SELVARAJversusSTATE OF KARNATAKA

                      [2015] 9 S.C.R. 381



                          SELVARAJ                               A
                               V.

                   STATE OF KARNATAKA
              (Criminal Appeal No.1172 of 2008)
                                                                 B
                      AUGUST 18, 2015
           [H.L. DATTU, CJI, ARUN MISHRA AND
                    AMITAVA ROY, JJ.)

        Prevention of Corruption Act, 1947 - s. 5(1)(d) - c
  Allegation of demand of illegal gratification against public
  servant-appellant - Trap laid and tainted money recovered
  from the possession of the appellant - However, death of
  complainant befC?re tt1e commencement of the trial -Acquittal
  by trial court, however High Court convicted and sentenced D
  the appellant for commission of offence punishable u/s.
  5(1)(d)- On appeal, held: Acceptance of the bribe was not
  established by adducing cogent evidence - In view of the
  reasons given by the trial court and on appraisal of the
  evidence, the view taken by the trial court was a plausible E
  one - High Court should not have interfered without going
. into the reasoning employed by the trial court and re-appraisal
  of the evidence - Judgment of the f-ligh Court was short and
  cryptic - Order passed by the High Goud set aside and that
  of the trial court restored.                                    F

     Allowing the appeal, the Court

     HELD: 1.1 The High Court while reversing the
 judgment of acquittal in a short and cryptic judgment, G
 did not care to go into the various reasoning e_mployed
 by the trial court. Appreciation of evidence to hold it to
 be credible was required which was not done by the High

                              381                               H
382      SUPREME COURT REPORTS                (2015] 9 S.C.R.

A Court at all. In a cursory manner without re-appraisal of
  the evidence and probabilities, the judgment of acquittal
  was reversed. Though the High Court has the power to
  re-appraise the evidence in appeal against acquittal but
  that was not done. It is incumbent upon the High Court
B while reviewing the evidence and to reverse the order of
  acquittal to consider all matters on record including the
  reasons given by the trial court in respect of the order of
  acquittal and should consider all the circumstances in
  favour of the accused which was not done. [Para 10, 11]
C (387-8, E-F]

      1.2 The acceptance of the bribe was not established
  by adducing cogent evidence. Considering the reasons
  given by the trial court and on appraisal of the evidence,
D the view taken by the trial court was a plausible one and
  could not have been interfered with by the High Court,
  that too without coming to the close quarters of the
  reasoning and re-appraisal of the evidence. The
  judgment of the High Court is not only cryptic but also
E no attempt was made to look into the evidence-both oral
  and documentary. Thus, the judgment and order passed
  by the High Court is set aside and that of the trial court.
  restored. [Para 17] (394-B-D]

F     Kanu Ambu Vish v. The State of Maharashtra 1971 (1)
  SCC 503; Jagan M. Seshadri v. State of TN. 2002 (9) SCC
  639; State through Inspector of Police, A.P. v. K.
  Narasimhachary 2005 (4) Suppl. SCR 197: 2005 (8) SCC
  364; A. Subair v. State of Kera/a 2009 (6) SCC 587; State of
G Kera/a &Anr. v. C.P Rao 2011 (6) SCR 864: 2011 (6) SCC
  450; G. V Nanjundiah v. State (Delhi Administration) 1987
  (Supp) SCC 266 - referred to.
                     Case Law Reference
H
       1911 (1) sec 503         refoned to.       Para 11
          SELVARAJ v. STATE OF KARNATAKA                          383


    2002 (9) sec 639           referred to.        Para 12         A

    2005 (4) Suppl. SCR 197 referred to.           Para 12

    2009 (6) sec 587           referred to.        Para 14

    2011 (6) SCR 864           referred to.        Para 15         B

    1987 (Supp) sec 266        referred to.        Para 16

   CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1172 of 2008.                                           c
    From the Judgment and Order dated 07.02.2006 of the
High Court of Karnataka at Bangalore in Criminal Appeal No.
878of1999.

    Kiran Suri, S. J. Amith, Dr. Vipin Gupta for the Appellant.    D

    Anitha Shenoy for the Respondent.

    The Judgment of the Court was delivered by

     ARUN MISHRA, J. 1. The appeal has been preferred as           E
against the judgment and order convicting and sentencing the
appellant for commission of offence punishable under section
5( 1}( d) of the Prevention of Corruption Act, 1947, thereby
reversing the judgment of acquittal passed by the trial court      F
and sentencing him forthree months with a fine of Rs.50,000/
- and in default to undergo SI for six months.

