Rajasthan High Court - Jodhpur
Sugan Chand Gurjar 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. 887/2004
Sugan Chand Gurjar
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Vikas Balia, Sr. Adv. Assisted by
Mr. Vishan Das
For Respondent(s) : Mr. A.R. Choudhary, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 16/05/2022 Pronounced on 25/05/2022
1. This Criminal Appeal under Section 374 Cr.P.C. has been preferred with the following prayer:-
"It is, therefore, humbly prayed that this appeal may kindly be accepted and allowed. Judgment dated 25.8.2004 passed by learned Special Judge (Prevention of Corruption Act), Udaipur in Cr. Case No.166/97 State V/s Sugan Chand Gurjar, whereby the learned Judge has convicted and sentenced the appellant, may kindly be quashed and set-
aside."
2. Brief facts of the case as placed before this Court by the learned counsel for the appellant are that on 20.08.1995, Jai Singh lodged a written report before State Bureau of Investigation, Bhilwara to that effect that he had purchased a bus bearing license No. RJY-3013, which was on the route from Gangapur to Bheem on 15.8.1995, and although it was travelling on the right side, another bus, bearing license plate no. RJ-06-P- 0261 came from the opposite side, and that the driver was under (Downloaded on 26/05/2022 at 08:33:03 PM)
(2 of 16) [CRLA-887/2004] the influence of alcohol and driving in a rash and negligent manner. Subsequently, that he lodged a case of accident at Police Station, Kareda, and that the matter was investigated by the appellant, SHO Sugan Chand, whom the complainant met and requested to get his vehicle released. And that, it is averred that he told the complainant that if he wanted to get the bus released with his help, then the complainant would have to give him an amount of Rs. 2,000/- to him of which Rs. 1,000/- was allegedly given to him pre - trap proceedings. And that when trap proceedings were conducted on 21.8.1995, and it is averred that he was caught red handed durign the same. Subsequently, after seeking permission, a challan was filed against him.
3. Learned counsel for the appellant further submits that on 15.9.1995, the day on which the buses met with an accident, complainant Jai Singh, and Chawand Singh seeking to repair the bus, requested the appellant-SHO for a loan of Rs. 1,000/- Furthermore, that the complainant was in fact no the registered owner of the bus, as aforementioned, as he did not have any documents to prove ownership. And that the same was mentioned in the report so lodged, which is the reason why the complainant has foisted this false case against the accused-appellant.
4. Learned counsel for the appellant also submits that the alleged trap was conducted on 21.8.1995 where as the bus in question, was already released on a 'supurdginama'. And that the appellant-SHO in his report, on 19.8.1995, had already stated therein, that the vehicle be released to the registered owner, and that as the complainant was not the registered owner, he has lodged the false case against him.
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5. Learned counsel for the appellant further submits that the ingredients of the demand are not made out, as some of the witnesses stated that the alleged bribe was made for release of vehicle and giving no objection note in the report, while other witnesses stated that the appellant demand money for damages/compensation of accident.
6. Learned Public Prosecutor opposes, and submits that the learned Court below has rightly passed the impugned order after taking into due consideration the overall facts and circumstances of the case, and an appreciation of the evidences on record.
7. Heard learned counsel for both parties and perused the record of the case.
8. 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 (Downloaded on 26/05/2022 at 08:33:03 PM) (4 of 16) [CRLA-887/2004] 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."
10. 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 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.(Downloaded on 26/05/2022 at 08:33:03 PM)
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(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"
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,--(Downloaded on 26/05/2022 at 08:33:03 PM)
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(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.
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.
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(7 of 16) [CRLA-887/2004] (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 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."
11. 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. 11.1 It is a settled position of law that any allegation under the aforementioned sections against an accused, if sans a demand for (Downloaded on 26/05/2022 at 08:33:03 PM) (8 of 16) [CRLA-887/2004] 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.
12. 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.
13. 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.
14. 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. (Downloaded on 26/05/2022 at 08:33:03 PM) (9 of 16) [CRLA-887/2004] 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."
14.1 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. 14.2 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."
