel is examined as PW-3. He also stated in his
deposition, that when they reached the office of the accused, accused
was not in the seat. Therefore, they have waited and accused arrived in
the office at 05:45 p.m. PW-2 in his deposition has clearly stated that he
met the accused earlier several times and again when he met on                  G
09.10.2003 along with PW-5, the appellant-accused has demanded for
Rs.500/- and a cell phone as illegal gratification. In the cross-examination
PW-2, has admitted that he never saw the accused earlier and the
appellant has made a demand when he met firstly on 09.10.2003. It is
also clearly deposed by PW-2 in the cross-examination that he was ill
treated by the accused several times earlier as he belonged to scheduled        H
72             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A    caste community. From his deposition it is clear that there were ill feelings
     between the appellant and the PW-2. It is also clear from the evidence,
     after handing over currency and cell phone, he along with other witnesses
     who have accompanied him they came out of the office and signalled to
     the inspector. PW-2 also admitted in the cross-examination that he was
     not having any details regarding the purchase of M.O.2 cell phone. It is
B
     also clear from the evidence that though the trap was at about 05:45
     p.m., phenolphthalein test was conducted only at 07:00 p.m. There is
     absolutely no evidence to show that why such inordinate delay occurred
     from 05:45 p.m. to 07:00 p.m. The office of the Town Assistant Health
     Officer and other officials of the department is also near to the office of
C    the appellant. PW-3 in clear terms, has deposed that only on demand of
     anti-corruption officials, the accused had taken and produced the money
     and cell phone, which was in the drawer of the table. The Circle Health
     Inspector of Madurai Corporation, who was examined as PW-4 has
     deposed in the cross-examination that he had no idea what was going on
     before he reached the office and he has also deposed that he was not
D
     aware 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 direction
     of the inspector the appellant-accused has taken out the money and the
     cell phone. The deposition of Mr. Ravikumaran who was examined as
     PW-5 is also in similar lines. Another key witness on behalf of the
E    prosecution is PW-11, i.e., the Deputy Superintendent of Police,
     Bodinayakkanur Sub-Division, who was working as the Deputy
     Superintendent of Police, Vigilance and Anti-corruption Wing, Madurai
     during the relevant time. He also in his deposition has clearly stated that
     the appellant-accused was tested with the prepared Sodium Carbonate
     Solution at 19:00 hrs. It is clear from the deposition of all the witnesses,
F
     i.e., PW-2, 3, 5 and 11 that trap was at about 05:45 p.m. and the hands of
     the appellant were tested only at 07:00 p.m. Further in the cross-
     examination, PW-11 has clearly stated that when they were monitoring
     the place of occurrence for about one hour and during that period many
     persons came in and out of the office of the appellant. Added to the
G    same, admittedly, after completion of the phenolphthalein test, statement
     of the appellant was not recorded as required under Rule 47 Clause 1 of
     the Vigilance Manual. Further PW-11 also clearly deposed in the cross-
     examination that he did not test the hands of the appellant-accused
     immediately after payment and handing over of the money and cell phone.
     Further PW-4 and PW-11 both have stated in their evidence that, only
H
         N. VIJAYAKUMAR v. STATE OF TAMIL NADU                                73
                  [R. SUBHASH REDDY, J.]

when TLO has asked the bribe amount and cell phone, the accused               A
produced the same by taking out from the left side drawer of his table. It
is fairly well settled that mere recovery of tainted money, divorced from
the circumstances under which such money and article is found is not
sufficient to convict the accused when the substantive evidence in the
case is not reliable. In view of the material contradictions as noticed
                                                                              B
above in the deposition of key witnesses, the benefit of doubt has to go
to the accused-appellant.
        10. Mainly it is contended by Sri Nagamuthu, learned senior counsel
appearing for the appellant that the view taken by the trial court is a
“possible view”, having regard to evidence on record. It is submitted
that the trial court has recorded cogent and valid reasons in support of      C
its findings for acquittal. Under Section 378, Cr.PC, no differentiation is
made between an appeal against acquittal and the appeal against
conviction. By considering the long line of earlier cases this Court in the
judgment in the case of Chandrappa & Ors. v. State of Karnataka
(2007) 4 SCC 415 has laid down the general principles regarding the           D
powers of the appellate court while dealing with an appeal against an
order of acquittal. Para 42 of the judgment which is relevant reads as
under :
      “42. From the above decisions, in our considered view, the following
      general principles regarding powers of the appellate court while        E
      dealing with an appeal against an order of acquittal emerge :
          (1) An appellate court has full power to review, reappreciate
          and reconsider the evidence upon which the order of acquittal
          is founded.
          (2) The Code of Criminal Procedure, 1973 puts no limitation,        F
          restriction or condition on exercise of such power and an
          appellate court on the evidence before it may reach its own
          conclusion, both on questions of fact and of law.
          (3) Various expressions, such as, “substantial and compelling
          reasons”, “good and sufficient grounds”, “very strong               G
          circumstances”, “distorted conclusions”, “glaring mistakes”,
          etc. are not intended to curtail extensive powers of an appellate
          court in an appeal against acquittal. Such phraseologies are
          more in the nature of “flourishes of language” to emphasise
          the reluctance of an appellate court to interfere with acquittal
                                                                              H
74             SUPREME COURT REPORTS                             [2021] 2 S.C.R.