     2. Briefly, the prosecution case is that the appellant was
working as First Division Assistant in the District Treasury,
Hassan. Peter Philip, CW-1 contacted him to secure refund of G
loan subsidy in a sum of Rs.13,990/-. He met the accused on
28.1.1988 who demanded illegal gratification of Rs.200/-. As
the complainant CW-1 did not like it, he contacted the
Lokayukta Police on 1.2.1988 and lodged a complaint. On H
the said date itself, trap was arranged. The Investigating Officer
384         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A     (10) secured presence of PW-1 and PW-2, the two officials of
      the Zila Parishad to act as trap witnesses and smeared
      phenolphthalein powder on the bait money and handed over
      the same to CW-1 with instruction to pay the same on demand.
      PW-2 was instructed to act as a shadow witness.
B
           3. Peter Philip, CW-1, went along with PW-2 to the said
      office. CW-1 requested the accused for passing the bill. On
      demand, CW-1 paid the money fo the accused who kept the
      same under the book on his table. PW-2 witnessed the
C     transaction. On a signal being given by CW-1, the 10 along
      with PW-1 came to the scene, phenolphthalein test was done
      on hand wash, colour of the solution turned pink, the solution
      was collected in a separate bottle and sealed, the money was
      recovered from the possession of the accused as per the
D     seizure memo.

           4. The complainant CW-1 died before the commencement
      of the trial. The prosecution examined, in all, 9 witnesses, 23
      documents were exhibited and 8 material objects were
E     submitted. The Special Judge, Hassan, vide judgment and
      order dated 16.4.1999 acquitted the accused. On appeal, the
      High Court has reversed the conviction, hence, the appeal has
      been filed in this Court.

F     5. It was submitted by learned counsel appearing on
  behalf of the appellant that several material circumstances were
  considered by the learned Trial Judge which have not been
  adverted to by the High Court while reversing the judgment of
  acquittal. Thus, an illegality has been committed. The evidence
G which has been adduced could not be said to be reliable. The
  inherent improbabilities have been ignored and the material
  contradictions have been lightly brushed aside. There is no
  assessment of the evidence made by the High Court while
  reversing the judgment of acquittaL
H
          SELVARAJ v. STATE OF KARNATAKA                      385
                  · [ARUN MISHRA, J.]

     6. Learned counsel appearing on behalf of the State has A
supported the judgment and contended that the High Court
has given adequate reasons so as to discard the trivial
contradictions. The prosecution has proved the guilt beyond
the periphery of doubt. No case for interference in the appeal
is made out.                                                   B

       After hearing learned counsel for the parties at length,
and going into the oral and documentary evidence on record,
we are of the considered opinion that in the peculiar facts and
circumstances of the instant case, the judgment and order of C
acquittal ought not to have been interfered with by the High
Court.

      7. The trial court has given varied reasons while acquitting
the appellant. The trial court was cautious in considering the D
evidence in minute details as the complainant CW-1, Peter
Philip, had died who could not be e.xamined and subjected to
cross-examination by the accused. Particularly, when the
complainant had died and could not be subjected to cross-
examination, in our opinion, quality and credibility of the E
evidence adduced by the prosecution cannot be dispensed
with.

     8. The accused was holding the post of First Division
Assistant. He had been transferred on promotion as Head F
Accountant in Sub-Treasurey at Sagar. He stood relieved on
30.1.1988 before the date of incident. The accused was not
working as First Division Assistant in the District Treasury
Office at Hassan on 1.2.1988. The trial court has relied upon
the relieving order Ex. D-1. The trial court has also observed G
that K.C. Rajan, PW-4, has admitted that the accused had
been promoted and transferred as Head Accountant and was
relieved on 30.1.1988. However, he had not handed over the
charge, and on 1.2.1988 the accused did not mark his
attendance as he was under transfer. The accused was H
386        SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A supposed to hand over charge to one Shivaramaiah who was
  not available on 1.2.1988 as he had gone to attend a
  departmental examination. On 1.2.1988, the accused was
  preparing 'charge list' in the office. Relying upon Ex. P-8 the
  trial court came to the conclusion that on transfer of the accused
B on 1.2.1988, G.T. Shivaramaiah was placed in charge of the
  work which used to be looked after by the accused. Charge
  list has not been produced in case it was prepared by the
  accused on 1.2.1988. The accused on 1.2.1988 was not
  competent to transact any official business. Relying upon the
C work distribution register, attendance register and the relieving
  order, the version of K.C. Rajan, PW-4, has not been accepted
  by the trial court. It was also opined that the surrounding
  circumstances did not lend credibility to the prosecution
D version.

