Rajasthan High Court - Jodhpur
Narendra Kumar 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. 134/2000
Madan Lal
----Appellant
Versus
State
----Respondent
Connected With
S.B. Criminal Appeal No. 115/2000
Narendra Kumar
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr.H.S.S. Kharlia, Senior Advocate
assisted by Mr. Shreekant Verma &
Ms. Kinjal Purohit
For Respondent(s) : Mr. A.R. Choudhary PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 16/05/2022 Pronounced on 25/05/2022
1. These criminal appeals under Section 374 Cr.P.C. have been preferred against the judgment dated 23.03.2000 passed by the learned Special Judge, Prevention of Corruption Act Cases, Bikaner in Sessions (Prevention of Corruption) Case No.11/95 (121/97), whereby the accused-appellants were convicted for the offences under Sections 7 & 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'Act of 1988'); for the offence under Section 7, each of the accused- appellants were sentenced to undergo six months rigorous imprisonment and a fine of Rs.1,000/- and; for the offence under Section 13(1)(d) read with Section 13(2), each of the accused-
appellants were sentenced to undergo one year's rigorous
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imprisonment and a fine of Rs.1,000/-; in default of payment of the aforesaid fine, each of the accused-appellants were to undergo further three months rigorous imprisonment. The sentences were ordered to run concurrently.
2. As the pleaded facts and the record would reveal, the charge against the present accused-appellants is that accused-appellant Madan Lal and accused-appellant Narendra Kumar, while, at the relevant time, being posted as Enforcement Inspector and Office Assistant, respectively, in the Supply Department, Sri Ganganagar, both being hand in glove with each other, demanded and received an illegal gratification to the tune of Rs.400/- in to be shared equally (earlier demand of Rs.500/- was made, but with due negotiation on count of poor financial condition of the complainant, the same was settled for a sum of Rs.400/-). 2.1 Such illegal gratification, as per the prosecution, was demanded and received by the accused-appellants, for the purpose of enabling the complainant (Sanjeev Kinara) to obtain the Rajasthan Trade Authority License (RTAL) (also referred to as 'license') in connection with sale of Food Grains and Food Oils; for obtaining such license, the complainant submitted an application before the Supply Department, Sri Ganganagar. 2.2 Furthermore, as per the prosecution, the accused-appellants, by corrupt and illegal means, while otherwise abusing their official position as a public servant, obtained for themselves the pecuniary advantage to the extent of the aforementioned illegal gratification from the complainant, for the purpose, as indicated above.
3. The genesis of the dispute is traceable to a written application submitted by the complainant on 30.06.1994 before (Downloaded on 25/05/2022 at 09:09:44 PM) (3 of 29) [CRLA-134/2000] the Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Sri Ganganagar, to the effect, amongst others, that he had submitted an application for obtaining the license for the aforesaid purpose before the Department, wherein the accused-appellants, at the relevant time, were working in their respective official capacity; this is more so when, as per the complainant, he had completed all the requisite formalities and produced before the Department all the necessary documents, alongwith his application.
3.1 On such application/report, the case was taken on file by the then Deputy Superintendent of Police, ACB, and thereafter, the necessary trap against the present accused-appellants was arranged, in the usual mode, while also making arrangement of two dependent witnesses, namely, Gyan Chand and Sunil Kumar Madan, who at the relevant time, were posted and working in the Urban Improvement Trust, Sri Ganganagar.
3.2 After usual efforts, the trap was finally being made in the Office of District Supply Officer, Sri Ganganagar, where both the accused-appellants were caught red-handed with the respective amount demanded and received by them as illegal gratification. Upon being so caught, accused-Narendra Kumar's hands were tested under the Sodium Carbonate Solution, and resultantly, fingers of his both the hands turned pink and the said solution thereafter was kept in two separate and sealed glass bottles; similarly, fingers of accused-Madan Lal's hands were also tested under the Sodium Carbonate Solution, whereupon colour of his left fingers turned pink, while fingers of his right hand turned grey (Matmeila), and the said solution also thereafter was kept in two separate and sealed glass bottles; the trousers of the accused- (Downloaded on 25/05/2022 at 09:09:44 PM)
(4 of 29) [CRLA-134/2000] appellants were also put under the same test, which also gave positive results. Thereafter, the challan against which, amongst others, as per the prosecution, the illegal gratification was demanded and received by the accused-appellants was also kept into custody by the officials of the ACB.
