Rajasthan High Court - Jodhpur
Dharmendra vs State on 25 May, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 674/2001
Dharmendra
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. H.S.S. Kharlia, Sr. Advocate
assisted by Mr. Rakesh Sinha and
Ms. Kinjal Purohit.
For Respondent(s) : Mr. S.K. Bhati, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved On: 11/05/2022 Pronounced On: 25/05/2022
1. This Criminal Appeal under Section 374 Cr.P.C. has been preferred against the judgment, dated 24.09.2001, passed by the Special Judge, Sessions Court (Prevention of Corruption Act), Jodhpur convicting the appellant in Sessions Case No. 13/1998 under Section 7 and 13 (1) (d), (2) of the Prevention of Corruption act with the following prayer:-
"It is, therefore, prayed that this Hon'ble Court will be pleased to send for the record of the lower court, peruse the same and after perusal, set aside the convictions/sentences acquit the appellant or pass any other orders that this Hon'ble Court deem fit and proper."
2. Brief facts of the case as placed before this Court by the learned counsel for the appellant are that on 03.05.1997, the complainant Karnaram approached the appellant, Dr. Dharmendra, (Downloaded on 25/05/2022 at 09:09:49 PM) (2 of 30) [CRLA-674/2001] because his brother, Jetharam had sustained an injury in the eye and sought a medical report stating the same. And that, it is alleged that the appellant-doctor, told him that he would provide him with a medical report stating therein that Jetha Ram had suffered a grievous injury, and that he demanded a bribe for the same. And that on 04.05.1997, the complainant Karnaram lodged a report at the Anti-Corruption Bureau, Jodhpur averting therein that the appellant-doctor made a demand of a bribe of Rs. 2,500/-
And that, on 09.05.1997, trap proceedings were arranged at the house of the appellant-doctor, where he allegedly had told the complainant to meet him him with the bribe amount, and that the complainant had arrived with the bribe amount upon which the A.C.B. officials had smeared phenolphtalein powder, and that the same was kept on the living room table of the appellant while the appellant went inside to drink water. And that the complainant apparently took out Rs. 200/- from the total amount of Rs.
2,500/- and left the remainder of the amount, i.e. Rs. 2,300/- on the table before leaving the appellant-doctor's residence. After which, the A.C.B. apprehended the appellant-doctor, and the currency notes so recovered from the doctor's residence were found to be the same that the complainant had allegedly given him, and that furthermore, the hands of the appellant-doctor was found to be pinkish in colour. And that, he was arrested and charge sheeted, and subsequently convicted by the learned Court below.
3. Learned counsel for the appellant submits that there was no work pending with the appellant-doctor on the alleged date of the demand of the illegal gratification i.e. 03.05.1997 neither on the (Downloaded on 25/05/2022 at 09:09:49 PM) (3 of 30) [CRLA-674/2001] day the trap proceedings were set i.e. 09.05.1997. And that, as is evident from the letter at Ex. 12, on 22.04.1997, the S.H.O. sent the said letter to the medical officer of injured Jetha Ram in which due to injury, there was swelling and bruising / scratches around his left eye, and which was received by the appellant-doctor on 21.04.1997 on the basis of which he prepared the injury report, at Ex. 16, on 21.04.1997 itself. And that, the appellant dispatched the same on 27.04.1997 vide dispatch Register Entry, at Ex. 18, and was received at the Police Station on the same day, as is reflected from the said exhibit placed on the record.
3.1 Learned counsel also submits that the same was received by the S.H.O. Dangia Bass and shown to the complainant / patient Jetharam's brother Karna Ram on 30.04.1997, and that therefore, there was also no possibility of the appellant-doctor having issued a second report.
3.2 Learned counsel further submits that the same was corroborated by P.W. 8, Dr. Kothari, a long time associate of the appellant-doctor, whose testimony from his examination in chief reveals that on 27.05.1997, while he was holding the post of Professor Medical Forensics, he recognized the handwriting and signature of the appellant-doctor on the report from having worked in close proximity with him.
