Rajasthan High Court - Jodhpur
Prakash Manihar 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. 389/1991
Prakash Manihar
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. M.S. Rajpurohit
For Respondent(s) : Mr. Arun Kumar, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved On: 11/05/2022 Pronounced On: 25/05/2022
1. This Criminal Appeal under Section 374 Cr.P.C. has been preferred with the following prayer:-
"It is, therefore, prayed that this Hon'ble Court will be pleased to send for the record of the lower ourt, peruse the same and after perusal quash the convictions and sentences passed against the appellant or pass any other orders that this Hon'ble court deems fit and proper."
2. This Criminal Appeal has been preferred against the judgment dated 02.12.1991 passed Special Court (Anti Corruption Cases), Bhilwara, in Case No. 4/91 (4/83) whereby the appellant was convicted under Section 161 I.P.C. and Section 5 (1) (d) (2) Prevention of Corruption Act.
3. Brief facts of the case as placed before this Court by learned counsel for the appellant are that the appellant was an Assistant Engineer, R.S.E.B., Gangrar in the month of March, 1982, and that on 04.03.1982, one Mohan Jat appeared before the Anti (Downloaded on 25/05/2022 at 09:09:34 PM) (2 of 26) [CRLA-389/1991] Corruption Dept. Chittorgarh and complained against the appellant stating that a demand for illegal gratification, to the tune of Rs. 200/- was made from him by the appellant. And that, on the very same day, proceedings were conducted and the D.S.P. along with the complainant started for the purpose of trap, but since the appellant was unavailable on that particular day, the trap was postponed for the subsequent day, and that on 05.03.1982 again a trap was laid by the D.S.P. and the complainant, and that a recovery of the said amount was allegedly made from the appellant. And that on this basis, the accused appellant as charge sheeted and was convicted, as aforementioned.
4. Learned counsel for the appellant further submits that the learned Court below has erred in convicting the appellant, as the essential ingredients for a conviction under both offences are not made out and that therefore, the judgment of the learned Court below deserves to be quashed and set aside.
4.1 Learned counsel also submits that there are contradiction testimony given by P.W. Mohan, who subsequently turned hostile and retracted his earlier statements. And that, if such inconsistent statements are made by a key witness, then that statement whichis in favour of the accused has to be taken into consideration by the Court. Furthermore, that his statements are unsubstantiated by any evidence and therefore should not have been taken into consideration by the learned Court below. 4.2 Learned counsel further submits that the alleged demand for illegal gratification from the appellant, and that in the absence of same a conviction cannot be made against an accused under the Prevention of Corruption Act, and that a conviction cannot be (Downloaded on 25/05/2022 at 09:09:34 PM) (3 of 26) [CRLA-389/1991] made on the sole basis of alleged recovery of an amount from an accused.
4.3 Learned counsel also submits that the same, as above discussed, is corroborated from the testimonies of the witnesses' P.W. 1 Shiv Narain, P.W. 2 Vakat Ram and P.W. 4 Harish Chander, who are motbirs, do not connect the accused with the crime, and that they did not see the acceptance of the alleged illegal gratification from the appellant. And that, the testimony rendered by P.W. 3 Mohan was also not corrborated by either of the testimonies of the said witnesses.
4.4 Learned counsel further submits that the learned Court below has seriously erred in drawing a presumption under Section 4 of the Prevention of Corruption Act when there is no prima facie evidence of a demand for illegal gratification being made by the appellant.
4.5 Learned counsel also submits that the amount of Rs. 200/- which is being attributed the status of illegal gratification as recovered from the appellant, was in fact an amount advanced as loan by the appellant to one Shri Bharat Vijay Singh Thakur of Putholi on 07.01.1982, who gave the said amount to Mohan, P.W. 3 when he was coming to Gangrar, to return to the appellant. And that, this is corroborated by the documentary evidence as well as oral evidence placed on record before the learned Court below. 4.6 Learned counsel further submits, as stated above, that Ex. D/2 is the post card written by Bharat Vijay Singh Thakur, which bears the postal date 04.03.1982, on which money was sent by him. And that, the same is proven by D.W. 3 Shri Rughnath Singh, son of Shri Bharat Vijay Singh Thakur, and D.W. 1 Prakash (Downloaded on 25/05/2022 at 09:09:34 PM) (4 of 26) [CRLA-389/1991] Manihar, as well as D.W. 2 Bhom Raj Chhagani also corroborate this. And that, there is no evidence to disbelieve these testimonies either.