       9. The trial court has also given reason for acquittal that
  K.C. Rajan, PW-4 was competent to give final clearance. The
  accused was not the final authority. There was some objection
  by the District Treasury Office. The bill was again presented
E for clearance to the Treasury on 21.1.1988. Thus, it was
  doubted that the accused had deliberately withheld the bill and
  demanded illegal gratification of Rs.200/- from Peter Philip,
  CW-1, on 28.1.1988. The same has been found to be
  improbable. Cogent evidence was required in the
F circumstances. The trial court has found that even before
  recording the First Information Report, the 10 had sent for and
  secured the presence of the witnesses. Thus, the FIR was
  based upon the deliberations between Peter Philip, CW-1 and
G L.Somasekhar, PW-8. The trial court also found that there was
  a discrepancy from where the money was recovered; whether
  it was lying on the table or inside the drawer of the table. It was
  held that the money was not recovered from the possession of
  the accused. The colour of the wash in M0-4 was not pink but
H contained dirty particles. The accused was not in possession
           SELVARAJ v. STATE OF KARNATAKA                        387
                    [ARUN MISHRA, J.)

 of the subsidy bill. Thus, there was no reason to give him the A
 money. The prosecution case that the accused was working
 as First Division Assistant on 1.2.1988 and was in-charge of
 the billing section, has not been found to be proved.

       10. The High Court while reversing the judgment of s
  acquittal in a short and cryptic judgment, has not cared to go
  into the various reasoning employed by the trial court. It has
  gone into only two factual aspects: firstly, into discrepancy as
  to time when the FIR was registered and witnesses were
  summoned, which was found not to be material one; and C
  secondly, it observed whether the money was recovered from
  the drawer of the table or it was lying on the table, was
  insignificant as witnesses might not have remembered it due
  to lapse of time, which are the only reasons attributed for
· reversing the judgment of acquittal.                             D

      11. It is apparent that the High Court has failed in its duty
 to come to the close quarter of the reasoning employed by the
 trial court while reversing the judgment of acquittal.
 Appreciation of evidence to hold it to be credible was required E
 which has not been done by the High Court at all. In a cursory
 manner without re-appraisal of the evidence and probabilities,
 the judgment of acquittal has been reversed. Though the High
 Court has the power to re-appraise the evidence in appeal
 against acqu_ittal but that has not been done. It is incumbent F
 upon the High Court while reviewing the evidence and to
 reverse the order of acquittal to consider all matters on record
 including the reasons given by the trial court in respect of the
 order of acquittal and should consider all the circumstances in
 favour of the accused which has not been done. In Kanu Ambu G
. Vish v. The State of Maharashtra [1971 (1) SCC 503), this
 Court has laid down thus :

     "15. On a consideration of the evidence, we think thatthe
     reversal of the order of acquittal by the High Court was     H
388         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A         not warranted. Though the High Court has power on a
          review of the evidence to reverse the order of acquittal,
          yet in doing so it should not only consider all matters on
          record including the reasons given by the Trial Court in
          respect of the order of acquittar, but should particularly
B         consider those aspects which are in favour of the accused
          and ought not also to act on conjunctions or surmises nor
          on inferences which do riot arise on the evidence in the
          case. In the view we have taken, the Appeal is allowed,
          the judgment of the High Court reversed and the Appellant
c         acquitted. The Appellant being on bail, his bail bond is
          cancelled."

          12. Considering the reasons given by the trial court and
      on appraisal of the evidence, in our considered view, the view
D     taken by the trial court was a possible one. Thus, the High ·
      Court should not have interfered with the judgment of acquittal.
      This Court in Jagan M. Seshadri v. State of T.N. [2002 (9)
      sec 639] has laid down that as the appreciation of evidence
      made by the trial court while recording the acquittal is a
E     reasonable view, it is not permissible to interfere in appeal.
      The duty of the High Court while reversing the acquittal has
      been dealt with by this Court, thus :

          "9. We have, with the assistance of learned counsel for
F         the parties, carefully perused the evidence, particularly,
          the evidence of PW-19, PW-27, PW-30, PW-31, besides
          PW-34. In our opinion, the appreciation of evidence by
          the trial court of these witnesses is sound and proper. On
          the other hand, the High Court has fallen into an error by
G         treating the case as one under Section 13( 1)( e) read with
          Section 13(2) of the 1988 Act and by proceeding to hold
          the appellant guilty by invoking the Explanation to Section
          13(1)( e), which Explanation is conspicuous by its absence
          insofar as Section 5(1)(e) of the Act is· concerned. We
H
          are unable to appreciate the submission of learned counsel
                                              •
          SELVARAJ v. STATE OF KARNATAKA                           389
                   [ARUN MISHRA, J.]