3.3 Learned counsel also submits that Dr. Kothari disproved the authenticity of the report placed before the S.H.O. by the injured, which is at Ex. 19, and that it is in fact a fabricated and false report.
3.4 Learned counsel further submits that the P.W.-2, the complainant himself, in his testimony admits that he made the (Downloaded on 25/05/2022 at 09:09:49 PM) (4 of 30) [CRLA-674/2001] request to the S.P. to constitute a medical board on 01.05.1997, and therefore, no question of issuance of a second medical report can arise.
4. Learned counsel further submits that, ith respect to the alleged demand of the bribe / illegal gratification by the complainant, in his testimony, he has made contradictory statements as to when the alleged demand for the illegal gratification was made by the appellant-doctor to him, and that though it is the case of the prosecution that the tape recording reveals that on date on which the trap proceedings were set, was the same day on which the alleged demand for the illegal gratification was made by the appellant-doctor, and though the same was supposedly deposited in the Maalkhana, the tape recording has not been placed on the record before the learned Court below. And neither is there any independent witness to corroborate as to when the alleged demand in question was made by the appellant-doctor. And that, when the complainant was confronted with this contradiction in his cross examination, he was unable to explain or refute the same.
4.1 Learned counsel also submits that this version as put forth by the complainant, has not even been supported by his brother, Jetha Ram, who was the patient for whom the medical report in question was generated at the first instance.
5. Learned counsel further submits that although it is alleged that there is a recovery of an illegal gratification from the residence of the appellant-doctor, that the appellant-doctor was in fact unaware of the purpose for which the complainant had left the money and that while the complainant left the alleged bribe on the (Downloaded on 25/05/2022 at 09:09:49 PM) (5 of 30) [CRLA-674/2001] table in his living room at his residence, he had gone inside his house and was not in the living room.
5.1 Learned counsel, in support of the above made submission, drew the attention of this Court to the testimonies rendered by the independent witnesses, P.W. 5 Ratan Lal P.W. 7 Shanti Lal.
5.2 Learned counsel also drew the attention of this Court to the testimony rendered by the D.S.P. Shri Parbat Singh, who stated therein that the transaction between the appellant-doctor and the complainant were not visible to him, as the raid party members were stationed afar.
6. Learned counsel further submits that, with regard to the right hand of he appellant-doctor revealing a pinkish hue, was due to his handling of some medicines, and that there are contradictions with respect to the solution and apparatus in which the hands of the complainant and the appellant-doctor was washed, that while the prosecution avers that they were washed in glasses, the complainant's testimony stated that the apparatus used was some tray type of pot.
6.1 Learned counsel also submits that any such benefit of doubt which arises, must be considered in the favour of the accused, especially when the testimony of P.W. 10., Sundar Lal, the in-
charge of the Maalkhana, stated that all the articles were deposited by the D.S.P. Shri Parbat Singh, at about 08:30 p.m. 09.05.1997 while in fact, the D.S.P. returned after the completion of the trap proceedings only at about 09:55 p.m. on 09.05.1997.
Moreover, the same is corroborated by the F.I.R., at Ex. 21, which states that the samples so collected with regard to the pinkish hue on the hands of the complainant and the appellant-doctor were (Downloaded on 25/05/2022 at 09:09:49 PM) (6 of 30) [CRLA-674/2001] deposited at 09:5 p.m. on 09.05.1997. the And that, this only further calls into question the version of the prosecution.
7. Learned counsel also submits that, in light of the above made submissions, the explanation given by the accused is more probable, given the facts and circumstances of the case, than the version put forth by the prosecution.. Learned counsel for the appellant placed reliance on the following judgments:-
7.1 Mahavir Singh Vs. State of Madhya Pradesh (2016) 10 SCC 220 "Here in the instant case, no doubt, an innocent man has lost his life at the hands of another man, and looking at the way in which the investigation was handled, we are sure to observe that it was carried out in a lackluster manner. The approach of the Investigating Officer in recording the statements of witnesses, collecting the evidence and preparation of site map has remained unmindful. The Investigating Officer, dealing with a murder case, is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with the police manual and a default or breach of duty may prove fatal to the prosecution's case. We may hasten to add that in the present case the investigation was carried out with unconcerned and uninspiring performance. There was no firm and sincere effort with the needed zeal and spirit to bring home the guilt of the accused. We feel that there are no compelling and substantial reasons for the High Court to interfere with the order of acquittal when the prosecution has miserably failed to establish the guilt of the accused. Added to this, the accused has already undergone nine years' of imprisonment and we feel that it is a fit case inviting interference by this Court.