A              than to curtail the power of the court to review the evidence
               and to come to its own conclusion.


               (4) An appellate court, however, must bear in mind that in case
               of acquittal, there is double presumption in favour of the
B              accused. Firstly, the presumption of innocence is available to
               him under the fundamental principle of criminal jurisprudence
               that every person shall be presumed to be innocent unless he
               is proved guilty by a competent court of law. Secondly, the
               accused having secured his acquittal, the presumption of his
C              innocence is further reinforced, reaffirmed and strengthened
               by the trial court.
               (5) If two reasonable conclusions are possible on the basis of
               the evidence on record, the appellate court should not disturb
               the finding of acquittal recorded by the trial court.”
D            Further in the judgment in the case of Murugesan (supra) relied
     on by the learned senior counsel for the appellant, this Court has
     considered the powers of the High Court in an appeal against acquittal
     recorded by the trial court. In the said judgment, it is categorically held
     by this Court that only in cases where conclusion recorded by the trial
E    court is not a possible view, then only High Court can interfere and
     reverse the acquittal to that of conviction. In the said judgment, distinction
     from that of “possible view” to “erroneous view” or “wrong view” is
     explained. In clear terms, this Court has held that if the view taken by
     the trial court is a “possible view”, High Court not to reverse the acquittal
     to that of the conviction. The relevant paragraphs in this regard where
F    meaning and implication of “possible view” distinguishing from “erroneous
     view” and “wrong view” is discussed are paragraphs 32 to 35 of the
     judgment, which read as under :
            “32. In the above facts can it be said that the view taken by the
            trial court is not a possible view? If the answer is in the affirmative,
G           the jurisdiction of the High Court to interfere with the acquittal of
            the appellant-accused, on the principles of law referred to earlier,
            ought not to have been exercised. In other words, the reversal of
            the acquittal could have been made by the High Court only if the
            conclusions recorded by the learned trial court did not reflect a
            possible view. It must be emphasised that the inhibition to interfere
H
  N. VIJAYAKUMAR v. STATE OF TAMIL NADU                                   75
           [R. SUBHASH REDDY, J.]

must be perceived only in a situation where the view taken by the         A
trial court is not a possible view. The use of the expression “possible
view” is conscious and not without good reasons. The said
expression is in contradistinction to expressions such as “erroneous
view” or “wrong view” which, at first blush, may seem to convey
a similar meaning though a fine and subtle difference would be
                                                                          B
clearly discernible.
33. The expressions “erroneous”, “wrong” and “possible” are
defined in Oxford English Dictionary in the following terms:
“erroneous.— wrong; incorrect.
wrong.—(1) not correct or true, mistaken.                                 C

