Proof Of Demand & Voluntary Acceptance Of Bribe Key For Conviction, Recovery Of Marked Currency Notes Not Sufficient: J&K High Court

Acquitting a former Accounts Officer, Justice Puneet Gupta emphasized that the prosecution must establish these fundamental elements beyond a reasonable doubt to convict an accused in corruption cases.

“There can be no dispute that the recovery of currency notes from the accused or the hand wash test even if positive will not prove the accused guilty unless the basic ingredients of demand and voluntary acceptance of bribe are proved by the prosecution. The initial burden unless discharged by the prosecution to prove its case against the accused, the burden does not shift upon the accused to prove his innocence in a case of present nature”, the court remarked.

The case revolved around Mohammad Subhan Shah, a retired Accounts Officer in the Power Development Department (PDD), who was convicted by the Special Judge (Anti-Corruption), Kashmir. Shah was accused of demanding a bribe of ₹1,000 from one Mohammad Amin Misgar to forward his inspection report to higher authorities.

Based on Misgar's complaint, the Vigilance Organization, Kashmir (VOK), conducted a trap operation, recovering the marked currency notes from Shah's coat pocket. The trial court sentenced Shah to one year of imprisonment under the Prevention of Corruption Act, alongside six months under Section 161 of the Ranbir Penal Code (RPC).

Dissatisfied with the conviction, Shah appealed, asserting his innocence and challenging the sufficiency of the evidence.

Adjudicating the matter Justice Puneet Gupta scrutinized the evidence and testimony presented during the trial and made critical observations. The Court emphasized that the prosecution's failure to prove the demand and voluntary acceptance of the bribe was a significant lapse.

While the complainant alleged that the accused demanded bribes to forward an inspection report and clear T.E. bills, only the first allegation was mentioned in the initial complaint and this inconsistency undermined the credibility of the complainant's testimony and cast doubt on the genuineness of the charges.

The role of the shadow witness also came under scrutiny as Justice Gupta observed that the witness admitted to neither hearing any conversation regarding the bribe nor seeing the accused demanding it as his testimony only confirmed the recovery of the currency notes. The Court noted that recovery alone, without corroboration of demand and acceptance, could not sustain a conviction.

“The shadow witness has only stated that he observed some movement and passing of money by the complainant to the accused. The trial court has presumed happening of a vital act of the accused demanding money from the accused and further voluntary accepting of the amount from the complainant when both were not there in the statement of the shadow witness”, the court remarked.

Justice Gupta further highlighted procedural flaws in the investigation, particularly the unexplained five-month delay in preparing the site plan. This delay raised questions about the integrity of the investigation, suggesting that the site plan might have been retrospectively prepared to strengthen the prosecution's case, the court pointed.

Moreover, the Court reiterated the foundational principle that the burden of proof lies on the prosecution as it cannot rely on procedural evidence, such as recovery of marked notes or phenolphthalein tests, to shift the burden to the accused. The prosecution must independently establish all elements of the offense, including demand, acceptance, and recovery, beyond a reasonable doubt, the court maintained.

Quashing the trial court's judgment, the High Court acquitted Shah of all charges observing that the prosecution's failure to establish the essential elements of the offense rendered the conviction unsustainable.

Case Title: Mohammad Subhan Shah Vs State Of J&K

Citation: 2024 LiveLaw (JKL) 346

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