Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal, Prevention of Money Laundering Act (New Delhi): A Coram of Manmohan Singh (Chairman), J. and G.C. Mishra (Member) allowed an appeal under Section 26 of the Prevention of Money Laundering Act, 2002 against an order passed by the Adjudicating Authority for attaching property.

In the instant case the CBI registered a criminal case under Section 120-B of Penal Code, 1860 read with Sections 7, 12, 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 against one Joint Director of Enforcement Directorate (ED) wherein it was alleged that he assisted the appellant (herein), indulging in corrupt practices in an investigation. It was also alleged that they had taken a huge amount of bribes as quid-pro-quo for acts of omission and commission during the said investigation. As a result, the appellant was arrested by CBI and a charge sheet was filed against him. On the basis of the registration of the case by CBI, a Prevention of Money Laundering Act, 2002 (PMLA) case was also recorded at New Delhi. The ED provisionally attached the immovable property of the appellant which was confirmed by the Adjudicating Authority.

The respondent’s counsel, Shilpi Satyapriya Satyam, contended that the aforesaid property was attached as a “value thereof” in accordance with provision made under Section 2(1)(u) read with Section 2(1)(v) of the PMLA. The counsel for the appellant, R.K. Handoo, drew the attention of the Tribunal to the provision in Section 8(3)(a) of PMLA, 2002 as amended by Act 13 of 2018 which reads as, “a) continue during [investigation for a period not exceeding ninety days or] the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be. On the basis of this the counsel contended that the confirmation order of attachment passed by the Adjudicating Authority did not survive. Also, no prosecution complaint was filed against the appeal, and hence the appeal be allowed.

The Tribunal found, “It is strange to note here that an immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case.” It was further noted, “Section 8(3)(a) of PMLA has been amended by the Act 13 of 2018, wherein a limitation period has been provided for continuation of attachment or retention of property or record post confirmation of attachment/retention and it is the intention of the legislature not to allow the Investigating Authority to get the property attached or retained the record/documents/items indefinitely in the name of investigation.”

Thus, the appeal was allowed. The Tribunal directed the appellant to move to the concerned Special Court for an appropriate remedy, wherein the Prosecution Complaint was pending and his property was made part and parcel of that complaint.[Sanjay Kumar v. Deputy Director Directorate of Enforcement, New Delhi, 2019 SCC OnLine ATPMLA 9, decided on 12-04-2019]

Case BriefsHigh Courts

Bombay High Court: B.P. Dharmadhikari, J. allowed a criminal appeal and acquitted the appellant who was convicted and sentenced by the trial court for commission of an offence punishable under Section 12 (punishment for abetment of offences) of the Prevention of Corruption Act, 1988.

The appellant was charged with aiding the main accused, an Assistant Sub-Inspector, in accepting a bribe from the complainant and thereby committing an offence under Section 12. The main accused died during the pendency of the trial and therefore the case against him abated. The appellant, however, was convicted by the trial court.

A.H. Jamal, Advocate, representing the appellant contended that any offence under Section 7 or Section 13 itself having not been established, there was no question of offence of abetment under Section 12. Per contra, N.R. Patil, Assistant Government Pleader, appearing for the State supported the trial court’s Judgment.

Relying on the decision of the Supreme Court in Sadashiv Mahadeo Yavaluje v. State of Maharashtra, (1990) 1 SCC 299 and CBI v. V.C. Shukla, (1988) 3 SCC 410, the High Court noted: “It was never the case of the prosecution that the appellant instigated complainant to pay bribe or then engaged himself and conspired to facilitate receipt of bribe. In fact, there is no charge of conspiracy at all. The only remaining part, therefore, is of aiding and, the provisions of Clause (iii) of Section 107 IPC (which defines abetment) show that aiding has to be with intention.” In Court’s view, the facts necessary to demonstrate that the appellant was dwelling under such intention were not brought on record. Prosecution only established the payment of Rs 1500 by the complainant to the appellant. However, its nature as a bribe could not be established. Therefore, it was held that the appellant’s conviction under Section 12 was unsustainable. the appeal was allowed and the appellant was acquitted. [Abdul Mannan Mohd. Yusuf v. State of Maharashtra, 2019 SCC OnLine Bom 824, decided on 16-05-2019]

Case BriefsSupreme Court

Supreme Court: A bench comprising of A.M. Sapre and Indu Malhotra, JJ. allowed an appeal filed against the judgment of Delhi High Court wherein it upheld the order of the trial court convicting the appellant under Sections 7,13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.