Resultantly, the appeal is allowed and the judgment of conviction and order of sentence passed by the High Court is set aside. Consequently, the Appellant shall be set at liberty forthwith if not required in any other case. "
(Downloaded on 25/05/2022 at 09:09:49 PM)(7 of 30) [CRLA-674/2001] 7.2 Banshi Lal Baghela Vs. State S.B. Criminal Appeal No. 664/2000 (Raj. HC)
"The provisions of law laid down in aforementioned sections of the Act of 1988, as reproduced above, supplemented by the decisions rendered by the Hon'ble Apex Court in the cases of R.P.S. Yadav (supra), B. Jayaraj (supra), P. Satyanarayana Murthy (supra) and reaffirmed in N. Sunkanna (supra) Jhabar Singh(supra) have made it amply clear that the demand of illegal gratification is sine qua non to constitute the offence under Section 7. And that, in the absence of such a demand, a presumption, under Section 20 of the Act of 1988, cannot be made against the accused. And that, a mere possession and recovery of an amount of money is not sufficient ground to proceed against the accused unless it has been proved beyond doubt that the accused voluntarily accepted the money knowing it to be a bribe.
Furthermore, this Court also finds that all the witnesses have turned hostile, and therefore the superstructure upon which the presumption has been drawn against the accused by the learned court below is without any sufficient foundation; since it has neither been proved that a demand of illegal gratification was made by the accused herein, nor does there remain any witness whose testimony speaks to the culpability of the accused.
This Court, in light of the above made observations, finds that the conviction of the accused appellant cannot be sustained and, therefore, the impugned judgment deserves to be quashed and set aside."
7.3 Mukhtiar Singh (since deceased) through his L.R. Vs. State of Punjab (2017) 8 SCC 136 " The indispensability of the proof of demand and illegal gratification in establishing a charge Under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair v. State of Kerala (2009) 6 SCC 587, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the (Downloaded on 25/05/2022 at 09:09:49 PM) (8 of 30) [CRLA-674/2001] illegal gratification and till that is accomplished, the Accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala v. C.P. Rao (2011) 6 SCC 450 that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the Accused and in absence of any evidence to prove payment of bribe or to show that the Accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
Inspector Satpal (PW2), who was the shadow witness, after reiterating the statement of the complainant with regard to the pre-trap proceedings, stated that he along with the complainant on that day met the original Accused and followed to his quarter in the building of the police station whereafter the original Accused enquired of the complainant as to whether he had brought the money, on which, the latter handed over three currency notes denomination of Rs. 500 and five currency notes of Rs. 100 each to him and that he kept the same in a card board box lying near him. The witness stated that he then gave a signal to the other members of the raiding party including the D.S.P. (Vigilance) who entered the room and undertook the steps pertaining to recovery and seizure as narrated by the complainant.
It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs. 3,000/- which had been paid or of Rs. 2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original Accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs. 3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs. 3,000/- as well as the demand of Rs. 2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive (Downloaded on 25/05/2022 at 09:09:49 PM) (9 of 30) [CRLA-674/2001] conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original Accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence Under Section 7 or 13 of the Act."
7.4 P. Satyanarayana Murthy Vs. The Dist. Inspector of Police and Ors. (2015) 10 SCC 152 "...According to the prosecution, the complainant and PW1-S. Udaya Bhaskar did meet the Appellant in Room No. 68, Meenakshi Lodge, Kurnool and on reaching the room, the complainant gave one renewal application along with the challan to the Appellant who enquired as to whether he (complainant) had brought the amount which he had directed him to bring on the previous day. On this, the complainant took out Rs. 500/- from the pocket of his shirt on which the phenolphthalein powder had been applied and handed over the same to the Appellant. The prosecution version is that the Appellant, accordingly, kept the amount in the pocket of his shirt and it was then on signal being received by the trap team, he was intercepted and apprehended with the money accepted by him.