4. After completion of the necessary trap proceedings as well as consequential proceedings, a zero number FIR for registration was sent to the Headquarters at Jaipur, whereupon FIR (Ex.P.25) was registered, and upon receipt of the prosecution sanction qua both the accused-appellants (public servants), the matter was investigated into, which culminated into filing of the charge-sheet against both the accused-appellants for the alleged offences was submitted before the learned trial court. Upon the charges being denied by the accused-appellants, they both were made to stand the trial, and the trial accordingly commenced.
5. After hearing both the parties at length and recording the testimony of all the witnesses produced before the learned trial court, the trial was concluded; the learned trial court vide the impugned judgment dated 23.03.2000, convicted and sentenced the accused-appellants, as above.
6. Mr. H.S.S. Kharlia, learned Senior Counsel assisted by Mr.Shreekant Verma and Ms. Kinjal Purohit submitted that in this case, no witness, other than the testimony of the complainant himself, was produced before the learned trial court to substantiate the demand of illegal gratification by the accused- appellants. Furthermore, as per learned Senior Counsel, no independent witness, rather any incriminating evidence, to substantiate the alleged demand, was produced before the learned trial court; in this view of the matter, the sole testimony of the (Downloaded on 25/05/2022 at 09:09:44 PM) (5 of 29) [CRLA-134/2000] complainant, that too having much variance and inconsistency, could not have become the basis of the conviction of the accused- appellants.
6.1 Learned Senior Counsel also submitted that the complainant, at the hands of the accused-appellants, was never pressurized in relation to the demand of the illegal gratification, which was also admitted by the complainant himself in this testimony before the learned trial court. As per learned Senior Counsel, the allegation of demand of illegal gratification is also false on the count that the application for obtaining the license was submitted by the complainant on 28.06.1994 and all the proceedings on the part of the accused-appellants were completed on 29.06.1994 (i.e. before the date of filing of the complaint dated 30.06.1994); including the necessary inspection and approval of the requisite site plan - both on 28.06.1994 itself, by accused-Madan Lal, coupled with order for issuance of license by the concerned District Supply Officer on that day itself; the same was clearly admitted by PW-3 Rajendra Prasad and PW-8 Ramphool Meena, Dy.SP. Thus, as per learned Senior Counsel, when all the proceedings on the part of the accused-appellants were completed, no occasion could have arisen to them for demanding the alleged amount of illegal gratification, towards performance of such proceedings. 6.2 As per learned Senior Counsel, even if it is believed that the amount in question was found to be in possession of the accused- appellants, then also it is an admitted fact that same was tucked into the pockets of the accused-appellants, which fact was also brought to the knowledge of the ACB officials on the trap spot, as revealed from the record.
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(6 of 29) [CRLA-134/2000] 6.3 Learned Senior Counsel further submitted that despite the aforesaid factual matrix, the present false case against the present accused-appellants was prepared at the instance of one Subhash, Office Superintendent and one Om Prakash Joshi, which was substantiated by the testimony of DW-1 Badri Narayan and DW-2 Himmat Singh, and thus, the complainant was himself an accomplice of the said Subhash and Om Prakash Joshi, so as to falsely entangle the accused-appellants in the present case. 6.4 Learned Senior Counsel further submitted that accused- Madan Lal has satisfactorily explained before the learned trial court that so far as the amount of illegal gratification, alleged to have been recovered from him is concerned, he was asked to pick the same upon such currency notes being fallen on the floor, on count of some snatching, while the complainant was compelling the accused to accept the bribe amount in question; accused- Narendra Kumar has clearly explained before the learned trial court that he was falsely implicated in this case at the hands of the said Subhash, his friend Om Prakash Joshi and the present complainant, in connection with the enquiry being made by the A.D.M. about the corrupt officials in the Department, for the purpose of their transfer; thus, these three persons, in connivance with each other, hatched a conspiracy, so as to falsely entangled the accused-appellant in the present case. Thus, as per learned Senior Counsel, the learned trial court, on that count also, erred in convicting the present accused-appellants for the alleged offences. 6.5 Thus, learned Senior Counsel submitted that the learned trial court has not made due appreciation of the evidence placed on record before it and without considering the overall facts and circumstances of the case, the learned trial court convicted the (Downloaded on 25/05/2022 at 09:09:44 PM) (7 of 29) [CRLA-134/2000] accused-appellants for the alleged offences, and thus, the impugned judgment of conviction and order of sentence cannot be sustained in the eye of law.
