Bombay High Court
Ramesh Laxmandas Taneja vs The Senior Insepctor Of Police And Anr on 26 August, 2024
2024:BHC-AS:34514
NeetaSawant CRI.APLN-856-2016-JR-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 865 OF 2016
Ramesh Laxmandas Taneja } ...Applicant
: Versus :
1. The Senior Inspector of Police
(ACB, BMU), Worli, Mumbai
2. The State of Maharashtra } ...Respondents
________________
Mr. Rizwan Merchant with Ms. Ruchika Ghag, Ms. Shama Bhote &
Mr. Sagar Shete, for the Applicant.
Ms. Shilpa G. Talhar, APP for State-Respondent Nos.1 and 2.
Smt. Sarita Bhosale, ACP, ACB present.
_________________
CORAM : SANDEEP V. MARNE, J.
Judgment Resd. on : 19 August 2024.
Judgment Pron. On : 26 August 2024.
JUDGMENT
1) By this application, the Applicant challenges the order dated 15 April 2016 passed by the Special Judge rejecting the application at Exhibit-3 seeking discharge of Applicant in ACB Special Case No.30/2015 for the offence punishable under Section 8 of the Prevention of Corruption Act, 1988.
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2) Crime No.40/2014 came to be registered against the Applicant on the basis of complaint filed by the Complainant-Manish Ranshur for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (P.C. Act). It was alleged in the complaint that Applicant demanded illegal gratification of Rs. 1,56,000/- from the Complainant for sanctioning the bill for balance payment towards contractual services rendered by Complainant's Company-Career Designers Solutions Pvt. Ltd. in pursuance of Agreement dated 24 December 2012. According to Complainant, the Government had allotted the work of training and recruitment of 'Below Poverty Line' (BPL) unemployed youths in the field of security guards and for performance of the said work, M/s. Topsgroup International Security Academy Private Limited (TISA) executed Agreement dated 24 December 2012 with Complainant's Company, Career Designers Solutions Pvt. Ltd. (Career Designers). It is alleged in the complaint that towards performance of the contract, Career Designers incurred expenditure of Rs.10,98,000/- out of which the amount of Rs.7,05,000/- was paid by TISA and Rs.4,00,000/- was due and payable by TISA to Career Designers. The Complainant alleged that Applicant was working as Project Officer with TISA and demanded bribe of Rs.1,56,000/- from Complainant for sanctioning the bill for balance payment. Complainant was not willing to pay the bribe and accordingly filed a complaint in ACB, Worli, Mumbai on 26 May 2014. The chargesheet alleges that the complaint was verified in presence of two panch witnesses by recording telephonic conversation between the Complainant and the Applicant. However, since the conversation could not be heard properly, verification was again conducted by recording telephonic conversation on 28 May 2014 in which the Applicant agreed to receive the first 6installment of bribe of Rs.50,000/-. Accordingly, crime was registered against the ______________________________________________________________________ Page No.2 of 10 26 August 2024 ::: Uploaded on - 28/08/2024 ::: Downloaded on - 28/08/2024 21:48:22 ::: NeetaSawant CRI.APLN-856-2016-JR-FC Applicant labelling him as 'public servant' being Crime No.40/2014 under Section 7 of the P.C. Act.
3) It is alleged that on 2 June 2014, a trap was conducted, in which the Applicant was caught red handed while receiving the bribe amount of Rs.50,000/-. It is alleged that the currency notes were smeared with anthracene powder and upon examining the fingers of the Applicant under ultraviolet light, presence of powder was found on his body. Similarly, the bribe amount of Rs.50,000/- was found in the pocket of Applicant's trousers. Applicant was accordingly arrested on 2 June 2014. Upon being produced before the Special Judge on 3 June 2014, he was remanded to police custody and on 5 June 2014, he was released on bail. During the course of investigation, Applicant produced his resignation from the post of General Manager of TISA on 8 August 2013, which has been accepted in September 2013 and claimed that he did not have any relation with TISA after September 2013. The investigations however revealed that Applicant acted as a Consultant with TISA since 5 May 2014 and functioned as TISA's consultant on the date of commission of offence. The ACB therefore concluded that the Applicant was not working under the 'National Rural Livelihood Mission Scheme' (NRLM) or in the special scheme being 'Suvarnajayanti Gram Swayrojgar Yogna' (SGSY). Therefore, it was concluded that the Applicant did not fit into the definition of 'public servant' under Section 2(c) of the P.C. Act. Hence, it was decided to delete Sections 7, 13(1)(d) and 13(2) of the P.C. Act. Instead, chargesheet was filed on 9 February 2015 against Applicant under Section 8 of the P.C. Act. Applicant filed application at Exhibit-3 seeking his discharge in ACB Special Case No.30/2015. By the impugned order dated 15 April 2016, the learned Judge has proceeded ______________________________________________________________________ Page No.3 of 10 26 August 2024 ::: Uploaded on - 28/08/2024 ::: Downloaded on - 28/08/2024 21:48:22 ::: NeetaSawant CRI.APLN-856-2016-JR-FC to reject the application. Aggrieved by the order dated 15 April 2016, the Applicant has filed the present Criminal Application.