This Court in A. Subair v. State of Kerala (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1) (d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
In State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-Ã -vis the same offences, held that mere recovery by itself, would not (Downloaded on 25/05/2022 at 09:09:49 PM) (10 of 30) [CRLA-674/2001] prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence Under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence Under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence Under Section 7 and not to those Under Section 13(1)(d) (i) &
(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption Under Section 20 of the Act would also not arise.
The proof of demand of illegal gratification, thus, is the gravamen of the offence Under Sections 7 and 13(1)(d)(i) &
(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence Under Sections 7 or 13 of the Act would not entail his conviction thereunder.
(Downloaded on 25/05/2022 at 09:09:49 PM)(11 of 30) [CRLA-674/2001] In our estimate, to hold on the basis of the evidence on record that the culpability of the Appellant Under Sections 7 and 13(1)(d)(i) & (ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the Appellant of the charge Under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) &
(ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification.
In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the Appellant Under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order of the High Court is hereby set-aside. The Appellant is on bail. His bail bond stands discharged. Original record be sent back immediately.
7.5 Satvir Singh Vs. State of Delhi (2014) 13 SCC 143 "The other legal contention urged by the learned senior Counsel is that mere recovery of the alleged tainted money without there being any demand and acceptance by the Appellant from the complainant does not prove the guilt of the Appellant. In support of his aforesaid legal submission, he has placed reliance upon the following decisions of this Court: (1) (Downloaded on 25/05/2022 at 09:09:49 PM) (12 of 30) [CRLA-674/2001] K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721 (2) Subash Parbat Sonvane v. State of Gujarat (2002) 5 SCC 86 and (3) Mukut Bihari and Anr. v. State of Rajasthan (2012) 11 SCC 642. In Mukut Bihari and Anr., this Court has held thus:
11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised Under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution.
The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person.
This Court, in K.S. Panduranga's case (supra) has held that the demand and acceptance of the amount of illegal gratification by he accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the above-said decision is extracted hereunder: 39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that (Downloaded on 25/05/2022 at 09:09:49 PM) (13 of 30) [CRLA-674/2001] there is a statutory presumption Under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated Under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation Under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted.
(Emphasis supplied) The learned senior Counsel for the Appellant has also placed reliance upon the case of Banarsi Das referred to supra wherein it was held that: 24. I n M.K. Harshan v. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: 8... It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. The above-said paragraph from the above mentioned case would go to show that the divergent findings recorded by the High Court on the factum of demand and acceptance of illegal gratification by the Appellant is not proved in this case. In the said case this Court in unequivocal terms has held that mere demand by (Downloaded on 25/05/2022 at 09:09:49 PM) (14 of 30) [CRLA-674/2001] itself is not sufficient to establish the offence under the Act. The other aspect, namely acceptance is also very important. There must be clinching evidence with the tacit approval of the accused that money was put by PW-2 on the steel cot as stated by him in his evidence as illegal gratification. In the case in hand, as per the evidence of PW-2 and PW-3, the illegal gratification was in a black rexine bag with a broken zip which was put on a steel cot. As the contents of the bag were not within the knowledge of the accused, therefore, the relevant aspect of the case that the Appellant has accepted the illegal gratification as required Under Section 7 of the Act is not proved by the prosecution by adducing cogent evidence in this regard.
