TaxTMI 
TaxTMI 
2009 (2) TMI 888
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....riod of six months for the offence punishable under Section 13(1) read with Section 13(2) of the said Act. He was also sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 7 of the said Act. The substantive sentences were directed to run concurrently. 3. The appellant preferred an appeal to the Kerala High Court at Ernakulam, which dismissed the appeal by its judgment dated 28th November, 2007. However, the Appellate Court reduced the substantive sentence to that of one year only. The High Court acquitted the first accused of all the charges against which State preferred no appeal. This appeal is brought, by special leave against the judgment of the High Court. 4. The prosecution case is that while accused No. 1 working as the Inspector of Central Excise, Air Cargo Complex, Trivandrum, demanded an amount of Rs. 1,500/- as gratification from one Dayanandhan-PW10 and Prakash Kumar-PW2, who were the Senior Assistant and Manager respectively of M/s. Interfreight Services Pvt. Ltd., Trivandrum as a motive or reward for giving clearance for a wet grinder booked by one P. S. Shine to be sent to Dubai. 5. The appellant was also working ....
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....e did not support the prosecution story and was declared hostile. It was to him that the Accused No. 1 had allegedly made a demand of gratification on the morning of 1.10.99 and it was in his presence Accused No. 1 repeated the demand when he went along with PW-2 in the evening of 1.10.99 to the Air Cargo office. This is the version given by PW-2. But PW-10 does not support this story. PW-10 in his evidence stated that on 1.10.99 Accused No. 1 in the morning hours suggested certain corrections in the documents as regards the valuation and description of the item that was to be sent to Dubai. When PW-10 went back to office and told PW-2, PW-2 said that no correction need be made. Thereafter both of them visited Air Cargo Complex. It is in the evidence of PW-10 that he alone went inside the room to meet Accused No. 1 and told him that no corrections possibly could be made as PW-2 was not interested in making the suggested corrections. But Accused No. 1 insisted for carrying out corrections if the item was to be cleared for its despatch to Dubai. Then PW-10 requested the Accused No. 1 to meet PW-2 but Accused No. 1 retorted saying that whoever he may be, he will not meet him. 10. B....
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....cation by the appellant. There is no reason to disbelieve the evidence of PW-11; e) Exhibit P-9 post trap mahazar does not record the factum of any demand of gratification by the appellant. 13. The evidence on record suggests that PW10 had given money to the appellant stating that it was a loan repayable by PW2 to accused No. 1. The appellant was lulled into that belief based on which he received the amount from PW-10. 14. The fact remains that the prosecution established through evidence of PW-12 and PW-13 and Exhibit P9-post trap mahazar that MO IV series tainted currency notes were recovered from the pocket of the appellant. A question then arises for consideration is that whether the recovery of the tainted money itself is sufficient to convict the appellant under Section 7 of the said Act? 15. The crucial question would be whether the appellant had demanded any amount as gratification to show any official favour and whether the said amount was paid by PW-10 and received by the appellant as consideration for showing such official favour. The only evidence available in this regard is that of PW-10 who did not support the case of the prosecution. The appellant a....
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.... or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in Sub-sections (1) (2), the court may decline to draw the presumption referred to in either of the said Sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn. 18. A three-Judge Bench in M. Narsinga Rao v. State of A.P. 2001CriLJ515 while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: ...we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Ma....