4) Mr. Merchant, the learned counsel appearing for Applicant would submit that since Applicant is not a public servant, prosecution under Section 8 of the P.C. Act is not maintainable. Inviting my attention to the chargesheet, Mr. Merchant would submit that Applicant is held to be not a public servant and therefore Sections 7, 13(1)(d) and 13(2) of the P.C. Act have been deleted. However, instead of closing the prosecution, the A.C.B. has erroneously applied provisions of Section 8 of the P.C. Act. He would submit that Section 8 of the P.C. Act also relates to bribing of public servant. That since Applicant is held to be not a public servant his prosecution under Section 8 is liable to be quashed and set aside. He would submit that the learned Special Judge has not applied his mind to this aspect and has erroneously concentrated on availability of material in the alleged trap conducted against Applicant. Mr. Merchant would therefore submit that the impugned order passed by the learned Special Judge deserves to be set aside and Applicant be discharged from the case.
5) Per-contra Ms. Talhar, the learned APP would oppose the application and support the order passed by the learned Special Judge. She would submit that as of now, there is a successful trap against Applicant in which, both demand and acceptance of illegal gratification is clearly established. That the Applicant was in a position to demand illegal gratification for clearance of complainant's balance bill. That the demand has been verified and recorded. That the Applicant has been caught red handed while accepting currency notes amounting to Rs.50,000/- during trap conducted on 2 June 2014. The bribe amount has been recovered from the body of the Applicant ______________________________________________________________________ Page No.4 of 10 26 August 2024 ::: Uploaded on - 28/08/2024 ::: Downloaded on - 28/08/2024 21:48:22 ::: NeetaSawant CRI.APLN-856-2016-JR-FC and presence of anthracene powder is also noticed in the ultraviolet light. She would therefore submit that no case is made out for discharge of the Applicant and that the learned Judge has correctly appreciated this position while dismissing the discharge application. She would pray for dismissal of the application.
6) Having considered the submissions canvassed by the learned counsel appearing for the parties, the short issue that arises for consideration is whether the Applicant can be prosecuted under the provisions of Section 8 of the P.C. Act. In the present case, chargesheet records a specific finding that the Applicant does not fit into the definition of 'public servant' under Section 2(c) of the P.C. Act. Thus, though the Petitioner was initially sought to be charged under an impression that he was a 'public servant', the ACB ultimately arrived at a conclusion that he is not a 'public servant' and therefore Sections 7, 13(1)(d) and 13(2) of the P.C. Act have been deleted. However, while dealing with the said sections, the ACB has sought to charge him under Section 8 of the Act. Section 8 of the Act deals with offences relating to bribing of public servant and provides thus :
8. Offence relating to bribing of a public servant.-
(1) Any person who gives or promises to give an undue advantage to another person or persons, with intention-
(i) to induce a public servant to perform improperly a public duty; or
(ii) to reward such public servant for the improper performance of public duty;
shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both :
Provided that the provisions of this section shall not apply where a person is compelled to give such undue advantage :
Provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency ______________________________________________________________________ Page No.5 of 10 26 August 2024 ::: Uploaded on - 28/08/2024 ::: Downloaded on - 28/08/2024 21:48:22 ::: NeetaSawant CRI.APLN-856-2016-JR-FC within a period of seven days from the date of giving such undue advantage :
Provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage :
Provided also that when the offence under this section has been committed by commercial organisation, such commercial organisation shall be punishable with fine.
Explanation.- It shall be immaterial whether the person to whom an undue advantage is given or promised to be given is the same person as the person who is to perform, or has performed, the public duty concerned, and, it shall also be immaterial whether such undue advantage is given or promised to be given by the person directly or through a third party.
(2) Nothing in sub-section (1) shall apply to a person, if that person, after informing a law enforcement authority or investigating agency, gives or promises to give any undue advantage to another person in order to assist such law enforcement authority or investigating agency in its investigation of the offence alleged against the latter.
7) Thus, under Section 8, person other than public servant can be punished if ingredients of the offences are made out. Therefore, for charging a person under Section 8, he/she need not be a public servant. Section 8 in fact applies to a person who gives or promises to give an undue advantage to another person with intention to induce a public servant or to reward such public servant. Therefore, merely because Applicant is not a public servant, the same would not mean that he cannot be accused of having committed an offence under Section 8 of the P.C. Act. The next question for consideration is whether the ingredients of Section 8 are made in the present case.