The explanation which is sought to be elicited from the Appellant by the prosecution to discard the said positive evidence in favour of the Appellant would further support his plea that he has not demanded gratification from the complainant, PW-2. We are not at all impressed with the plea of the prosecution that the said letter was written by PW-2 under pressure as stated by him in his cross examination in the year 1993. If it is true that the letter was written by PW-2 under pressure, then he should have lodged the complaint in this regard with the jurisdictional police or to the higher officers at that relevant point of time or to the Trial Court when the case was pending. Therefore, the said portion of the evidence of PW-2 cannot be accepted by us as the same is untrustworthy. The black rexine bag containing the illegal gratification which was kept on the steel cot at the residence of the accused on 08.07.1989 was not recovered from the person of the accused. Therefore, neither acceptance nor recovery of illegal gratification from the Appellant is proved. Further, the reliance placed upon the relevant paragraphs extracted above from the judgments of this Court by the learned senior Counsel on behalf of the Appellant applies aptly to the factual situation. Therefore, the demand, acceptance and recovery of the illegal gratification alleged to have been paid to the Appellant is not proved by the prosecution. Thus, the Trial Court on overall appreciation of the oral and documentary evidence on record has come to the right conclusion and recorded its findings of fact and held that the (Downloaded on 25/05/2022 at 09:09:49 PM) (15 of 30) [CRLA-674/2001] demand, acceptance and recovery of gratification from the Appellant is not proved, therefore there is no presumption Under Section 20 of the Act. The learned trial judge in his judgment has rightly held that presumption of innocence is in favour of the Appellant and he was acquitted on merits. The aforesaid findings and reasons recorded by the High Court are supported with the statements of law laid down by this Court in C.M. Girish Babu (supra) upon which the learned senior Counsel on behalf of the Appellant has rightly placed reliance. The relevant paragraph is extracted below: 18. In Suraj Mal v. State (Delhi Admn.) this Court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
After careful observation of the above-mentioned facts and evidence on record and on careful examination of the aforesaid rival legal contentions urged on behalf of the parties, with reference to the extracted portion of the evidence of PW- 2, PW-3 and PW9, we are of the considered view that the prosecution has failed to prove the demand and acceptance of illegal gratification by the Appellant from the complainant PW- 2, upon whose evidence much reliance has been placed by the learned Counsel for the Respondent.
7.6 Krishan Chander Vs. State of Delhi (2016) 3 SCC 108 "It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable Under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior Counsel on behalf of the Appellant. The relevant paragraph 7 from Dipak B. Jayaraj (supra) reads thus:
"7. Insofar as the offence Under Section 7 is concerned, it is a settled position in law that demand of illegal gratification (Downloaded on 25/05/2022 at 09:09:49 PM) (16 of 30) [CRLA-674/2001] is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence Under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. and C.M. Girish Babu v. CBI"
(Emphasis supplied) In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under:
"21. In State of Kerala and Anr. v. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence Under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence Under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence Under Section 7 and not to those Under Section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of (Downloaded on 25/05/2022 at 09:09:49 PM) (17 of 30) [CRLA-674/2001] demand, such legal presumption Under Section 20 of the Act would also not arise.
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence Under Sections 7 and 13(1)(d)(i) &
(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence Under Sections 7 or 13 of the Act would not entail his conviction thereunder."
(Emphasis supplied) Further, in the case of Satvir Singh Vs. State of Delhi (2014) 13 SCC 143, this Court has held thus:
"34. This Court, in K.S. Panduranga has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the abovesaid decision is extracted hereunder: (SCC pp. 740- 41, para 39)
39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption Under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated Under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation Under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted."(Downloaded on 25/05/2022 at 09:09:49 PM)
(18 of 30) [CRLA-674/2001]
(Emphasis supplied)
The learned Senior Counsel for the Appellant has also placed reliance upon the case of Banarsi Dass referred to supra wherein it was held that: (SCC pp. 456-57, para 24)
24. In M.K. Harshan Vs. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: (SCC pp. 723-24, para 8)
8. ... It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification....
(Emphasis supplied) In view of the aforesaid reasons, the approach of both the trial court and the High Court in the case is erroneous as both the courts have relied upon the evidence of the prosecution on the aspect of demand of illegal gratification from the complainant-Jai Bhagwan (PW-2) by the Appellant though there is no substantive evidence in this regard and the Appellant was erroneously convicted for the charges framed against him. The prosecution has failed to prove the factum of demand of bribe money made by the Appellant from the complainant-Jai Bhagwan (PW-2), which is the sine qua non for convicting him for the offences punishable Under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. Thus, the impugned judgment and order of the High Court is not only erroneous but also suffers from error in law and therefore, liable to be set aside. "(Downloaded on 25/05/2022 at 09:09:49 PM)
(19 of 30) [CRLA-674/2001]