The appellant was an employee of the Delhi Electricity Supply Undertaking, working on the post of Inspector at the time relevant. An FIR was filed against him and one Rajinder Kumar, another employee of DESU, wherein it was alleged that the appellant had demanded Rs 4000 for installation of electricity connection in complainant’s factory. On the basis of FIR, the CBI formed a raiding party and the whole procedure was followed. On the scene, the appellant asked the complainant to hand over the money to Rajinder Kumar. As soon as Rajinder Kumar accepted the money, the raiding party came in and the accused were caught. The trial court convicted the appellant as aforestated. However, Rajinder Kumar was acquitted from all the charges. It is pertinent to note that both the accused were acquitted of the charge under Section 120-B IPC (criminal conspiracy). The appellant filed an appeal to the High Court which was dismissed.

The Supreme Court, sitting in appeal, perused the record and noted that the case of the prosecution was that the appellant conspired with Rajinder Kumar to accept illegal gratification from the complainant. The Court was of the opinion that once Rajinder Kumar and the appellant stood acquitted of the charge of conspiracy and further, Rajinder Kumar was acquitted of the charges under PC Act, the charged against the appellant must also fall on the ground. Furthermore, in order to prove its case against the appellant, it was necessary for the prosecution to prove twin requirements of demand and acceptance of the bribe amount by the appellant. It was the case of the prosecution that the money was accepted by Rajinder Kumar and since the accused were acquitted of the charge of conspiracy, it could not be said that Rajinder Kumar accepted the money as illegal gratification for it on behalf of the appellant. In such circumstances, there was no evidence to prove that the appellant accepted the money from the complainant. Resultantly, the Court held that the judgment impugned requires interference which was accordingly set aside. The appeal was. allowed and the appellant was acquitted of all the charges. [Dashrath Singh Chauhan v. CBI, 2018 SCC OnLine SC 1841, decided on 09-10-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi and R. Banumathi, JJ. reversed the decision of the Gujarat High Court which had acquitted the accused of the charges under Prevention of Corruption Act, 1988.

The accused were working in the Non-Agriculture Department. The complainant was a businessman who wanted to start a new firm. Permission for non-agricultural use of the land was sought from the Department. The accused were alleged to have demanded bribe for expediting the process. Rs 500 were paid to the Accused 1 through Accused 2, who was caught red-handed in the trap laid by the ACB. They were tried for the offences punishable under Sections 7 and 13(1)(d) of the Act. The trial court convicted the accused and sentenced them accordingly. However, on appeal, the High Court acquitted the accused holding that the case was not proved against the accused. Aggrieved by this decision, the State preferred the instant appeal.

At the outset, the Supreme Court observed that to prove the offence of bribe, the demand and acceptance of illegal gratification was sine qua non. On the facts of the case, the Court found that statements of PWs 1 and 2 along with the recovery of bribe amount after following proper procedure by the ACB, proved the case against the accused. Further, it was observed that the presumption against the accused under Section 20 is a rebuttable one and the degree of proof is the preponderance of probabilities. However, in the present case, the accused were not able to give any explanation to rebut that presumption. In such circumstances, the Supreme Court was of the opinion that the High Court ought not to interfere with the decision of the trial court that suffered from no infirmity. Hence, the impugned judgment of the Gujarat High Court was set aside and that of the trial court was reaffirmed. However, considering that the matter was almost 27 years old, the sentence of the accused was reduced from 2 years to 1 year. [State of Gujarat v. Navinbhai Chandrakant Joshi,2018 SCC OnLine SC 699, dated 17-07-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Amol Rattan Singh, J. quashed an FIR relating to ‘electoral offence’ in a criminal case which was pending since 20 years.

Petitioners were before the Court praying for quashing the FIR registered under Section 171-A IPC and the proceedings arising therefrom. In the year 1998, an FIR was registered against the petitioners under Section 171-A on the allegation of giving bribe to voters during Panchayat elections. It was brought to the notice of the Court that the complainant had died during the pendency of proceedings. Complainant’s son appeared on his behalf, and stated that he had entered into a compromise with the petitioners, wholly voluntarily and without any coercion or undue influence, for the betterment of both the parties.

The Court noted the above said facts and circumstances and observed that the alleged offence was committed in the year 1998; the complaint had remained pending without even proceeding from the investigation stage, for past 20 years. Even the report under Section 173 CrPC was not submitted to the competent court. The deceased complainant himself did not pursue the complaint in earnest during his lifetime; the matter was now finally settled by his son. In such circumstances, the Court did not find any reason to disallow the petition. Accordingly, the petition was allowed and the FIR was quashed along with all proceedings emanating therefrom. [Jagroop Singh v. State of Punjab,2018 SCC OnLine P&H 876, dated 01-05-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Manish Pitale, J. allowed a criminal appeal setting aside the order of conviction and sentence under Sections 7, 13(1)(d) read with 13(2) of Prevention of Corruption Act 1988, passed by the trial court against the appellant.

