Srinagar: The High Court Wednesday held that mere possession and recovery of currency notes from an accused without proof of “demand” does not constitute an offence under the prevention of Corruption Act, 1988.
Citing Supreme Court judgments in support of its decision, a bench of Justice Sanjay Dhar said, “It is clear that the proof of demand of illegal
gratification and its voluntary acceptance by the accused is gravamen of the offence under Section 5 (1) (d) of the PC Act. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof dehors the proof of demand would, thus, not be sufficient to bring home the charge under the aforesaid provision.”
The court said that the failure of the prosecution to prove the demand and voluntary acceptance of illegal gratification would, therefore, be fatal to the prosecution case against the accused who had been charged for offence under Section 5 (1) (d) of the PC Act.
The court said this while allowing an appeal filed by one Ghulam Muhammad Dar through counsel Bashir Ahmad Bashir against the judgment dated October 5, 2015 passed by Special Judge Anticorruption Srinagar whereby the appellant was convicted for offences under Section 5 (1) (d) read 5 (2) of J&K Prevention of Corruption Act and Section 161 of the Ranbir Penal Code (RPC).
According to the prosecution case, a complainant had approached the erstwhile Vigilance Organisation of Kashmir (VOK) with a written complaint alleging that the accused had demanded illegal gratification of Rs 2000 for processing his GP Fund case.
On the basis of the complaint, the FIR No 16/2004 for offences under Section 5 (1) (d) read 5 (2) of the PC Act and Section 161 of RPC was registered and subsequently on July 26, 2000, a trap was laid by the sleuths of VOK accompanied by independent witnesses and the complainant.
As per the case, the accused was caught red handed while demanding and accepting illegal gratification of Rs 2000 from the complainant.
The tainted money was stated to have been recovered from the possession of the appellant.
After investigation of the case, the offences were found established against the appellant and charge sheet was laid before the trial court.
“In the instant case the complainant has clearly stated that he voluntarily, without any demand, put the money in the pocket of the accused. The independent witness has only seen the complainant handing over the money to the accused whereas the shadow witness is not even sure about it. None of these witnesses has actually heard the accused demanding money from the complainant,” the court said.
Observing that it cannot be said that prosecution has proved beyond reasonable doubt the ingredient of demand and voluntary acceptance of the illegal gratification from the accused, the bench said even the recovery of the tainted money from the possession of the accused was shrouded in suspicious circumstances.
“Thus, the trial court was not justified in raising presumption under Section 4 of the J&K PC Act against the accused,” the court said.
With regard to observation of the trial court that the complainant was influenced during trial to manipulate facts and to come up with such a plea in order to favour the accused, the bench said the observation of the trial court was not supported by any material on record.
“It is clear that demand and acceptance of bribe money by the accused during the trap proceedings has not been established beyond reasonable doubt. The learned trial court, while recording finding on this aspect of the matter, has not appreciated the evidence on record in its correct perspective. Thus, the prosecution has failed to establish this ingredient of the offence against the accused,” the court said.