8. Heard learned counsel for both parties and, perused the record of the case and the judgments cited at the Bar.
10. This Court thinks it necessary and fit to keep into consideration the observations made by the Hon'ble Supreme Court, with regard to the gravity and seriousness of offences under the Prevention of Corruption Act, 1988 and the catastrophic effect that such offences, if left unchecked, have on a democratic society, in State of M.P. & Ors. Vs. Ram Singh (2000) 5 SCC
88. Relevant portion of the said judgment is reproduced as under:-
"Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignancies the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society."
11. Before delving into the case at hand, the relevant Sections of the Prevention of Corruption Act, 1988 (as it stood then) applicable in the present case, are reproduced below for the sake of brevity:-
(Downloaded on 25/05/2022 at 09:09:49 PM)(20 of 30) [CRLA-674/2001] "7. Public servant taking gratification other than legal remuneration in respect of an official Act Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than 1[three years] but which may extend to 2[seven years] and shall also be liable to fine.
Explanation.--
(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will when serve them, be may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification." The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration." The words "legal remuneration"
are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.(Downloaded on 25/05/2022 at 09:09:49 PM)
(21 of 30) [CRLA-674/2001]
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section"
13. Criminal, misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct, --
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person for himself or for any other person any gratification other than legal remuneration as active or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public, interest; or (Downloaded on 25/05/2022 at 09:09:49 PM) (22 of 30) [CRLA-674/2001]
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[four years] but which may extend to 2[ten years] and shall also be liable to fine."
20. Presumption where public servant accepts gratification other than legal remuneration (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) or sub- section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain 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.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given 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 (Downloaded on 25/05/2022 at 09:09:49 PM) (23 of 30) [CRLA-674/2001] 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) and (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."
12. This Court observes that, for the offences under Sections 7 and 13 sub-section (1) (d) read with Section 13 sub-section (2) of the Prevention of Corruption Act, 1988 to be made out against the accused, it is necessary that; the twin ingredients of a demand of illegal gratification / bribe of remuneration; or any valuable thing, either without consideration or a consideration which is known to be inadequate by the accused; or for a pecuniary advantage, for himself or another, made by the accused or by another on his behalf, coupled with a recovery of the said illegal gratification from the accused, or from someone who has accepted the same on his behalf; or if he has dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant, must be proven by the prosecution as per the facts and circumstances of each case.
12.1 It is a settled position of law that any allegation under the aforementioned sections against an accused, if sans a demand for any kind of illegal gratification, (hereinafter referred to as 'Demand') or a recovery of the same (hereinafter referred to as 'Recovery'), as discussed above, would result in a failure of the prosecution to prove its case, beyond all reasonable doubt.
(Downloaded on 25/05/2022 at 09:09:49 PM)(24 of 30) [CRLA-674/2001]
13. However, in case a Demand and a Recovery have been proven before the competent Court by placing the evidence on record, which may include, but not be limited to; audio and/or video recording of trap proceedings, transcript of telephonic conversation between complainant and accused, chemical testing of the currency notes and the clothes / person of the accused, or his conduit, by phenolphthalein powder or anthracene powder, testimonies of complainant and/or investigating officer/shadow witness and/or trap/panch witness and/or other witnesses, and whether any of the witnesses have turned hostile, the accused may rebut the same, to the satisfaction of the competent Court and averting to the facts of the case, by providing a justification / explanation to such demand.
14. This Court further observes, as is clear from the legislative intention crystallised in the provision of law under Section 20 of the Act of 1988, that in case a demand for illegal gratification has been proved, then it is rebuttable at the instance of the accused if he is able to justify / explain the purpose for the said demand so made, to the satisfaction of the Court.