4.7 Learned counsel thus submits, that the above mentioned are satisfactory grounds to rebut the presumption under Section 4 of the Prevention Corruption Act, and that the appellant therefore deserves to be acquitted from all the charges leveled against them.
4.8 Learned counsel for the appellant placed reliance on the following case laws:-
4.8.1 B. Jayaraj Vs. State of A.P. (2014) 13 SCC 55 "In so far as the offence Under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence Under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu v. C.B.I. (2009) 3 SCC 779.
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."
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4.8.2 R.P.S. Yadav Vs. C.B.I. (2015) 11 SCC 642
"In fact, we do not find any such legally acceptable evidence either from P.W. 3 or from the other so called independent witness P.W. 6 or the shadow witness in order to show that the mandatory requirement for conviction Under Sections 7 and 13(2) read with 13(1)(d) namely, the demand, acceptance and recovery was chronologically proved as against the Appellant."
4.8.3 State of U.P. Vs. Ram Asrey 1990 Supp (1) SCC 12 " The appellate Court has given the following reasons for allowing the appeal of the respondent, they being:
1) There is no corroboration of the testimony of the complainant, Ambar Prasad regarding the demand of bribe by the respondent on 27.10.79.
2) The evidence adduced by the prosecution that even on
5.11.79, the respondent demanded the bribe from Ambar Prasad in the presence of other persons without taking any precaution is not convincing.
3) There is no acceptable reason as to why Ambar Prasad who had promised to give the bribe money on 8.11.79 came even on 5.11.79 with the vigilance party.
4) Though Ambar Prasad agreed to pay Rs. 15/-, he paid only Rs. 10/-.
5) The application said to have been presented by Ambar Prasad is not found. 6) No evidence whatsoever was produced to show that Ambar Prasad required a backward class certificate for getting the scholarship in the month of November.
The sum and substance of the above reasonings go to show that there is no acceptable and clinging evidence proving that there was a demand of bribe and that the respondent accepted the amount in question as a motive or reward for doing an official act or showing a favour to Ambar Prasad in expertise of his official function"
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4.8.4 N. Sunkanna Vs. State of A.P. (2016) 1 SCC 713
"It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence Under Section 7, since demand of illegal gratification is sine-qua-non to constitute the said offence.
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. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three-Judge Bench of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 and P. Satyanarayna Murthy v. The District Inspector of Police and Anr. (2015 (9) SCALE 724].
In the present case the primary facts on the basis of which the legal presumption Under Section 20 can be drawn are wholly absent. The judgments of the Courts below are, therefore, liable to be set aside. For the aforesaid reasons the appeal is allowed and the conviction of the Appellant Under Section 7 and under Section 13(1)(d) read with Section 13(2) of the Act and the sentences imposed are set aside and he is acquitted of the charges. The bail bond, if any, furnished by the Appellant be released. "
4.8.5 Ulfat Rai Arya Vs. State of Rajasthan 2007 CriLJ 1846 "Before dealing with the evidence it would be appropriate to have a look on the provisions of legal presumption provided under Section 4(1) of the Act around which the arguments were advanced by the parties which reads as under:
Section 4(1):- Presumption where public servant accepts gratification other than legal remuneration. (1) Where in any trial or an offence punishable under Section 161 of Section 165 of the Indian Penal Code or of an offence referred to in Clause (a) or Clause (b) of Sub-section (1) of Section 5 of this Act punishable under Sub-section (2) thereof, it is proved that a accused person has accepted (Downloaded on 25/05/2022 at 09:09:34 PM) (7 of 26) [CRLA-389/1991] or obtained, or has agreed to accept . or attempted to obtain, for himself or for any other person 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 things, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be without consideration or for a consideration which he knows to be inadequate.
A plain reading of the above provision makes it clear that when the accused accepted the gratification, the presumption immediately comes into play that he accepted it as a motive or reward such as is mentioned in Section 161, IPC. Hon'ble the Apex Court in the case of T. Shankar Prasad's case, (2004 Cri LJ 884) (supra) held that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or for bearing to do any official act etc. if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 4 of the Act is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. In M. Narsinga Rao's case (supra) it was held that where the receipt of gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as a reward for doing the public duty.
In Gulam Mahmood A. Malek's case 1980 CriLJ 1096 (supra) it was held that while appreciating the evidence the background of the case should not be lost sight of it was also laid down that past conduct of the complainant should not be ignored. In Suraj Mai's case (supra) it has been observed that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In Kesaram's case (supra) it has been held that when accused at the earliest disclosed the fact of receiving Rs.
