IMPORTANT POINT
In a bribery case presence of complainant is necessary.

JUDGMENT

Ganguly, J. —

Heard learned counsel for the parties.

2. This is an appeal against the judgment and order of acquittal dated 19th January, 2005 rendered by the High Court. The respondent facing a trial, was convicted under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 by the Special Judge, Thiruvananthapuram, in Criminal Case No. 9 of 1996 and the respondent was sentenced to undergo rigorous imprisonment for 20 months and pay a fine of Rs. 2500/- under the former charge and rigorous imprisonment for two years and a fine of Rs. 2500/- under the second charge. Default stipulations were also there.

3. The facts relating to that case have been summed up in the judgment of the High Court and we are not repeating the same here once again.

4. In passing the order of acquittal, the High Court examined and analysed in detail the evidence of the case. The High Court found that the complainant CW 1 was not examined and the only explanation given was that he was not available in the country but no details were given as to where the complainant was. The defence of the respondent in this case has also been noted by the High Court in some detail.

5. The prosecution case is that the demand of illegal gratification of Rs. 5000/- was made by the respondent from CW 1 on 19.10.1994 for the purpose of giving pass marks to all the students who appeared in the practical examination of pharmaceutical-II in D-Pharma final examination in the year 1994. It is an admitted case that the respondent alone cannot give such marks. In view of the examination system prevailing such marks have to be approved by others. The respondent alone, therefore, is admittedly not in a position to allot higher marks. Apart from that, it is the case of the respondent that when CW 1 met him in a hotel room, the respondent shouted that some currency notes had been thrust into his pocket by CW 1. Such shouts of the respondent were heard by PW 1 and PW 2. The evidence of PW 1 and PW 2 were recorded by the Trial Court. The evidence of PW 1 and PW 2 could not be, in any way, shaken by manner of cross-examination. PW 3 has also given evidence of the previous animosity between the college authorities and the respondent who had an occasion to file reports with the college authorities on the basis of some inspection.

6. In the background of these facts, especially the non-examination of CW 1, was found very crucial by the High Court. The High Court has referred to the decision of this Court in Panalal Damodar Rathi Vs. State of Maharashtra1 1979(4) SCC 526 wherein a Three-Judge Bench of this Court held that when there was no corroboration of testimony of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on.

7. In the aforesaid circumstances, the Three-Judge Bench in Pannalal Damodar Rathi case(supra) held that there is grave suspicion about the appellant’s complicity and the case has not been proved beyond reasonable doubt. (see para 11)

8. This Court finds that the appreciation of the ratio in Panalal Damodar Rathi case(supra) by the High Court was correctly made in the facts and circumstances of the case.

9. Apart from that, Mr. P.P. Rao, learned counsel for the respondent has drawn attention of this Court to some other pronouncements of this Court on the relevant question.

10. In C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala reported in2 2009(3)SCC 779, this Court while dealing with the case under the Prevention of Corruption Act 1988, by referring to its previous decision in the case of Suraj Mal Vs. State (Delhi Admn.) reported in3 1979(4) SCC 725 held that mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself c