Rajasthan High Court - Jaipur
Lal Chand Aswal vs State Of Rajasthan Through Pp on 7 February, 2020
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No.383/2018
Lal Chand Aswal, S/o Shri Ram NiwasAswal, Aged 61 years, R/o
623, Shiv Marg, Banipark, Jaipur.
----Accused-Petitioner
Versus
State of Rajasthan through Public Prosecutor
----Respondent For Petitioner(s) : Mr. Swadeep Singh Hora For Respondent(s) : Mr. Rajendra Yadav, GA-cum-AAG HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA JUDGMENT RESERVED ON 31.01.2020 JUDGMENT PRONOUNCED ON 7th FEBRUARY, 2020
1. Brief facts which require to be considered for adjudication of this case are that the petitioner was selected and appointed as an RAS Officer in the year 1979 and was promoted as an IAS Officer in the year 2012. He was posted as Chief Executive Officer of Jaipur Nagar Nigam on 16th February, 2014 and under his administration, the Jaipur Nagar Nigam was awarded the best Municipal Corporation in garbage management and in improving the living environment.
2. On 11th August, 2014, an FIR was registered by the Anti Corruption Bureau wherein it was stated that an information was received that one Purshottam Jeswani posted as Executive Engineer in Jaipur Nagar Nigam takes files of the tenders of civil works to be executed by him from the Accounts Department and gets them approved from the Chief Executive Officer and towards (Downloaded on 13/02/2020 at 09:03:47 PM) (2 of 19) [CRLMP-383/2018] obtaining such approvals collects commission from the various contractors. It was also mentioned that on 10 th August, 2014, Shri Jeswani would go to the house of Chief Executive Officer for getting approval of the files. On the said source of information around 8.00 AM, the car of Shri Purshottam Jeswani was checked wherein 46 files were found and cash amount was also found. Shri Jeswani was taken by the Police Officials to the ACB Police Station and petitioner was subsequently arrested on 26 th September, 2014. A charge sheet was filed and later on two supplementary charge sheets were also filed by the ACB authorities naming the petitioner as a co-accused alleging offence committed under Sections 8, 13(1)(d), 13(1)(e) and Section 15 of the Prevention of Corruption Act, 1988 and Section 120B IPC. There was no allegation as against the petitioner under Section 13(1)(a) of the Prevention of Corruption Act, 1988 in the charge sheet but only the allegation levelled against him was under Sections 8, 13(1)(d)
(e) and 13(2) read with Section 15 of the Prevention of Corruption Act, 1988. On the basis of the charge sheet, cognizance was taken by the Special Judge, Prevention of Corruption Act, No.1, Jaipur vide order dated 21st November, 2014 under Sections 8, 13(1)(d)
(e), 13(2), 15 of the Prevention of Corruption Act, 1988 and Section 120B IPC. The petitioner has preferred this criminal misc. petition assailing the criminal proceedings and the cognizance order dated 21st November, 2014.
3. Learned counsel submits that entire proceedings initiated are gross abuse of the process of the court. It is submitted that from the charge sheet itself, it cannot be said that a case for offence (Downloaded on 13/02/2020 at 09:03:47 PM) (3 of 19) [CRLMP-383/2018] under Section 15 read with Section 13(1)(d) or under Section 13(1)(e) of the Prevention of Corruption Act, 1988 and under Section 120 IPC is made out against the petitioner. It is submitted that neither car was seized from the petitioner's residence nor files were found at the petitioner's residence. It is further submitted that Shri Purshottam Jeswani was an Executive Engineer and the files were recovered from his car while he was travelling on the road. The allegations that files were being brought by Shri Purshottam Jeswani to the petitioner's residence were also not proved by any witness and is solely based on statement of Shri Purshottam Jeswani.
4. The cash which was recovered from the possession of Shri Purshottam Jeswani has been claimed by Shri Purshottam Jeswani to be his own personal amount. While filing bail application before the Special Judge, Prevention of Corruption Act, No.1, Jaipur, Shri Purshottam Jeswani has stated that amount of Rs.15 lac which was recovered from his possession was his own and received through legal sources. He has also stated that he was pressurized to mention the name of petitioner who was Chief Executive Officer of Jaipur Nagar Nigam and that amount had been received by way of commission from the contractors although it was not true.
5. Learned counsel for petitioner has taken this court through the charge sheet and submitted that none of the so-called contractors was either made as accused or witness. All the files which were received from Shri Purshottam Jeswani were in relation to tenders which were floated through NITs and were to be granted in terms of the provisions governing grant of tenders. (Downloaded on 13/02/2020 at 09:03:47 PM)
(4 of 19) [CRLMP-383/2018] There is no allegation that there was any untoward favour to be given to any particular contractor. Learned counsel submits that in this regard, a committee was formed which has given its report and in none of the reports, any specific overt act has been mentioned which may implicate the petitioner who was the Chief Executive Officer of Jaipur Nagar Nigam. Learned counsel submits that the Executive Engineer who was found to be having in possession of the files of Jaipur Nagar Nigam were in no manner related to the petitioner and work orders were to be granted essentially at the level of Executive Officer itself and therefore, there was no role of the Chief Executive Officer in any manner.
6. Learned counsel petitioner has submitted that provision of Section 13(1)(d) provides that there should have been an illegal demand. The entire charge sheet is based on a statement of the co-accused before the police authorities wherein he has allegedly mentioned that he was taking amount and files to the petitioner's residence as it was a holiday.
7. Learned counsel submits that there is no demand of commission on the part of the petitioner nor any person has been shown to whom the demand was made. Learned counsel submits that neither there is any amount which has been received by the petitioner nor a presumption can be drawn that amount was meant to be given to the petitioner as no one has come forward to state in the charge sheet that amount was given by the said person for being given as commission to the petitioner. Thus, there is no evidence at all within the meaning of offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988. (Downloaded on 13/02/2020 at 09:03:47 PM)
(5 of 19) [CRLMP-383/2018] Learned counsel has further submitted that the petitioner has been alleged to have attempted to commit offence under Section 15 of the Prevention of Corruption 1988, whereas there has been no statement of any person to show that there was any attempt on the part of the petitioner by any of his overt act.
Learned counsel has relied on the judgments passed by the Supreme Court in support of his submissions which shall be referred in the subsequent paras.
8. Learned counsel submitted that committee has examined each and every file and has reached to the conclusion that there was no illegality committed in this regard. Learned counsel further submitted that additional report was demanded by the ACB from the committee with regard to the procedure followed for the purpose of incoming and outgoing files wherein report has been given additionally by the committee mentioning that so far as procedure adopted is concerned, there had been an irregularity committed for which the Executive Engineer and the Superintending Engineer were responsible. Similarly for violation of the General Finance & Account Rules, the committee held the concerned Executive Officer, Superintending Engineer, Accounts Officer, Legal Advisor and the Chief Executive Officer responsible. Thus only allegation is of supervisory negligence on the part of the Chief Executive Officer for violation of the procedure which cannot be made as a basis for filing of charge sheet and taking cognizance under the Prevention of Corruption Act, 1988.
Learned counsel submits that proceedings therefore be quashed and set aside.
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9. Per contra, learned Additional Advocate General appearing on behalf of the ACB submitted that charge sheet has been filed on the basis of statement recorded of Shri Purshottam Jeswani from whose possession, files were received and cash amount was also taken. On a specific query being raised to the AAG, he admitted that files were in relation to the NITs alone and there were no files wherein only work orders were to be approved. The query raised was in view of the fact that work orders can be issued even without inviting bids at the level of the officer alone while NITs are to be issued in terms of the Rajasthan Transparency in Public Procurement Act, 2012 which is not found to be a case here.
10. I have considered the submissions of learned counsel for the parties and perused the material available on record.
This court has gone through the entire charge sheet and the order taking cognizance and the documents relied upon in the charge sheet. From the investigation, it is noticed that the ACB had waylaid car of Shri Purshottam Jeswani on Shiv Marg, which is near to the residence of the petitioner. It stated that from possession of Shri Purshottam Jeswani, two bags of files were seized and the amount of Rs.15 lac was also found in his car which was explained by Shri Purshottam Jeswani to be an amount which he was to be handed over to the petitioner. The ACB authorities thereafter have collected the details relating to the files found in his car and recorded statement of Shri Purshottam Jeswani who stated that he was going to get signature of the Chief Executive Officer for approval on the files so that work orders may be issued (Downloaded on 13/02/2020 at 09:03:47 PM) (7 of 19) [CRLMP-383/2018] to the concerned contractors and was to hand over the commission which he had collected from the concerned contractors to the petitioner. It is to be noticed that while the car was waylaid near the residence of the petitioner, the Police has not recovered any document from the residence of the petitioner and has connected the petitioner on the basis of the statement of Shri Purshottam Jeswani alone. There is no incriminating evidence in the charge sheet either relating to demand or of any overt act of the petitioner.
11. Reply to the criminal misc. petition has been filed by the respondent wherein it has been stated as under:
"4. That for gathering the evidence against Lal Chand Aswal and other accused person the matter was kept pending under Section 173(8) of Cr.P.C. thereafter against accused petitioner i.e. Lal Chand Aswal and Purushottam Jeswani supplementary charge sheet No.309/2014 on the basis of available evidence on record was filed on 21-11- 2014 for offence under Section 8, 13[1][D][E] 13[2]. 15 of P.C. Act of 1988 and Section 120 B IPC. The investigation was kept pending for further gathering of evidence against both accused persons under Section 173[8] of Cr.P.C."
12. It is also noticed from the investigation conducted and the charge sheet filed along with supplementary charge sheet that only allegation against the petitioner is of having attempted to have committed offence of criminal misconduct by corrupt and illegal means for himself in terms of Section 13(1)(d) of the Act of 1988. No other person has been made as an accused except concerned Executive Officer and the petitioner. None of the contractors who have allegedly given the commission were made (Downloaded on 13/02/2020 at 09:03:47 PM) (8 of 19) [CRLMP-383/2018] either as accused or witnesses nor have been named under Section 173(8) Cr.P.C. There is no complaint from any contractor with regard to demand of amount against the petitioner.
13. In the aforesaid background, it would be useful to examine the provisions of Prevention of Corruption Act, 1988 and the law as held by the Supreme Court on the said aspects. The Prevention of Corruption Act has been amended and several provisions were added and deleted vide amendment dated 26th July, 2018.
As the present case relates to incident prior to amendment dated 26th July, 2018, the unamended provisions under the Prevention of Corruption Act, 1988 would have to be considered for adjudication of this case.
14. Sections 7 and 8 of the Prevention of Corruption Act, 1988 (Unamended) read as under:
"7. Offence 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 (Downloaded on 13/02/2020 at 09:03:47 PM) (9 of 19) [CRLMP-383/2018] three years but which may extend to seven years and shall also be liable to fine.
Explanations.--(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 then serve them, he 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.
(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.
8. Taking gratification, in order, by corrupt or illegal means, to influence public servant.-- Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official (Downloaded on 13/02/2020 at 09:03:47 PM) (10 of 19) [CRLMP-383/2018] act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt 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 for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
Section 13 of the Prevention of Corruption Act, 1988 (Unamended) reads as under:
"13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,--
(a) ..........................
(b) ..........................
(c) ..........................
(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
(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.(Downloaded on 13/02/2020 at 09:03:47 PM)
(11 of 19) [CRLMP-383/2018] 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 four years but which may extend to ten years and shall also be liable to fine."
Section 15 of the Prevention of Corruption Act, 1988 (Unamended) reads as under:
"15. Punishment for attempt.--Whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-section (1) of section 13 shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine."
Section 120B of the Indian Penal Code reads as under:
"120B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
15. In A. Subair Vs. State of Kerala, reported in (2009) 6 SCC 587, the Supreme Court after taking into consideration the aforesaid provisions held as under:
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(12 of 19) [CRLMP-383/2018] "13. The essential ingredients of Section 7 are:
(i) that the person accepting the gratification should be a public servant;
(ii) that he should accept the gratification for himself and the gratification should be 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 function, favour or disfavour to any person."