15. The same was reinforced by the judgment of the Hon'ble Apex Court in B. Noha Vs. State of Kerala and Ors. (2006) 12 SCC 277, wherein the Hon'ble Apex Court while referencing the ratio decidendi laid down in the earlier decision of State of A.P. v. Kommaraju Gopala Krishna Murthy (2000) 9 SCC 752 observed the following:-
"...that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification."(Downloaded on 25/05/2022 at 09:09:49 PM)
(25 of 30) [CRLA-674/2001] 15.1 Therefore, when it appears that an amount, which may appear to be a Demand made by an accused, has been passed to the accused, then a presumption under Section 20 of the Act of 1988 is made against the accused, and the burden of proof of rebutting the same then lies on the shoulders of the accused.
15.2 Furthermore, in Guruviah & Ors. Vs. The State (2019) 8 SCC 396 wherein the Hon'ble Apex Court referenced the ratio decidendi laid down earlier in T. Shankar Prasad v. State of A.P. (2004) 3 SCC 753 and also took into consideration, that although a justification / explanation was given by the accused, it was not offered immediately after the recovery of money but at a belated stage, which called into question the authenticity of the same.
Relevant portion of T. Shankar (supra) is reproduced below:-
"The involvement of both of the them a well-planned and cleverly managed device to systematically collect money stood sufficiently established on the evidence let in by the prosecution. Further, A-2 did not offer his explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by this Court in A. Abdul Kaffar v. State of Kerala."
16. This Court is also conscious of the following judgments rendered by the Hon'ble Apex Court:-
16.1 V. Sejappa Vs. State (2016) 12 SCC 150 wherein the Court referenced the judgment rendered in State through Inspector of Police, A.P. v. K. Narasimhachary 2005) 8 SCC 364, wherein the following observation was made:-(Downloaded on 25/05/2022 at 09:09:49 PM)
(26 of 30) [CRLA-674/2001] "reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court."
16.2 State of Gujarat Vs. Bhalchandra Laxmishankar Dave (2021) 2 SCC 735 wherein the Hon'ble Apex Court, while dealing with a case wherein the High Court had set aside the order of conviction passed by the Court below and acquitted the accused therein, made the following observations:-
"We have gone through the detailed judgment and order of conviction passed by the Learned Trial Court and also the evidence on record laid down by the prosecution as well as the defence. We have perused the impugned judgment and order of acquittal passed by the High Court to ascertain whether the High Court has conformed to the principles while exercising in the criminal appeal against the judgment and order of conviction. We find that the High Court has not strictly proceeded in the manner in which High Court ought to have while dealing with the appeal against the order of conviction. On perusal of the impugned judgment and order of acquittal passed by the High Court, we find that, as such, there is no re-appreciation of the entire evidence on record in detail while acquitting the Respondent - Accused. The High Court has only made general observations on the depositions of the witnesses examined.
The High Court ought to have appreciated that it was dealing with the first appeal against the order of conviction passed by the Learned trial Court. Being First Appellate Court, the High Court was required to re-appreciate the entire evidence on record and also the reasoning given by the Learned trial Court while convicting the Accused. Being the First Appellate Court the High Court ought to have reappreciated the entire evidence on record without any limitation, which might be there while dealing with an appeal against the order of acquittal passed by the Learned Trial Court.(Downloaded on 25/05/2022 at 09:09:49 PM)
(27 of 30) [CRLA-674/2001] Therefore, we are of the firm opinion that the impugned judgment and order passed by the High Court acquitting the Respondent - Accused without adverting to the reasons given by the Learned trial Court while convicting the Accused and without reappreciating the entire evidence on record in detail cannot be sustained and the same deserves to be quashed and set aside. "
17. At the cost of repetition, this Court deems it proper to summarise the observations made by the Hon'ble Apex Court in the aforementioned precedent laws in the following manner:-
17.1 For offences under the Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act of 1988, it is fundamental that a Demand and Recovery of the same is proven against the accused.
17.2 The presumption under Section 20 of the Act of 1988, once demand and recovery are proven, operates against the accused, unless he rebuts the same to the satisfaction of the competent Court, and whether the rebuttal was made at the appropriate stage.
