STATE OF KERALA AND ANR.versusC.P. RAO

                        [2011] 6 S.C.R. 864


A                 STATE OF KERALA AND ANR.
                                 V.
                             C.P. RAO
                (Criminal Appeal No. 1098 of 2006)

B                          MAY 16, 2011
    [ASOK KUMAR GANGULY AND DEEPAK VERMA, JJ.]

         Prevention of Corruption Act, 1988 - ss. 7 and 13(2) rlw
C   s.13(1)(d) - Bribery case - Non-examination of complainant
    - Effect of - Allegation that respondent demanded illegal
    gratification from complainant CW1 for allotting pass marks
    to D-Pharma students in practical examination - Conviction
    of respondent by trial court - High Court acquitted the
    respondent on the ground that the complainant was not
D   examined - Justification of - Held: Justified - In view of the
    examination system prevailing, respondent alone was not in
    a position to allot higher marks - Besides, it is the case of
    the respondent that when CW 1 met him in a hotel room, the
E   respondent shouted that some currency notes had been thrust
    into his pocket by CW 1 - Such shouts were heard by PW-1
    and PW 2 - Their evidence could not be, in any way, shaken
    by manner of cross-examination - Further, PW 3 gave
    evidence of the previous animosity between the college
F   authorities and the respondent - In the background of these
    facts, the non-examination of CW 1 was very crucial - The
    case was not proved beyond reasonable doubt.

         Appeal - Against order of acquittal - Scope of
    interference - Discussed.
G
       The prosecution case was that the respondent
    demanded illegal gratification of Rs. 5000/- from the
    complainant CW 1 for allotting pass marks to D-Pharma

H                                864
     STATE OF KERALA AND ANR. v. C.P. RAO              865

students in practical examination. The respondent was         A
convicted under Sections 7 and 13(2) read with Section
13(1 )(d) of Prevention of Corruption Act, 1988. On appeal,
the High Court acquitted the respondent on the ground
that CW 1 was not examined and the only explanation
given was that he was not available in the country but no     B
details were given as to where the complainant was.
Hence the present appeal.

    Dismissing the appeal, the Court

     HEDL:1. It is an admitted case that the accused- C
respondent alone cannot give such marks. In view of the
examination system prevailing such marks have to be
approved by others. The respondent alone, therefore, is
admittedly not in a position to allot higher marks. Apart
                                                          0
from that, it is the case of the respondent that when CW
1 met him in a hotel room, the respondent shouted that
some currency notes had been thrust into his pocket by
CW 1. Such shouts of the respondent were heard by PW
1 and PW 2. The evidence of PW 1 and PW 2 were E
recorded by the Trial Court. The evidence of PW 1 and
PW 2 could not be, in any way, shaken by manner of
cross-examination. PW 3 has also given evidence of the
previous animosity between the college authorities and
the respondent who had an occasion to file reports with F
the college authorities on ttie basis of some inspection.
In the background of these facts, especially the non-
examination of CW 1, was very crucial. When there was
no corroboration of testimony of the complainant
regarding the demand of bribe by the accused, it has to G
be accepted that the version of the complainant is not
corroborated and, therefore, the evidence of the
complainant cannot be relied on. [Paras 5 and 6] [868-G-
H; 869-A-E]
                                                              H
    866      SUPREME COURT REPORTS              [2011] 6 S.C.R.

A         Pana/a/ Damodar Rathi v. State of Maharashtra 1979(4)
    sec 526 - relied on.
       2. Mere recovery of tainted money, divorced from the
  circumstances under which it is paid, is not sufficient to
8 convict the accused when the substantive evidence in
  the case is not reliable. The presence of the complainant
  in a bribery case is necessary. The prosecution has to
  prove the charge beyond reasonable doubt like any other
  criminal offence and the accused should be considered
c innocent till it is proved to the contrary by proper proof
  of demand and acceptance of illegal gratification, which
  is the vital ingredient to secure the conviction in a bribery
  case. [Para 10, 11, 12) [870-8-D; 871-A-B]

          C.M. Girish Babu v. CBI, Cochin, High Court of Kera/a
D 2009(3)SCC779; A. Subair v. State of Kera/a 2009(6) SCC
  587 - relied on.