     for the State that PW-31, being the mother-in-law of the       A
     appellant who had supported the explanation offered by
     the appellant regarding receipt of Rs. 50,000/- and Rs.
     40,000/- by him from her should not be believed. She is a
     prosecution witness. She was never declared hostile. The
     prosecution cannot wriggle out of her statement. As a          B
     matter of fact, the main sustenance is sought by the High
     Court of its view on the basis of her evidence. The
     explanation offered by the appellant has not been
     accepted by the High C_ourt by invoking proviso to Section
     13(1}(e). The High Court has opined that since the amount      C
     allegedly received by the appellant from his mother-in-law
     had "not been intimated in accordance with the provisions
    of law", his explanation is not acceptable and the appellant
    would be deemed to have committed criminal misconduct
                                                                    0
    within the meaning of Section 13(2) of the 1988 Act. We
    are constrained to observe that the High Court was dealing
    with an appeal against acquittal. It was required to deal
    with various grounds on which acquittal had been based
    and to dispel those grounds. It has not done so. Salutary       E
    principles while dealing with appeal against acquittal have
    been overlooked by the High Court. If the appreciation of
    evidence by the trial court did not suffer from any flaw, as
    indeed none has been pointed out in the impugned
    judgment, the order of acquittal could not have been set        F
    aside. The view taken by the learned trial court was a
  · reasonable view and even if by any stretch of imagination,
    it could be said that another view was possible, that was
    not a ground sound enough to set aside an order of
    acquittal."                                                     G

    Similar is the decision of this Court in State through
Inspector of Police, A.P v. K. Narasimhachary [2005 (8) SCC
364] : .
                                                                    H
    "24. Having regard to the facts and circumstances of this
                      •
390         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A         case, we are of the opinion that two views are possible
          and the view of the High Court cannot be said to be wholly
          improbable; it cannot be said, in view of the discussions
          made hereinbefore, that the materials brought on record
          would lead to only one conclusion i.e. the guilt of the
B         accused. The impugned judgment, therefore, is
          sustained."

            13. Coming to the question whether the view taken by the
      trial court while acquitting the ace.used was probable, we find
C     that in view of the fact that complainant Peter Philip, CW-1
      died before the trial, as such he was not available for cross-
      examination with respect to the facts which were in his
      knowledge as to the demand of bribe and its payment. We
      have to carefully look into the other evidence available. In the
D     absence of the complainant, the onus lay upon the prosecution
      to adduce credible evidence and to prove the guilt beyond the
      periphery of doubt. K.M.Eregowda, PW-2, had stated that 10
      to 12 other officials were sitting in the same room in which
      bribe was paid. Taking of bribe in the presence of 10 to 12
E     other officials of the Treasury Office is quite improbable. It
      assumes significance in the circumstances from which place
      the money was recovered; whether it was from the possession
      of the accused. PW-1 has stated that he found currency notes
 F    on the table, and the accused was standing behind the table.
      Whereas K.N. Eregowda, PW-2, has stated that the currency
      notes were kept by the accused beneath the book on the table.
      Another witness L.Somashekara, PW-8, 10, has stated that
      he recovered the money from the drawer of the table. The
G     versions given by the three witnesses are different from each
      other. Even if we ignore the contradictions between the versions
      of PW-1 and PW-2, the contradiction with respect to place of
      recovery of money whether it was inside the drawer of table or
      was lying on the table beneath the book is material one and
H     could not have been ignored. Apart from that, we find that the
           SELVARAJ v. STATE OF KARNATAKA                          391
                    [ARUN MISHRA, J.]

10 has stated that he had seized Ex. P-14, release order of A
subsidy on 1.2.1988 and it had been mentioned thereon that it
had been paid. As subsidy stood paid, it was incumbent upon
the prosecution to prove when, in fact, it was paid. Whether it
was paid on 1.2.1988 or earlier, which fact has not been proved
as the very basis of the crime is release of subsidy, for which B
bribe was being demanded by the accused. Though it is not
necessary to prove whether the accused was in a position to
do the work for which he has demanded the bribe, or was
having the competence to do the work for which he has
demanded the bribe, however, in the peculiar facts of the C
instant case when the accused was under transfer, he had
been relieved on 30.1.1988 and while Mr. G. T. Shivaramaiah
was given the charge of the post accused was occupying, he
was not on duty on 1.2.1988. Even if we accept that he was
                                                                  0
preparing the 'charge list' on 1.2.1988, which has not been
produced, coupled with the fact that the complaint was lodged
on the same date and it appears even before registration of
the FIR, trap. witnesses were called, all these facts
improbabilised the version of the prosecution and the trial court E
had opined in the circumstances that there were some
deliberations before recording the FIR. Since the complainant
was not available for cross-examination, the view taken by the
trial court could not be said to be the one which was not
possible in the prevailing scenario. Even if two views are F
possible on the facts, one taken by the trial court did not call
for interference, especially in appeal against acquittal.