17.3 The powers of the appellate Court to reverse an order of acquittal, under the Act of 1988, passed by the Court below, can be done only on the ground that the view taken by the Court below is erroneous or perverse, and not because the appellate Court, after looking into the facts and circumstances of the case, is inclined to take another possible view than the one taken by the learned Court below. Furthermore, the instances in which the appellate Court may disturb an order of acquittal, under the Act of 1988, passed by the learned Court below on any of the grounds as enumerated in the case of Chandrappa (supra).(Downloaded on 25/05/2022 at 09:09:49 PM)
(28 of 30) [CRLA-674/2001] 17.4 And that, an appellate Court may interfere with an order of conviction, under the Act of 1988, only after a re-appreciation of of the entire evidence on record and thereafter, if the appellate Court finds the reasons as laid out by the Court below, in convicting the accused, under the Act of 1988, to be bad or unsustainable in the eye of law, then it may interfere and accordingly, reverse the conviction into an acquittal.
18. Now adverting to the facts and circumstances of the present case, this Court makes the following observations:-
18.1 Coming to the present case, one may safely assume, as is reflected from the record, that there has been a recovery of Rs.
2,300/- of the alleged illegal gratification through the trap proceedings set by the A.C.B. authorities from the residence of the doctor-appellant, the said currency notes were smeared with phenolphtalein powder, and that once the doctor-appellant was apprehended by the A.C.B. authorities, his hands were of a pinkish hue upon being tested, as a result of coming in contact with the said currency notes which were smeared with the chemical, phenolphtalein powder.
18.2 What therefore remains to be seen is whether the appellant-
doctor made a demand for a bribe / illegal gratification from the complainant.
18.3 This Court observes that the contention of the learned Senior counsel appearing on behalf of the appellant, that there was no work pending with the appellant-doctor on the date on which the trap proceedings were set against him and when he was apprehended by the A.C.B. authorities, is verifiable from the record, as the medical report in question, for which the demand (Downloaded on 25/05/2022 at 09:09:49 PM) (29 of 30) [CRLA-674/2001] was allegedly made, was created on 22.04.1997 while the complainant lodged a report on 04.05.1997 with the Anti-
Corruption Bureau, Jodhpur subsequent to which trap proceedings were conducted on 09.05.1997, were much after the medical report had been created.
18.4 However, it is unclear and has not been stated before this Court, as to the possible purpose for which the appellant-doctor then called the complainant to his residence on that particular day.
18.5 This Court observes that the learned Court below has passed the impugned order after finding that a Demand was made from the appellants herein, coupled with a recovery of the same from him. This Court finds that the demand hinges on the fact that the medical report to be given by the appellant-doctor was pending before him, whereas the appellant-Doctor had already prepared the medical injury report, as is evident from the letter at Ex. 12, on 22.04.1997, the S.H.O. sent the said letter to the medical officer of injured Jetha Ram in which due to injury, there was swelling and bruising / scratches around his left eye, and which was received by the appellant-doctor on 21.04.1997 on the basis of which he prepared the injury report, at Ex. 16, on 21.04.1997 itself. And that, the appellant dispatched the same on 27.04.1997 vide dispatch Register Entry, at Ex. 18, and was received at the Police Station on the same day, as is reflected from the said exhibit placed on the record.
18.6 This Court observes, after a thorough perusal of the record, and the above made observations that the view taken by the learned Trial Court is erroneous, since although the Recovery has been proven, the alleged Demand has not been proven. A (Downloaded on 25/05/2022 at 09:09:49 PM) (30 of 30) [CRLA-674/2001] presumption under Section 20 also cannot be made, and any basis for the same is absent in light of the clear proof that a lack of motive for alleged Demand. And therefore, the charges against the accused-appellant are not made out, as one of the quintessential ingredients for the offences under Sections 7 and 13 (1) (d) and 13 (2) of the Act of 1988 is absent.
19. This Court, in light of the above made observations and the aforementioned precedent laws laid down by the Hon'ble Apex Court, finds that the impugned judgment passed by the Trial Court deserves to be quashed and set aside.
20. The appeal is allowed and the appellant is hereby acquitted of all charges leveled against him herein. The accused is on bail, his bail bonds and sureties stand discharged. He need not surrender. Accordingly, all pending applications, if any, are disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
145-Skant/-
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