6.6 Learned Senior Counsel placed reliance on the following judgments:
K. Shanthamma Vs. State of Telangana, 2022 CRI.L.J.1238, relevant portion of which reads as under:
"7. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act. In the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another1 , this Court has summarised the well-settled law on the subject in paragraph 23 which reads thus:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)
(d)(i) and (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 Section 7 or 13 of the Act would not entail his conviction thereunder."
(emphasis added)
11. Thus, PW1 did not state that the appellant reiterated her demand at the time of trap. His version is that on his own, he told her that he had brought the amount. What is material is the cross-examination on this aspect. In the (Downloaded on 25/05/2022 at 09:09:44 PM) (8 of 29) [CRLA-134/2000] crossexamination, PW1 accepted that his version regarding the demand made by the appellant on various dates was an improvement. The relevant part of the cross-examination of the appellant reads thus:
"I did not state to ACB Inspector in section 161 Cr.P.C. statement that on the evening of 24.02.2000 I met the AO and that she demanded the bribe. I did not mention in Ex.P3 complaint that continuously for 3 days after 24.02.2000 I met the AO and the AO reiterated her demand. I did not mention in Ex.P3 complaint that on 29.02.2000 I approached the AO and the AO demanded bribe of Rs.3,000/- and that unless I pay the said bribe amount she will not issue final assessment orders. I did not state in my Sec.164 statement before the Magistrate that 13.03.2000 to 16.03.2000 I was on leave and from 01.03.2000 to 12.03.2000, I was engaged in recovering the dues of the society. It is not true to suggest that I did not meet the AO continuously 3 days i.e., on 25th, 26th and 27th of February, 2000 and that 27.02.2000 is Sunday. It is not true to suggest that I did not meet the AO in the evening of 24.02.2000 and that AO did not demand any money from me. I did not state in my section 161 Cr.P.C. statement to Inspector of ACB that before I left the office of DSP on the date of trap I made a phone call enquiring about the availability of AO and the AO was in the office and informed me that she should be available in the office from 6.00 to 7.00 P.M. on that day so also in my Sec.164 Cr.P.C. I made such a phone call from the office of the DSP, ACB. I do not remember as to from which phone number I made phone call on that day. I cannot describe office telephone number of the AO. It is not true to suggest that I did not make any such phone call to AO and that she did not give any such reply to me. I did not state to ACB Inspector in my 161 Cr.P.C. statement or to the Magistrate in my S.164 Cr.P.C. statement that I went inside the office of AO and I wished AO and at that time apart from AO some other person was found in the office room of AO and that he was talking to the AO and that the AO offered me a chair and that after discussion with the AO the said person left the room of AO (Downloaded on 25/05/2022 at 09:09:44 PM) (9 of 29) [CRLA-134/2000] and then I informed the AO that I brought the bribe amount. I did not state that said aspects to DSP during the post trap proceedings also.
(underlines supplied)
12. Thus, the version of PW1 in his examination-in-chief about the demand made by the appellant from time to time is an improvement. As stated earlier, LW8 did not enter the appellant's chamber at the time of trap. There is no other evidence of the alleged demand. Thus, the evidence of PW1 about the demand for bribe by the appellant is not at all reliable. Hence, we conclude that the demand made by the appellant has not been conclusively proved.
15. Thus, this is a case where the demand of illegal gratification by the appellant was not proved by the prosecution. Thus, the demand which is sine quo non for establishing the offence under Section 7 was not established."
Mukhtiyar Singh (since deceased) through His Legal Representative Vs. State of Punjab, (2017) 8 SCC 136, relevant portion of which reads as under:
"13. 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 vs. State of Kerala, 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 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 vs. C.P. Rao 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.(Downloaded on 25/05/2022 at 09:09:44 PM)
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14. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P.6 underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well 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. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)
(i) and (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 6 (2014) 13 SCC 55 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 and 13 of the Act would not entail his conviction thereunder."
(emphasis supplied)
25. 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 (Downloaded on 25/05/2022 at 09:09:44 PM) (11 of 29) [CRLA-134/2000] 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 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."
P. Satyanarayana Murthy Vs. Dist. Inspector of Police & Anr., AIR 2015 SC 3549, relevant portion of which reads as under:
"18. This Court in A. Subair vs. 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.
19. In State of Kerala and another vs. C.P. Rao (2011) 6 SCC 450, 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 (Downloaded on 25/05/2022 at 09:09:44 PM) (12 of 29) [CRLA-134/2000] 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.