     14. In A. Subair v. State of Kera/a [2009 (6) SCC 587],
this Court has laid down that illegal gratification has to be       G
proved like any criminal offence and when the evidence
produced by the prosecution has neither quality nor credibility,
it would be unsafe to rest the conviction on such evidence.
This Court while recording acquittal, has laid down thus:
                                                                    H
    "31. When the evidence produced by the prosecution has
392       SUPREME COURT REPORTS                       [2015] 9 S.C.R.


A       neither quality nor credibility, it would be unsafe to rest
        conviction upon such evidence. It is true that the judgments
        of the courts below are rendered concurrently but having
        considered the matter thoughtfully, we find that the High
        Court as well as the Special Judge committed manifest
 B      errors on account of unwarranted inferences. The
        evidence on record in this case is not sufficient to bring
        home the guilt of the appellant. The appellant is entitled to
        the benefit of doubt."

C       15. In State of Kera/a & Anr. v. C.P Rao [2011 (6) SCC
  450], it has been laid down that recovery of tainted money is
  not sufficient to convict the accused. There has to be
  corroboration of the testimony of the complainant regarding
  the demand of bribe and when the complainant is not available
D for examination during the trial, court has to be cautious while
  sifting the evidence of other witnesses. Charge has to be
  proved beyond reasonable doubt. This Court has laid down
  thus:        ·

E       "12. Those observations quoted above are clearly
        applicable in this case. In the context of those observations,
        this Court in para 28 of A. Subair (supra) made it clear
        that the prosecution has to prove the charge beyond
        reasonable doubt like any other criminal offence and the
F       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. In view of the aforesaid
        settled principles of law, we find it difficult to take a view
G       different from the one taken by the High Court.

        13. In coming to this conclusion, we are reminded of the
        well settled principle that when the court has to exercise
        its discretion in an appeal arising against an order of
H       acquittal, the Court must remember that the innocence of
          SELVARAJ v. STATE OF KARNATAKA .                         393
                   [ARUN MISHRA, J.)

    the accused is further re-established by the judgment of A
    acquittal rendered by the High Court. Against such
    decision of the High Court, the scope of interference by
    this Court is an order of acquittal has been very succinctly
    laid down by a three-Judge Bench of this Court in Sanwat
    Singh v. State of Rajasthan (1961 (3) SCR 120]. At page B
    129, Subba Rao, J. (as His Lordship then was) culled out
    the principles as follows :

      "9. The foregoing discussion yields the following results:
      (1) an appellate court has full power to review the           C
      evidence upon which the order of acquittal is founded;
      (2) the principles laid down in Sheo Swarup case [(1934-
      34) 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         D
      judgments of this Court, such as (i) "substantial and
      compelling 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        E
      and to come to its own conclusion; but in doing so it
      should not 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    F
      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 justified."

     16. In G V Nanjundiah v. State (Delhi Administration)
(1987 (Supp) SCC 266), it was laid down that the allegation of G
bribe taking should be considered along with other material
circumstances. Demand has to be proved by adducing
clinching evidence. When the fact indicating that the
complainant was aware of the amount, was not withheld by H
394         SUPREME COURT REPORTS                   [2015] 9 S.C.R.

A     the accused, this Court disbelieved the allegation of the
      complainant meeting the accused and presence of strangers
      at the time of giving bribe was held to be unnatural.

           17. Thus, acceptance of the bribe has not been established
B     by adducing cogent evidence. In view of the circumstances
      discussed above, the view taken by the trial court was a
      plausible one and could not have been interfered with by the
      High Court, that too without coming to the close quarters of the
      reasoning and re-appraisal of the evidence. The judgment of
C     the High Court is not only cryptic but also no attempt has been
      made to look into the evidence - both oral and documentary.
      Thus, we have.no hesitation in setting aside the judgment and
      order passed by the High Court and restore that of the trial
      court. The appeal is allowed.

      NidhiJain                                        Appeal allowed.