          (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 or
          probable.”                                                      D
34. It will be necessary for us to emphasise that a possible view
denotes an opinion which can exist or be formed irrespective of
the correctness or otherwise of such an opinion. A view taken by
a court lower in the hierarchical structure may be termed as
erroneous or wrong by a superior court upon a mere disagreement.          E
But such a conclusion of the higher court would not take the view
rendered by the subordinate court outside the arena of a possible
view. The correctness or otherwise of any conclusion reached by
a court has to be tested on the basis of what the superior judicial
authority perceives to be the correct conclusion. A possible view,
                                                                          F
on the other hand, denotes a conclusion which can reasonably be
arrived at regardless of the fact where it is agreed upon or not by
the higher court. The fundamental distinction between the two
situations have to be kept in mind. So long as the view taken by
the trial court can be reasonably formed, regardless of whether
the High Court agrees with the same or not, the view taken by the         G
trial court cannot be interdicted and that of the High Court
supplanted over and above the view of the trial court.
35. A consideration on the basis on which the learned trial court
had founded its order of acquittal in the present case clearly reflects
a possible view. There may, however, be disagreement on the               H
76             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A           correctness of the same. But that is not the test. So long as the
            view taken is not impossible to be arrived at and reasons therefor,
            relatable to the evidence and materials on record, are disclosed
            any further scrutiny in exercise of the power under Section 378
            CrPC was not called for.”
B           Further, in the case of Hakeem Khan & Ors. v. State of Madhya
     Pradesh (2017) 5 SCC 719 this Court has considered powers of appellate
     court 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 court
     is not agreeable for the High Court, even then such “possible view”
     recorded by the trial court cannot be interdicted. It is further held that so
C    long as the view of trial court can be reasonably formed, regardless of
     whether the High Court agrees with the same or not, verdict of trial
     court cannot be interdicted and the High court cannot supplant over the
     view of the trial court. Paragraph 9 of the judgment reads as under :
            “9. Having heard the learned counsel for the parties, we are of
D           the view that the trial court’s judgment is more than just a possible
            view for arriving at the conclusion of acquittal, and that it would
            not be safe to convict seventeen persons accused of the crime of
            murder i.e. under Section 302 read with Section 149 of the Penal
            Code. The most important reason of the trial court, as has been
E           stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of
            a winter evening, it would be dark, and, therefore, identification of
            seventeen persons would be extremely difficult. This reason,
            coupled with the fact that the only independent witness turned
            hostile, and two other eyewitnesses who were independent were
            not examined, would certainly create a large hole in the prosecution
F           story. Apart from this, the very fact that there were injuries on
            three of the accused party, two of them being deep injuries in the
            skull, would lead to the conclusion that nothing was premeditated
            and there was, in all probability, a scuffle that led to injuries on
            both sides. While the learned counsel for the respondent may be
G           right in stating that the trial court went overboard in stating that
            the complainant party was the aggressor, but the trial court’s
            ultimate conclusion leading to an acquittal is certainly a possible
            view on the facts of this case. This is coupled with the fact that
            the presence of the kingpin Sarpanch is itself doubtful in view of

H
         N. VIJAYAKUMAR v. STATE OF TAMIL NADU                                77
                  [R. SUBHASH REDDY, J.]

      the fact that he attended the Court at some distance and arrived        A
      by bus after the incident took place.”
        11. By applying the above said principles and the evidence on
record in the case on hand, we are of the considered view that having
regard to material contradictions which we have already noticed above
and also as referred to in the trial court judgment, it can be said that      B
acquittal is a “possible view”. By applying the ratio as laid down by this
Court in the judgments which are stated supra, even assuming another
view is possible, same is no ground to interfere with the judgment of
acquittal and to convict the appellant for the offence alleged. From the
evidence, it is clear that when the Inspecting Officer and other witnesses
who are examined on behalf of the prosecution, went to the office of the      C
appellant-accused, appellant was not there in the office and office was
open 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 currency
and cell phone were taken out from the drawer of the table by the appellant
at their instance. There is also no reason, when the tainted notes and the    D
cell phone were given to the appellant at 05:45 p.m. no recordings were
made and the appellant was not tested by PW-11 till 07:00 p.m. There
are material contradictions in the deposition of PW-2 and it is clear from
his deposition that he has developed animosity against the appellant and
he himself has stated in the cross-examination that he was insulted earlier
as he belonged to scheduled caste. Further there is no answer from            E
PW-11 to conduct the phenolphthalein test after about an hour from
handing over tainted notes and cell phone. The trial court has disbelieved
PW-2, 3 and 5 by recording several valid and cogent reasons, but the
High Court, without appreciating evidence in proper perspective, has
reversed the view taken by the trial court. Further, the High Court also      F
has not recorded any finding whether the view taken by the trial court is
a “possible view” or not, having regard to the evidence on record. Though
the 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 the
witnesses is not a possible view, the High Court ought not have interfered
with the acquittal recorded by the trial court. In view of the material       G
contradictions, the prosecution has not proved the case beyond reasonable
doubt to convict the appellant.
      12. It is equally well settled that mere recovery by itself cannot
prove the charge of the prosecution against the accused. Reference can
                                                                              H
78             SUPREME COURT REPORTS                           [2021] 2 S.C.R.