20. 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.
21. 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.
22. 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.
23. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the (Downloaded on 25/05/2022 at 09:09:44 PM) (13 of 29) [CRLA-134/2000] latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs. 500/- from the pocket of his shirt and handed over the same to the appellant. Though, a very spirited endeavour has been made by the learned counsel for the State to co-relate this statement of PW1- S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt.
Even if the evidence of PW1- S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Section 7 or 13(1)(d)(i)&(ii) of the Act has been proved. True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3.10.1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 4.10.1996. However, the testimony of PW1- S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or 13(1)(d)(i)&(ii) of the Act against the appellant has been proved beyond reasonable doubt.
24. 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.
25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. 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 (Downloaded on 25/05/2022 at 09:09:44 PM) (14 of 29) [CRLA-134/2000] "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.
26. 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." B. Jayaraj Vs. State of A.P., 2014 CRI.L.J.2433, relevant portion of which reads as under:
"8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without (Downloaded on 25/05/2022 at 09:09:44 PM) (15 of 29) [CRLA-134/2000] proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as 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 established.
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."
State of Rajasthan Vs. Gurmail Singh, AIR 2005 SC 1578, relevant portion of which reads as under:
"2. This appeal has been preferred by the State of Rajasthan against the judgment and order of the High Court of Judicature for Rajasthan at Jodhpur in Criminal Appeal No.392 of 1996 dated May 6, 1998. The Respondent who had been found guilty of the offence under Section 8 read with Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) was sentenced to 10 years rigorous imprisonment and a fine of Rs.1 lakh by the learned Special Judge, N.D.P.S.Cases Sri Ganganagar in Sessions Case No.15 of 1995. The Respondent preferred an appeal before the High Court which was allowed by the High Court by its impugned judgment and order.
3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that (Downloaded on 25/05/2022 at 09:09:44 PM) (16 of 29) [CRLA-134/2000] the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent."
Pooran Singh Vs. State of Uttarakhand, 2014 CRI.L.J. 650, relevant portion of which reads as under:
"11. I have carefully examined the statement of PW 1 S.I. Kailash Singh Negi, PW-4 constable Diwan Ram and PW 5 Investigating Officer Umed Singh Danu. It has not been made clear under whose custody contraband and sample of contraband were kept and remained between 28.02.2011 to 07.03.2011.
Moreover, if sample was handed over to PW-4 Constable Diwan Ram on 07.03.2011 as to why same was delivered to F.S.L. on 10.03.2011. In the absence of malkhana register, it cannot be said as to whether contraband sample were deposited in malkhana in intact condition and remained intact and untouched till sample was produced before the Court on 07.03.2011. In the absence of sample seal so prepared by the Arresting Officer PW 1 S.I. Kailash Singh Negi, it cannot be said that contraband and sample were kept in the seal and signature of PW 1 S.I. Kailash Singh Negi.
12. Hon'ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh, reported in (2005) 3 SCC 59: (AIR 2005 SC 1578 : 2005 Cri LJ 1746, in paragraph 3 has held as under:(Downloaded on 25/05/2022 at 09:09:44 PM)
(17 of 29) [CRLA-134/2000] "We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent."
13. In view of the dictum of the Hon'ble Apex Court in the case of Gurmail Singh (supra), sample seal and malkhana register are most important link evidence and in the absence of important link evidence, prosecution story becomes highly doubtful.
14. PW 1 S.I. Kailash Singh Negi and PW 2 Constable Harshvardharn stated on oath that information to the Superior Officers were sent through telephone on 28.02.2011 itself about the arrest of the appellant and seizure of the contraband. While seizure memo, Exhibit A3, contains that information about the arrest of the appellant and seizure of the contraband would be sent to the Superior Officer by telephone as well as through proper channel. There is absolutely no paper on record to suggest that information about the arrest of the appellant and seizure of the contraband from the appellant was ever sent to the Superior Officers as required under Section 57 of the N.D.P.S. Act." (Downloaded on 25/05/2022 at 09:09:44 PM)
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7. On the other hand, learned Public Prosecutor submits that the allegation of demand of illegal gratification by the accused- appellant is clearly proved by the contents of the application of the complainant and his preceding statement recorded under Section 164 Cr.P.C. before the competent Magistrate; the said demand was further substantiated by the testimony of eye witness PW-4 Rajendra Prasad.