"14. Insofar as Section 13 (1)(d) of the Act is concerned, its essential ingredients are:
(i) that he should have been a public servant;
(ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant and
(iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person."
15. In the case of C.K. Damodaran Nair v. Government of India1, this Court had an occasion to consider the word "obtained" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 (now Section 13(1)(d) of Act, 1988), and it was held:
"12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused "obtained" the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c),
(d) or (e) of the Act. "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite (1997) 9 SCC 477 for an offence under Section 5(1)(d) of the (Downloaded on 13/02/2020 at 09:03:47 PM) (13 of 19) [CRLMP-383/2018] Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either "acceptance" or "obtainment"."
The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established."
16. In B. Jayaraj Vs. State of Andhra Pradesh, reported in (2014) 13 SCC 55, the Larger Bench was examining the case found that there has been a complainant who does not support the prosecution case and held that a presumption cannot be drawn under Section 20 of the Act of 1988 and has held as under:
"9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)
(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act.
Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
17. Keeping in view the above principles, the question whether cognizance taken by the court vide order dated 21 st November, 2014 under Sections 8, 13(1)(d)(e), 13(2), 15 of the Prevention of Corruption Act, 1988 and Section 120B IPC is made out or not? (Downloaded on 13/02/2020 at 09:03:47 PM)
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18. Upon reading the order of cognizance, this court finds that learned Special Judge, ACB has not discussed at all the allegation levelled in the charge sheet nor he has examined whether cognizance requires to be taken as against the petitioner from the facts which have been brought on record by the prosecution in its charge sheet. Initiating criminal proceeding against any individual is a very serious matter and the court must be extremely vigilant to initiate proceedings as rights of an individual are seriously curtailed and his position in the society is severely harmed. However, learned Special Judge, ACB has only stated that copy of the charge sheet was made available to the counsel for the accused. Heard arguments on cognizance. From the perusal of complete documents filed, there is no sufficient scope for taking cognizance against the accused petitioner.
19. As noted above, this court finds that from perusal of charge sheet, the Investigating Officer has stated that the concerned Shri Purshottam Jeswani has threatened the junior clerks and the employees of Mansarovar & Moti Dungari Zone and got their signatures done and has broken priority of files relating to tenders and has misconducted himself. The allegations in the statements of junior clerks and the employee are only against Mr. Purshottam Jeswani. There is no allegation of any overt act on the part of petitioner. The concerned Mr. Purshottam Jeswani has in his bail application claimed the amount of Rs.15 lac as his personal amount which has been mentioned in the order passed by learned court who was hearing bail application in its order dated 1 st December, 2014. The statement of Mr. Purshottam Jeswani alleging amount having been handed over to the petitioner has also been recorded subsequently at the Police Station. Thus, the (Downloaded on 13/02/2020 at 09:03:47 PM) (15 of 19) [CRLMP-383/2018] ingredients of demand as required for allegation of offence under Section 13(1)(d) are not found to be made out as against the accused-petitioner. Similarly the allegations of Section 13(1)(e) are also not found to be made out. The allegation of misconduct is also not found as there is no telephonic transcript of any demand or any signature of the accused-petitioner. There is no identifiable giver. There is no disproportionate asset alleged against the petitioner nor there is a case where he has on account of his action benefitted other person. Hence, the proceedings as against the accused petitioner are not made out under Sections 8, 13(1)
(d) and 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988.
20. On examining the supplementary report of the committee which examined the 46 files, no allegation has been levelled against the petitioner. However, there are procedural errors found like absence of sales tax clearance certificate etc. The other officials of the Corporation have been held responsible as per report namely, Assistant Engineer, Junior Engineer, Financial Advisor and the Executive Engineer. The petitioner being the Chief Executive Officer has been alleged to have not carried out his supervisory responsibility. This court however finds that none of the files was approved at the level of the petitioner and therefore, there is no supervisory negligence on the part of the petitioner. The supervisory negligence, if any, would not amount to criminal misconduct in terms of Section 13(2) of the Prevention of Corruption Act, 1988 and therefore, also cognizance could not have been taken on the basis of supplementary report. It is settled law as noted above that suspicion cannot take place of a criminal act.
