A Single Judge Bench comprising of Justice Bharati Dangare of Bombay High Court has in the case of Sunil Hirasingh Rathod v. the State of Maharashtra reiterated that mere recovery of tainted money from the accused in the absence of proof of demand is not sufficient to sustain the conviction. The High Court has observed that in a criminal trial, an accused doesn’t have to prove his case with the same rigor with which the prosecution is required to prove theirs. It said that once the accused gives a reasonable and probable explanation, the prosecution must prove the explanation is false. It must be mentioned here that the observation was made in the backdrop of ‘permissible level of presumption of motive’ under Section 20 of the Prevention of Corruption Act.
Factual Background
The present appeal was filed impugning an order and judgment of Special Judge under P.C. Act Pune whereby the respondent (referred as accused) was acquitted of offence punishable under Section 7 and Sections 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
Reasoning and Decision of the Court
The Court noted that while deciding any case involving the offence under the Anti Corruption Law, one more aspect which is to be borne in mind is that the complainant’s evidence has to be scrutinized meticulously, since giving bribe is also an offence, but, then in order to arrest a person who has demanded and then accepting the bribe, testimony of such persons require to be carefully tested.
The
complainant himself is in the nature of accomplice and his version,
prima facie, demands a corroboration in material particulars that is
conspicuously absent in the case of the prosecution. The demand of
gratification cannot be held to be proved only on the basis of a
complaint filed and the legal position is well settled to the effect
that any absence of proof of demand, mere recovery of tainted money from the accused, cannot sustain his conviction."
The Court further observed that as far as the presumption permissible to be drawn under Section 20 of the P.C. Act is concerned, it can only be drawn in respect of offence under Section 7 and not for the offence punishable under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that a presumption can be drawn Proof of acceptance of illegal gratification can follow only if there is proof of demand. The law is well crystallized that demand of illegal gratification is sine qua non for the constitution of an offence under the provisions of the Act.
"The burden to be discharged by prosecution before sustaining a conviction of an accused under the Prevention of Corruption Act is completely absent in the present case. Proof of acceptance of illegal gratification can follow only when there is proof of demand. The same is conspicuously lacking in the present case and the primary facts on the basis of which presumption under Section 20 of the Act can be drawn are completely amiss. The mere possession and recovery of currency notes from the accused without proof of demand will not establish the offence under Section 7.
Further, the same shall be conclusive insofar as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of proof of demand for illegal gratification, use of corrupt or illegal means of abuse of position as public servants to obtain any valuable thing or pecuniary advantage, cannot be held to be established. The demand of gratification cannot be said to be proved only on the basis of the allegations levelled in the complaint in absence of the allegations levelled in the complaint in absence of any corroboration to that effect. Mere recovery of tainted money from the accused in absence of proof of demand is not sufficient to sustain the conviction."
The Court held merely because of the existence of presumption under Section 20, the burden does not shift on the accused.
"The Evidence Act does not contemplate that the accused should prove the case with the same strictness and rigor as the prosecution is required to prove a criminal charge and it is sufficient if the accused is able to prove his case by a standard of preponderance of probabilities as envisaged under Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because the probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond a reasonable doubt. Once the accused gives a reasonable and probable explanation, it is for the prosecution to prove affirmatively that the explanation is false. In a criminal trial, it is not at all obligatory on the accused to produce evidence in support of its defence and for the purpose of proving his version, he can rely on the admissions given by the prosecution witnesses or documents filed by the prosecution. The prosecution has to stand on its own legs, and if it fails to prove its case beyond a reasonable doubt, the entire edifice of the prosecution case would crumble down.”
The Court held that impugned judgment fails to consider the conspectus of the accusations faced by the five appellants and the learned Judge who has determined 9 points for determination has perfunctorily referred to the evidence placed on record.
"Without appreciating the evidence, the learned Judge has answered the points in the affirmative. From the notes of arguments placed before the learned Judge, it can be seen that comprehensive and extensive arguments were advanced on behalf of the accused persons, but unfortunately, the whole exercise is in vain as the impugned judgment without even touching the evidence on record, record a finding that the prosecution is successful in proving the charge that Accused nos.1 and 2 have obtained pecuniary advantage to the tune of Rs.10 lakhs and Rs.5 lakhs respectively... The exercise which ought to have been taken by the learned Judge is required to be taken at this appellate stage and since it is permissible for this Court to re-appreciate the evidence brought on record, in the exercise of its appellate powers, I was constrained to refer to the entire evidence afresh since the Special Judge did not delve into the evidence nor did not he appreciate the same, as a Court of the first instance who was duty-bound to scrutinize the evidence before arriving at a finding of guilt.”
Finally, the Bench then holds in para 54 that,
“The impugned judgment being perverse, since it is not based on the evidence brought on record, cannot be sustained and is liable to be quashed and set aside. The five appellants in four Appeals deserve an acquittal, on appreciation of the evidence and they stand acquitted of the charges framed against them by allowing their respective Appeals. Hence, the following order."
Held
The Appeals are allowed. Judgment and orders are set aside. All the aforesaid appellants are acquitted of the charge framed against him. Bail bonds were canceled.
Case Details
Case Name: Sunil Hirasingh Rathod v. the State of Maharashtra
Case Number: Criminal Appeal No. 1137 of 2018 along with Criminal Appeal No. 1039, 1102, and 1114 of 2018
Read Order ;
SOURCE ; latestlaws.com/
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