7.1 As against the submission made on behalf of the accused- appellants regarding the present complainant being an accomplice of Subhash and Om Prakash Joshi, learned Public Prosecutor submits that the said averments is without any basis and foundation, and the same appears to be a method devised so as to evade the prosecution and to get acquittal in the present case. 7.2 Learned Public Prosecutor further submits that in the cases relating involving the provisions of the Prevention of Corruption Act, it is not necessary to prove the offence by direct evidence; in such kind of cases, circumstantial evidence, if substantial in nature, can be led to prove the offence alleged against the public servant concerned.
7.3 Learned Public Prosecutor also submits that the guilt of the accused-appellants is writ large, as the same is completely substantiated by factum of the application for license submitted by the complainant remained pending, delivery of challan on the spot by taking illegal gratification, and affirmation thereof by the testimony of Rajendra Prasad, Ramphool and the complainant himself.
11. Heard learned counsel for both parties and perused the record of the case.
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12. At the outset, 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."
13. 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:-
"7. Public servant taking gratification other than legal remuneration in respect of an official Act (Downloaded on 25/05/2022 at 09:09:44 PM) (20 of 29) [CRLA-134/2000] 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.
(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 (Downloaded on 25/05/2022 at 09:09:44 PM) (21 of 29) [CRLA-134/2000] 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
(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 (Downloaded on 25/05/2022 at 09:09:44 PM) (22 of 29) [CRLA-134/2000] 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 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 (Downloaded on 25/05/2022 at 09:09:44 PM) (23 of 29) [CRLA-134/2000] 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."
13. 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. 13.1 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.
14. 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 (Downloaded on 25/05/2022 at 09:09:44 PM) (24 of 29) [CRLA-134/2000] 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.
15. 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.
16. 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."
16.1 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. (Downloaded on 25/05/2022 at 09:09:44 PM)
(25 of 29) [CRLA-134/2000] 16.2 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."
17. This Court is also conscious of the following judgments rendered by the Hon'ble Apex Court:-
17.1 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:-
"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."(Downloaded on 25/05/2022 at 09:09:44 PM)
(26 of 29) [CRLA-134/2000] 17.2 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. 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 (Downloaded on 25/05/2022 at 09:09:44 PM) (27 of 29) [CRLA-134/2000] cannot be sustained and the same deserves to be quashed and set aside. "
18. 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:-
18.1 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.
18.2 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.
18.3 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).
18.4 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 (Downloaded on 25/05/2022 at 09:09:44 PM) (28 of 29) [CRLA-134/2000] unsustainable in the eye of law, then it may interfere and accordingly, reverse the conviction into an acquittal.
19. Now adverting to the facts and circumstances of the present case, this Court makes the following observations:-
19.1 The learned Trial Court has, upon trial, convicted the appellants herein for the offences under Sections 7, 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, vide the impugned order.
19.2 This Court observes that the learned Court below has categorically dealt with each of the evidences placed on record and subsequently found the appellants to be guilty of the aforementioned offences.
19.3 The grounds raised by the learned Senior Counsel for the appellants have in fact, already been dealt with by the learned Court below while passing the impugned order. 19.4 As is reflected from the record, and as rightly pointed out by the learned Public Prosecutor, the allegation that the complainant was an accomplice of Subhash and Om Prakash Joshi, has not been substantiated with credible evidence. 19.5 Furthermore, the motive of demand of the bribe has also been proved as substantiated from the fact that an application for the license submitted by the complainant remained pending, and the challan was delivered on the spot after taking the bribe / demand / illegal gratification, and this is also corrborated by the testimony of witnesses, Rajendra Prasad, Ramphool and the complainant himself.
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(29 of 29) [CRLA-134/2000] 19.6 This Court therefore observes, after a thorough perusal of the record, it does not appear that the view taken by the learned Trial Court is perverse / erroneous.
19.7 This Court therefore 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 them; which is further corroborated by the evidences of the testimony of the witnesses, as discussed above, and by the chemical test conducted upon the hands of both the accused herein further proves the case of the prosecution.
20. 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 upheld.
21. This Court, therefore, finds that the impugned judgment passed by the learned Court below, does not suffer from any legal infirmity, and therefore, the same is upheld and affirmed.
22. The appeal is dismissed. The accused are on bail, necessary steps be taken forthwith to take the accused into custody to serve out the remaining part of their sentence. The impugned judgment of conviction as passed by the learned Trial Court is hereby affirmed. Accordingly, all pending applications, if any, are disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
42-SKant/-
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