8) The offence under Section 8 of the P.C. Act is not made out unless there is an inducement or reward to a public servant for improper performance of public duty. Therefore, the presence of public ______________________________________________________________________ Page No.6 of 10 26 August 2024 ::: Uploaded on - 28/08/2024 ::: Downloaded on - 28/08/2024 21:48:22 ::: NeetaSawant CRI.APLN-856-2016-JR-FC servant and improper performance of duty are two essential ingredients of Section 8. In the present case, the entire transaction has allegedly taken place between the Complainant and the Applicant. The monies were allegedly due to Career Designers from TISA. The monies were not due or payable by any government or government agency to Career Designers. This is not a case where a public servant had withheld the amount due or payable to Career Designer and the illegal gratification was towards promise given to complainant that Applicant would ensure swift payment of the due amount by influencing any public servant.
9) There is no public servant involved in the entire prosecution story. Therefore, the essential ingredients of presence of public servant and improper performance of public duty is not present. Merely because TISA was provided the work of training and recruiting BPL unemployed youth as security guards and merely because TISA was receiving some amount from the Government for providing such training, it cannot be stated that Applicant, working as a Consultant with TISA at the relevant time, would himself become a public servant. Therefore, the Applicant is rightly held to be not a public servant in the chargesheet. Even TISA cannot be treated as a public servant in the present case, which was merely awarded the contract for imparting training to BPL unemployed youth. In the present case therefore, the essential ingredients of presence of a public servant or performance of any public duty is not involved. In my view, therefore since essential ingredient under Section 8 is missing, Applicant, who is not a public servant, cannot be accused of having committed an offence under Section 8 of the P.C. Act.
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10) The ACB has confused itself while dealing with the case. It first believed that since the flow of money involves a source through Centre and State Government, Applicant can be treated as a public servant for charging him under Sections 7, 13(1)(d) and 13(2) of the P.C. Act. It however realized its mistake later and accepted the position that Applicant cannot be treated as a public servant. The ACB however felt that since Section 8 applies to persons who are not public servants, prosecution against Applicant would be maintainable under Section 8 of the Act. However while entertaining such a belief, the persecuting agency completely lost sight of the fact that once Applicant is not treated as public servant, there is no other public servant left in the entire transaction. It is not prosecution's case that the Applicant demanded and accepted gratification under a promise of inducement to any public servant. Therefore charging Applicant under Section 8 of the PC Act is clearly erroneous.
11) Since the offence under Section 8 of the P.C. Act is alleged against the Applicant, it will have to be proved that the Applicant gave or promised to give an undue advantage to another person with an intention to induce or reward public servant for improper performance of public duty. Thus, if the Petitioner was to give to the Complainant or promised to give to him any amount for inducing a public servant, offence under Section 8 would have been made. In the present case, alleged acceptance of amount by the Applicant from the Complainant was not with any promise for giving any unfair advantage to the Complainant by inducing any public servant for improper performance of public duty. If the Applicant was to represent to the Complainant that payment of bribe amount to him would ensure faster release of any claim of the Complainant pending ______________________________________________________________________ Page No.8 of 10 26 August 2024 ::: Uploaded on - 28/08/2024 ::: Downloaded on - 28/08/2024 21:48:22 ::: NeetaSawant CRI.APLN-856-2016-JR-FC with any Government or its instrumentality, the Applicant could have been accused of commission of offence under Section 8 of the P.C. Act. In the present case, there is pure contractual arrangement between two private entities i.e. TISA and Career Designer. The alleged demand and acceptance of bribe amount was for releasing the amount arising out of performance of contract by the Complainant. It is not prosecution's case that some amount of the Complainant was stuck with any government agency and that the Applicant promised him of ensuring its faster or swifter release and for that purpose, demanded and accepted the bribe amount under that representation. Thus, in the entire case, there is neither any public servant involved nor there is any performance of public duty. This is the reason why the essential ingredients of Section 8 of the Act are not meted out in the present case.
12) Perusal of the impugned order of the learned Judge would indicate that though the point of offence under Section 8 of the P.C. Act not being made out against the Applicant was specifically argued, it appears that the learned Judge has completely glossed over this vital aspect and has erroneously concentrated at availability of sufficient material for prosecuting the Petitioner for demand and acceptance of illegal gratification. The learned Judge completely ignored the fact that offences under Section 7, 13(1)(d) and 13(2) have already been deleted while filing the chargesheet and what is alleged is only offence under Section 8 of the Act. The learned Judge therefore ought to have concentrated on the issue as to whether ingredients of the offence under Section 8 are made out in the present case or not. The impugned order of the learned Special Judge thus suffers from a palpable error and is liable to be set aside.
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13) After considering the entire conspectus of the case, I am of the view that the essential ingredients of Section 8 of the P.C. Act are not made out in the facts and circumstances of the present case.
14) Criminal Application accordingly succeeds. Order dated 15 April 2016 passed by the learned Special Judge is set aside. The application filed by the Applicant at Exhibit-3 for discharge is made absolute in terms of prayers made therein. The Applicant accordingly stands discharged from all the charges levelled against him in Special Case No.30/2015.
15) With the above directions, the Criminal Application is allowed and disposed of.
Digitally
[SANDEEP V. MARNE, J.]
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2024.08.28
19:22:30
+0530
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