Comparing Testimony With Previous Statement Without Confronting Witness U/S 145 Evidence Act Not Permissible: Kerala High Court
The Court held that presumption of illegal gratification stands sustained where foundational facts are duly corroborated under Prevention of Corruption Act, 1988.
Justice A. Badharudeen, Kerala High Court
The Kerala High Court has held that a trial court cannot compare a witness's testimony with a previous statement on its own to disbelieve a version regarding the demand and acceptance of a bribe without the defense confronting the witness with that statement in accordance with Section 145 of the Evidence Act.
Noting that such a procedure is not permissible in law, the Court said that procedural anomalies arising from an un-appealed acquittal of a co-accused do not automatically vitiate the prosecution's case against the primary accused when the core components of the offense are otherwise established.
Justice A. Badharudeen observed, “…Thus it is well discernible that without confronting PW1 with his previous statement in accordance with Section 145 of the Evidence Act, the Special Court compared the statements on its own and found certain discrepancies to disbelieve his version regarding the demand and acceptance of the bribe by Accused No. 2, the RTO. Consequently, Accused No. 2 was acquitted. The said procedure is not permissible in law. It is unfortunate to note that the prosecution did not prefer any appeal challenging acquittal of accused No.2”.
“…The mode of proof of demand and acceptance is either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law”, the Bench further said.
Advocate Mahesh V. Ramakrishnan appeared for the appellant and Rekha S., Senior Public Prosecutor appeared for the respondent.
The brief facts of the were that a complaint filed by a bus operator alleging that a bribe of ₹2,500 was demanded by the accused public servants to clear an application for fixing bus timings. A trap operation was arranged by the Vigilance and Anti-Corruption Bureau, where the primary accused was caught red-handed accepting a balance amount of ₹2,000, which was corroborated by a positive phenolphthalein test.
The Court of Enquiry Commissioner & Special Judge, Thalassery, convicted the first accused under Sections 7 and 13(1)(d) read with 13(2) of the PC Act while acquitting the co-accused, which led the convicted appellant to approach the High Court.
The Court noted that the testimony of the complainant, duly corroborated by the decoy witness and the Investigating Officer, fully established the ingredients of the offences. Further that the trial judge incorrectly scrutinized discrepancies on its own to acquit the co-accused without proper statutory confrontation under Section 145, but concluded that this error did not dismantle the primary accused's conviction since the foundational facts remained proven.
“Thus the legal position as regards to the essentials under Sections 7 and 13(1)(d)(i) and (ii) of the P.C Act, 1988 is extracted above. Regarding the mode of proof of demand of bribe, if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands…”, the Bench said.
Accordingly, the Court allowed the appeal in part, confirming the substantive conviction but modifying the sentence to the statutory minimum of one year of rigorous imprisonment with a fine of ₹10,000.
Cause Title: E.K. Narayanan v. State of Kerala (Neutral Citation: 2026:KER:41947)
Appearances:
Appellant: Mahesh V. Ramakrishnan, Chitra Johnson, Praveen K.S., and Alphin Varghese, Advocates.
Respondent: Rajesh A., Special Public Prosecutor and Rekha S., Senior Public Prosecutor.