          Suraj Mal v.   State (Delhi Admn.) 1979(4) SCC 725 -
    referred to.
E
       3. Further, it is a well settled principle that when the
  court has to exercise its discretion in an appeal arising
  against an order of acquittal, the Court must remember
  that the innocence of the accused is further re-established
F by the judgment of acquittal rendered by the High Court.
  Against such decision of the High Court, the scope of
  interference by this Court in order of acquittal has been
  very succinctly laid down by a Three-Judge bench of this
  Court in the case of Sanwat Singh as follows:- (1) An
G appellate court has full power to review the evidence
  upon which the order of acquittal is founded; (2) the
  principles laid down in Sheo Swarup's case 1934 LR. 61
  I.A. 398 afford a correct guide for the appellate court's
  approach to a case in disposing of such an appeal; and
H (3) the different phraseology used in the judgments of
     STATE OF KERALA AND ANR. v. C.P. RAO              867


this Court, such as (i) "substantial and compelling           A
reasons", (ii) "good and sufficiently cogent reasons", and
(iii) "strong reasons" are not intended to curtail the
undoubted power of an appellate court in an appeal
against acquittal to review the entire evidence and to
come to its own conclusion; but in doing so it should not     B
only consider every matter on record having a bearing
on the questions of fact and the reasons given by the
court below in support of its order of acquittal in its
arriving at a conclusion on those facts, but should also
express those reasons in its judgment, which lead it to       C
hold that the acquittal was not justified. This Court is in
respectful agreement with the aforesaid salutary
principles settled by this Court and is constrained to hold
that this appeal has no merit and is accordingly
dismissed. (Paras 14, 15) [871-C-H; 872-A-C]                  D

   Sanwat Singh & others v. State of Rajasthan 1961(3)
SCR 120 - relied on.
                    Case Law Reference:                       E
    1979 (4) sec 526        relied on       Para 6, 7, 8
    2009(3)SCC 779          relied on       Para 10
    1979(4) sec 725         referred to     Para 10
                                                              F
    2009(6) sec 587         relied on       Para 11, 12
    1961(3) SCR 120         relied on       Para 14
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1098 of 2006.                                             G

    From the Judgment & Order dated 19.1.2005 of the High
Court of Kerala at Ernakulam in Crl. A.No. 180 of 1998.

    G. Praksh, Ramesh Babu M.R. for the Appellant
                                                              H
    868      SUPREME COURT REPORTS                [2011) 6 S.C.R.


A         P.P. Rao, Guntur Prabhakar for the Respondent.

          The Judgment of the Court was delivered by

          GANGULY, J. 1. Heard learned counsel for the parties.
8      2. This is an appeal against the judgment and order of
  acquittal dated 19th January, 2005 rendered by the High Court.
  The respondent facing a trial, was convicted under Sections 7
  and 13(2) read with Section 13(1 )(d) of Prevention of Corruption
  Act, 1988 by the Special Judge, Thiruvananthapuram, in
C Criminal Case No. 9 of 1996 and the respondent was
  sentenced to undergo rigorous imprisonment for 20 months
  and pay a fine of Rs. 2500/- under the former charge and
  rigorous imprisonment for two years and a fine of Rs. 2500/-
  under the second charge. Default stipulations were also there.
D
       3. The facts relating to that case have been summed up
  in the judgment of the High Court and we are not repeating the
  same here once again.

       4. In passing the order of acquittal, the High Court
E examined and analysed in detail the evidence of the case. The
  High Court found that the complainant CW 1 was not examined
  and the only explanation given was that he was not available
  in the country but no details were given as to where the
F complainant was. The defence of the respondent in this case
  has also been noted by the High Court in some detail.

        5. The prosecution case is that the demand of illegal
  gratification of Rs. 5000/- was made by the respondent from
  CW 1 on 19.10.1994 for the purpose of giving pass marks to
G all the students who appeared in the practical examination of
  pharmaceutical-II in D-Pharma final examination in the year
  1994. It is an admitted case that the respondent alone cannot
  give such marks. In view of the examination system prevailing
  such marks have to be approved by others. The respondent
H alone, therefore, is admittedly not in a position to allot higher
      STATE OF KERALA AND ANR. v. C.P. RAO                 869
            [ASOK KUMAR GANGULY, J.]

marks. Apart from that, it is the case of the respondent that A
when CW 1 met him in a hotel room, the respondent shouted
that some currency notes had been thrust into his pocket by CW
1. Such shouts of the respondent were heard by PW 1 and
PW 2. The evidence of PW 1 and PW 2 were recorded by the
                                                                     1
Trial Court. The evidence of PW 1 and PW 2 could not be, in B
any way, shaken by manner of cross-examination. PW 3 has
also given evidence of the previous animosity between the
college authorities and the respondent who had an occasion
to file reports with the college authorities on the basis of some
inspection.                                                       C

     6. In the background of these facts, especially the non-
examination of CW 1, was found very crucial by the High Court.
The High Court has referred to the decision of this Court in
Pana/al Damodar Rathi Vs. State of Maharashtra 1979(4)           o
$CC 526 wherein a Three-Judge Bench of this Court held that
when there was no corroboration of testimony of the
complainant regarding the demand of bribe by the accused, it
has to be accepted that the version of the complainant is not
corroborated and, therefore, the evidence of the complainant     E
cannot be relied on.