15. This Court is also conscious of the following judgments rendered by the Hon'ble Apex Court:-
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(10 of 16) [CRLA-887/2004] 15.1 In N. Vijayakumar Vs. State of T.N. (2021) 3 SCC 687, the Hon'ble Apex Court reiterated the ratio decidendi laid down in Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 with respect to the powers of the appellate Court while dealing with an appeal against an order of acquittal. Further reference was made to the judgment rendered in Murugesan and Ors. v. State through Inspector of Police (2012) 10 SCC 383 wherein the Hon'ble Apex Court held that the appellate Court could reverse an order of acquittal passed by a Court below, only if it finds the view to be an erroneous or perverse view, and not merely if it finds that another view is possible while looking into the facts and circumstances of the case. And the same, has een consistently upheld by the Hon'ble Apex Court in multiple judgments. (See The State of Gujarat Vs. Navinbhai Chandrakant Joshi and Ors. (2018) 9 SCC 242 and State of Gujarat Vs. Bhalchandra Laxmishankar Dave (2021) 2 SCC
735.) Relevant portion of Chandrappa (supra) is reproduced as under:-
"1.An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
2. The Cr.P.C. puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
3. Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such (Downloaded on 26/05/2022 at 08:33:03 PM) (11 of 16) [CRLA-887/2004] phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the Accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
Relevant portion of Murgesan (supra) is reproduced as under:-
"In other words, the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasised that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such as "erroneous view" or "wrong view" which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible.
It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be (Downloaded on 26/05/2022 at 08:33:03 PM) (12 of 16) [CRLA-887/2004] tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court."
15.2 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."
15.3 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 (Downloaded on 26/05/2022 at 08:33:03 PM) (13 of 16) [CRLA-887/2004] 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 cannot be sustained and the same deserves to be quashed and set aside. "
16. 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:-
16.1 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.
16.2 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 (Downloaded on 26/05/2022 at 08:33:03 PM) (14 of 16) [CRLA-887/2004] Court, and whether the rebuttal was made at the appropriate stage.
16.3 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).
16.4 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.
17. Now adverting to the facts and circumstances of the present case, from a perusal of the record and as is recorded by the learned Court below, this Court makes the following observations:-
17.1 The Demand is proven and the motive for the same is clear, it was made for the purpose of release of vehicle. The appellant has not been able to disprove the fact that a Demand was made by him.
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(15 of 16) [CRLA-887/2004] 17.2 The accused-appellant herein was unable to rebut the presumption that he did not make any demand of illegal gratification, and therefore, the presumption under Section 20 of the Act of 1988, as made by the learned trial court, is valid, as the burden of proof to discharge the same lies on the shoulders of the accused himself, which he has failed to discharge; this is more so when, the accused has not been able to point out before the learned trial court, by placing any cogent and substantial evidence on record, in support of his defence that the amount in question was not received by him in the form of illegal gratification, rather the said amount was being given to him by the complainant towards repayment of loan, as borrowed by the complainant from the accused. Furthermore, in regard to such stand, the learned trial court observed that the accused could not establish, as to for what reason the amount in question was given by him to the complainant as a loan, and the accused also could not prove the factum of any prior acquaintance with the complainant, which may have persuaded him to advance such loan to the complainant; nor could he prove the fact of his being a money-lender before the learned trial court.
17.3 The recovery has been made from the accused, and the recovered currency which was smeared with phenophthalein powder has revealed that the appelllant has come into contact with the said notes as his hands and shirt pocket, have turned pink upon being tested.
17.4 And that although the appellant provided an explanation that he apparently advanced a loan to the complainant, but this was (Downloaded on 26/05/2022 at 08:33:03 PM) (16 of 16) [CRLA-887/2004] not substantiated with evidence nor proven to the satisfaction of the learned Court below.
17.5 The testimony of the investigating officer and the complainant match each other, and are corroborated by the testimony of the P.W. 7 and P.W. 12. And that, although P.W. 6 has turned hostile, it does not impact the case of the prosecution.
18. 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.
19. 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.
20. The appeal is dismissed. The accused is on bail; thus, necessary steps be taken forthwith to take the accused into custody to serve out the remaining part of the sentence. Accordingly, all pending applications, if any, are disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
127-SKant/-
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