The appellant, who worked as a ‘Talathi’ of the village, was alleged to have taken bribe from the complainant for providing copies of mutation and heir certificates. Aggrieved by the demand of Rs. 200 as illegal gratification by the appellant for providing the above-mentioned documents, the complainant approached the Anti Corruption Bureau. A trap was laid for catching the appellant red-handed while taking the bribe. It was alleged that the complainant went to appellant’s house, where he put Rs. 200 in a newspaper given by the appellant and placed it on the table, wherefrom it was taken by the wife of the appellant. Thereafter, on complainant’s signal the personal of ACB arrested the appellant after conducting the codal procedure. While giving benefit of doubt to his wife, the trial court tried and convicted the appellant under the abovesaid sections. Aggrieved by the same, the appellant preferred the instant appeal.

The High Court perused the record and noted, inter alia, that the factum of ‘demand’ of bribe was not proved against the appellant. Referring to decisions of the Apex Court, the High Court observed that making of ‘demand’ of bribe is essential to establish culpability of the person accused of taking bribe. However, in the instant case, the Court noted that it was only the complainant who stated that he went to the house of the complainant, told him he had come prepared, showed him the bribe money and put it in the newspaper. The High Court was of the view that such evidence could not be said to have established the demand of bribe or illegal gratification by the accused-appellant. The High Court held that in absence of proof of demand, which is a sine qua non for conviction under the provisions of the Act mentioned hereinabove, the appellant could not have been pronounced guilty of taking bribe. Accordingly, the High Court allowed the appeal and set aside the impugned order passed by the trial court. [Sukhdeo Lakshman Parale v. State of Maharashtra, 2018 SCC OnLine Bom 1194, dated 12-6-2018]

Case BriefsSupreme Court

Supreme Court: While reversing the decision laid down by the High Court with respect to the conviction of the appellant under the Prevention of Corruption Act, 1988, T.S. Thakur, CJ. and V. Gopala Gowda, J. held that there is no substantive evidence to prove demand of illegal gratification from the respondent and therefore, directed the Jail Superintendent to release the appellant.

Relying on the decisions laid down by the Hon’ble Supreme Court, in a catena of judgments including the cases of B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55, A. Subair v. State of Kerala, (2009) 6 SCC 587 and State of Kerala v. C.P. Rao (2011) 6 SCC 450, noted Counsel Mr. Sidharth Luthra, appearing on behalf of the appellant contended that demand of illegal gratification by the accused is a sine qua non for constitution of an offence under the Prevention of Corruption Act and mere production of the tainted money recovered from the appellant along with positive result of phenolphthalein test, sans the proof of demand of bribe is not enough to establish the guilt of the charge made against appellant.

While agreeing upon the contention raised by the learned senior counsel, the Court held the impugned judgment and order of the High Court is not only erroneous but also suffers from error in law and therefore, liable to be set aside. [Krishan Chander v. State of Delhi, 2016 SCC OnLine SC 10  decided on January 6, 2016]

High Courts

Bombay High Court: Acquitting a government officer accused of accepting a Rs 60,000 bribe, a bench comprising of AM Thipsay, J held that being caught “red-handed” need not necessarily prove guilt. In the present case, the accused was  arrested for allegedly demanding and taking a bribe for processing an application to buy non-agriculture land. The bribe giver had handed over a wad of notes on which phenolphthalein powder had been applied made the accused’s hands turn pink. The prosecution had pointed to the hands of the officer having turned pink because of the phenolphthalein powder on the notes and claimed it proved that he had accepted the bribe. The police also recovered cash in the accused’s office. 

The Court cited lack of any corroborative evidence and raised doubts about how the powder came into contact with the hands of the officer. The court questioned how both hands of the accused’s could turn pink when the bribe giver in his statement said that he had accepted the cash with his right hand. It was also noted that crucial corroborative evidence in the case such as recorded conversations was vague and that the police had not submitted call detail records and there was no witness to the incident. It was also pointed out that the bribe giver himself was facing seven to eight criminal cases, including cases of attempt to murder and murder, and his statement could not be safely accepted without a thorough and proper scrutiny.

The  Court stated that the theory of acceptance of bribe cannot be believed merely on the basis of the hands turning pink and therefore in the light of the weaknesses in the prosecution case, not only with respect to the demand of bribe but also with respect to its acceptance, it would not be possible to hold the accused guilty. Jitendra Kumar Jain vs. Central Bureau of Investigation, 2014 SCC OnLine Bom 1798, decided on 3-12-2014