    7. In the aforesaid circumstances, the Three-Judge Bench
in Pannalal Damodar Rathi case(supra) held that there is
grave suspicion about the appellant's complicity and the case    F
has not been proved beyond reasonable doubt. (see para 11)

     8. This Court finds that the appreciation of the ratio in
Pana/al Damodar Rathi case(supra) by the High Court was
correctly made in the facts and circumstances of the case.
                                                                 G
    9. Apart from that, Mr. P.P. Rao, learned counsel for the
respondent has drawn attention of this Court to some other
pronouncements of this Court on the relevant question.

    10. In C.M. Girish Babu Vs. CBI, Cochin, High Court of
                                                                 H
    870      SUPREME COURT REPORTS                  [2011] 6 S.C.R.

A Kera/a reported in 2009(3)SCC 779, this Court while dealing
  with the case under the Prevention of Corruption Act 1988, by
  referring to its previous decision in the case of Suraj Mal Vs.
  State (Delhi Admn.) reported in 1979(4) SCC 725 held that
  mere recovery of tainted money, divorced from the
B circumstances under which it is paid, is not sufficient to convict
  the accused when the substantive evidence in the case is not
  reliable. The mere recovery by itself cannot prove the charge
  of the prosecution against the accused. In the absence of any
  evidence to prove payment of bribe or to show that the accused
C voluntarily accepted the money knowing it to be bribe conviction
  cannot be sustained. (See para 18)

      11. In a subsequent decision of this Court also under the
  Prevention of Corruption Act, in the case of A. Subair Vs. State
D of Kera/a 2009(6) SCC 587, this Court made certain pertinent
  observations about the necessity of the presence of the
  complainant in a bribery case. The relevant observations have
  been made in paragraph 18 and 19 which are quoted below:-

E         18. The High Court held that since the Special Judge
          made attempts to secure the presence of the complainant
          and those attempts failed because he was not available
          in India, there was justification for non-examination of the
          complainant.
F         19. We find it difficult to countenance the approach of the
          High Court. In the absence of semblance of explanation
          by the investigating officer for the non-examination of the
          complainant, it was not open to the courts below to find
          out their own reason for not tendering the complainant in
G         evidence. It has, therefore, to be held that the best
          evidence to prove the demand was not made available
          before the court.
       12. Those observations quoted above are clearly
H applicable in this case. In the context of those observations,
      STATE OF KERALA AND ANR. v. C.P. RAO                      871
            [ASOK KUMAR GANGULY, J.]

this Court in paragraph 28 of A. Subair (supra) made it clear          A
that the prosecution has to prove the charge beyond reasonable
doubt like any other criminal offence and the accused should
be considered innocent till it is proved to the contrary by proper
proof of demand and acceptance of illegal gratification, which
is the vital ingredient to secure the conviction in a bribery case.    B

      13. In view of the aforesaid settled principles of law, we
find it difficult to take a view different from the one taken by the
High Court.

      14. In coming to its conclusion, we are reminded of the well C
settled principle that when the court has to exercise its
discretion in an appeal arising against an order of acquittal, the
Court must remember that the innocence of the accused is
further re-established by the judgment of acquittal rendered by
the High Court. Against such decision of the High Court, the 0
scope of interference by this Court in order of acquittal has ·
been very succinctly laid down by a Three-Judge bench of this
Court in the case of Sanwat Singh & others Vs. State of
Rajasthan 1961(3) SCR 120. At page 129, Justice Subba
Rao(as His Lordship then was) culled out the principles as E
follows:-

           "The foregoing discussion yields the following
    results: (1) an appellate court has full power to review the
    evidence upon which the order of acquittal is founded; (2)         F
    the principles laid down in Shea Swarup's case 1934 LR.
    61 I.A. 398 afford a correct guide for the appellate court's
    approach to a case in disposing of such an appeal; and
    (3) the different phraseology used in the judgments of this
    Court, such as (i) "substantial and compelling reasons", (ii)      G
    "good and sufficiently cogent reasons", and (iii) "strong
    reasons" are not intended to curtail the undoubted power
    of an appellate court in an appeal against acquittal to
    review the entire evidence and to come to its own
    conclusion; but in doing so it should not only consider every      H
    872       SUPREME COURT REPORTS                 [2011] 6 S.C.R.

A         matter on record having a bearing on the questions of fact
          and the reasons given by the court below in support of its
          order of acquittal in its arriving at a conclusion on those
          facts, but should also express those reasons in its
          judgment, which lead it to hold that the acquittal was not
B         justified."

         We are in respectful agreement with the aforesaid salutary
    principles settled by this Court and we are constrained to hold
    that this appeal has no merit and is accordingly dismissed.
c B.B.B.                                         Appeal dismissed.