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21. The action involving the petitioner in the case is solely based on a statement made before the police officials which has been made as evidence to frame the charge sheet against the petitioner. Thus this court is satisfied that neither there is any demand of illegal gratification available on record nor there is any material available on record to reflect direct or indirect evidence or any telephonic transcript to show that there was any demand by the petitioner. 46 files which have been recovered also do not reflect any role of the petitioner in the capacity as Chief Executive Officer to favour them in any illegal manner. There is no person claiming to have given any amount to the concerned Executive Engineer for delivering to the petitioner and therefore, it cannot be said that there is even an attempt within the meaning of Section 15 of the Act of 1988. Thus, this court is satisfied that there is no sufficient legal evidence for proceeding only from the documents which have been filed by the prosecution along with charge sheet.
22. In State of Karnataka Vs. Muniswamy & Ors., reported in (1977) 2 SCC 699, the Supreme Court has held as under:
"7................. In the, exercise of this whole some power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the; ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to. achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are (Downloaded on 13/02/2020 at 09:03:47 PM) (17 of 19) [CRLMP-383/2018] higher than the, ends of mere law though justice has got to be. administered according to laws made by the, legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to. save the inherent powers of the High Court to do justice between the State and its. subjects, it would be impossible. to appreciate the width and contours of that salient jurisdiction."
23. One other aspect is with regard to allegation of Section 120B IPC. Section 120B IPC can only be understood where there is a conspiracy from the attending circumstances. In the present case, from the entire charge sheet, there is no connection found to be made out between the petitioner and Mr. Purshottam Jeswani except that car was waylaid near the official residence of petitioner. It is not found whether petitioner was present in the house at the time when Mr. Purshottam Jeswani was arrested. It is also not alleged that there was any telephonic communication between the petitioner and the concerned Mr. Purshottam Jeswani. It is also not found whether the petitioner in any way was instrumental for posting the concerned person Mr. Purshottam Jeswani thus presumption of conspiracy cannot be made out. Thus, even presumption under Section 20(1) of the Prevention of Corruption Act, 1988 would not be made out as against the petitioner.
24. Keeping in view the above, in Sujit Biswas Vs. State of Assam, reported in (2013) 12 SCC 406, the Supreme Court has held as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will (Downloaded on 13/02/2020 at 09:03:47 PM) (18 of 19) [CRLMP-383/2018] be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., State v. Mahender Singh Dahiya, and Ramesh Harijan v. State of U.P.."
25. At the stage of cognizance, the court must look into the documents which have been filed by the prosecution to see whether a case is made out for taking cognizance of the offences alleged as it is settled law that cognizance is taken of the offence and not of the person.
26. Taking into consideration and as discussed above, this court is satisfied that the essential ingredients for taking cognizance of offences under Sections 8 and 13(1)(d)(e) read with Section 15 of (Downloaded on 13/02/2020 at 09:03:47 PM) (19 of 19) [CRLMP-383/2018] the Prevention of Corruption Act, 1988 and Section 120B IPC are found to be completely absent on the basis of the charge sheet filed by the prosecution against the petitioner. Thus, this court finds that allowing the criminal proceedings to continue would be nothing but a sort of abuse of the process of the court and ends of justice therefore would demand that proceedings ought not to be allowed to continue.
27. Accordingly, this criminal misc. petition is allowed. The proceedings initiated on the basis of charge sheet and the cognizance order dated 21st November, 2014 qua petitioner are quashed and set aside.
28. All pending applications also stand disposed of.
(SANJEEV PRAKASH SHARMA),J FATEH RAJ BOHRA /6-16 (Downloaded on 13/02/2020 at 09:03:47 PM) Powered by TCPDF (www.tcpdf.org)