A    be made to the judgments of this Court in the case of C.M. Girish
     Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and
     in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC
     55. In the aforesaid judgments of this Court while considering the case
     under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption
     Act, 1988 it is reiterated that to prove the charge, it has to be proved
B
     beyond reasonable doubt that accused voluntarily accepted money
     knowing it to be bribe. Absence of proof of demand for illegal gratification
     and mere possession or recovery of currency notes is not sufficient to
     constitute such offence. In the said judgments it is also held that even
     the presumption under Section 20 of the Act can be drawn only after
C    demand for and acceptance of illegal gratification is proved. It is also
     fairly well settled that initial presumption of innocence in the criminal
     jurisprudence gets doubled by acquittal recorded by the trial court. The
     relevant 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 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
E          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 : (2013) 2
           SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779
           : (2009) 2 SCC (Cri) 1] .
F          8. In the present case, the complainant did not support the
           prosecution case insofar as demand by the accused is concerned.
           The prosecution has not examined any other witness, present at
           the time when the money was allegedly handed over to the accused
           by the complainant, to prove that the same was pursuant to any
G          demand made by the accused. When the complainant himself had
           disowned what he had stated in the initial complaint (Ext. P-11)
           before LW 9, and there is no other evidence to prove that the
           accused had made any demand, the evidence of PW 1 and the
           contents of Ext. P-11 cannot be relied upon to come to the
           conclusion that the above material furnishes proof of the demand
H
         N. VIJAYAKUMAR v. STATE OF TAMIL NADU                                79
                  [R. SUBHASH REDDY, J.]

      allegedly made by the accused. We are, therefore, inclined to           A
      hold that the learned trial court as well as the High Court was not
      correct in holding the demand alleged to be made by the accused
      as proved. The only other material available is the recovery of the
      tainted currency notes from the possession of the accused. In
      fact such possession is admitted by the accused himself. Mere
                                                                              B
      possession and recovery of the currency notes from the accused
      without proof of demand will not bring home the offence under
      Section 7. The above also will be conclusive insofar as the offence
      under Sections 13(1)(d)(i) and (ii) is concerned as in the absence
      of any proof of demand for illegal gratification, the use of corrupt
      or illegal means or abuse of position as a public servant to obtain     C
      any valuable thing or pecuniary advantage cannot be held to be
      established.
      9. Insofar as the presumption permissible to be drawn under
      Section 20 of the Act is concerned, such presumption can only be
      in respect of the offence under Section 7 and not the offences          D
      under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is
      only on proof of acceptance of illegal gratification that presumption
      can be drawn under Section 20 of the Act that such gratification
      was received for doing or forbearing to do any official act. Proof
      of acceptance of illegal gratification can follow only if there is
      proof of demand. As the same is lacking in the present case the         E
      primary facts on the basis of which the legal presumption under
      Section 20 can be drawn are wholly absent.”
       The above said view taken by this Court, fully supports the case
of the appellant. In view of the contradictions noticed by us above in the
depositions of key witnesses examined on behalf of the prosecution, we        F
are of the view that the demand for and acceptance of bribe amount and
cell phone by the appellant, is not proved beyond reasonable doubt. Having
regard to such evidence on record the acquittal recorded by the trial
court is a “possible view” as such the judgment of the High Court is fit to
be set aside. Before recording conviction under the provisions of             G
Prevention of Corruption Act, courts have to take utmost care in scanning
the evidence. Once conviction is recorded under provisions of Prevention
of Corruption Act, it casts a social stigma on the person in the society
apart from serious consequences on the service rendered. At the same
time it is also to be noted that whether the view taken by the trial court
                                                                              H
80             SUPREME COURT REPORTS                           [2021] 2 S.C.R.


A    is a possible view or not, there cannot be any definite proposition and
     each case has to be judged on its own merits, having regard to evidence
     on record.
             13. Learned counsel for the appellant has also submitted that the
     judgment and conviction for the offence under Section 7 of the Act
B    dated 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 not
     necessary to decide such issue. The learned counsel for the State has
     submitted that as per the amended copy of the memo, the appellant has
     challenged only judgment/order dated 22.09.2020 and 29.09.2020 and
     there is no challenge to the earlier judgment of conviction dated 28.08.2020
C    and the order of sentence dated 15.09.2020, but at the same time it is to
     be noticed when the judgment is subsequently rendered on 22.09.2020
     for the offence under Section 7 of the Act and further sentence is also
     imposed vide order dated 29.09.2020, the appellant had filed interlocutory
     application seeking amendment and the same was allowed by this Court.
D    In that view of the matter, merely because in the amended memo the
     appellant has not mentioned about the judgment dated 28.08.2020 and
     the order dated 15.09.2020, same is no ground to reject the appeals on
     such technicality. Further the judgments relied by the learned counsel
     for the State also are of no assistance in support of his case to sustain
     the conviction recorded by the High Court.
E
            14. For the reasons stated supra, these appeals are allowed and
     the impugned judgments of conviction dated 28.08.2020 and 22.09.2020
     and orders imposing sentence dated 15.09.2020 and 29.09.2020 are hereby
     set aside. The appellant be released forthwith from the custody, unless
     otherwise his custody is required in connection with any other case.
F
     Divya Pandey                                                  Appeals allowed




G




H