100/- against the money due in the brother of the complainant and the defence version has been supported by the prosecution witnesses, the appellant has succeeded in probising the defence. In Duraisami's case (supra), it was held (Downloaded on 25/05/2022 at 09:09:34 PM) (8 of 26) [CRLA-389/1991] that when the explanation given by the accused is found to be true and genuine then case set up by the defence has to be accepted.
In view of the above evidence, it appears that decoy P.W. 1 T. C. Deothia offered the money to the accused appellant giving an impression that he is returning the money due on him.
In the view of the matter as discussed above, the sole testimony of the decoy P.W. I. T. C. Deothia cannot be believed in regard to the demand of bribe.
In view of what has been discussed above, it can be safely stated that the accused has been successful to satisfactorily rebut the presumption arising against him under Section 4(1) of the Act. It appears that P.W. 1 T. C. Deothia got the trap arranged to give a went to his annoyance and prevent the appellant in pronouncing the order which had finally been prepared by the appellant by which two grade increments of the decoy T. C. Deothia were stopped. Also viewed in this perspective the defence version appears to be plausible, reasonable and logical that the accused accepted the money under the impression that P.W. 1 T. C. Deothia was returning the money which was earlier advanced to him." 4.8.6 Banshi Lal Baghela Vs. State S.B. Criminal Appeal No. 664/2000 (Raj. HC) "The provisions of law laid down in aforementioned sections of the Act of 1988, as reproduced above, supplemented by the decisions rendered by the Hon'ble Apex Court in the cases of R.P.S. Yadav (supra), B. Jayaraj (supra), P. Satyanarayana Murthy (supra) and reaffirmed in N. Sunkanna (supra) Jhabar Singh(supra) have made it amply clear that the demand of illegal gratification is sine qua non to constitute the offence under Section 7. And that, in the absence of such a demand, a presumption, under Section 20 of the Act of 1988, cannot be made against the accused. And that, a mere possession and recovery of an amount of money is not sufficient ground to proceed against the accused unless it has been proved beyond doubt that the accused voluntarily accepted the money knowing it to be a bribe.
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(9 of 26) [CRLA-389/1991] Furthermore, this Court also finds that all the witnesses have turned hostile, and therefore the superstructure upon which the presumption has been drawn against the accused by the learned court below is without any sufficient foundation; since it has neither been proved that a demand of illegal gratification was made by the accused herein, nor does there remain any witness whose testimony speaks to the culpability of the accused.
This Court, in light of the above made observations, finds that the conviction of the accused appellant cannot be sustained and, therefore, the impugned judgment deserves to be quashed and set aside."
4.8.7 Hari Rudra Bhavan Vs. State of Rajasthan S.B. Criminal Appeal No. 520 of 1975 (Jaipur Bench) decided on 12.03.1982 "Consequently, it can be safely held that the evidence produced by the prosecution in proof of the fact that the currency notes were thrown by the appellant after taking them out of his coat's pocket at the sight of the Additional Superintendent of Police, Anti-Corruption and his party or at the time when be was going to be arrested by the Additional Superintendent is not cogent, reliable and unimpeachable. The prosecution could not succeed in proving beyond reasonable doubt that the appellant demanded or accepted illegal gratification from Mangat Singh for payment of interest on his Jagir bonds. In the absence of any trust-worthy evidence from the side of the prosecution relating to demand and acceptance of bribe I am unable to up-hold the convictions and sentences of the appellant under Sec. 161, I.P.C. and Sec. 5(2) read with Sec. 5 (1) (d) of the Prevention of Corruption Act. Hence the appeal filed by the appellant under Sec. 161 I.P.C. and Sec. 5(2) and with Sec. 5(1)(d) of the Prevention of Corruption Act is accepted and he is acquitted of his original offence. The appellant is on bail. He is not to surrender to his bail bonds which are here by cancelled."
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4.8.8 State of Madhya Pradesh Vs. Shri Vishnu Prasad
Babele 1991 CriLJ 1983 decided on 03.10.1989 "Before I proceed to deal with the evidence and findings recorded in the case, I feel it my duty to state the law on the subject as decided by the Supreme Court. In the case of Panalal v. State of Maharashtra AIR 1979 SC 1191 it has been held (at page SC 1192; AIR 1979 :
"There could be no doubt that the evidence of the complaint should be corroborated in material particulars. After introduction of Section 165A of the I.P.C. making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon."
In the case of Gulam Mahmood v. State of Gujarat, AIR 1980 SC 1558 : 1980 CrilJ 1096 it has been held -
"......the complainant is in the nature of an accomplice."
"........Before any court could act on his testimony, corroboration in material particulars is necessary............"
In the case of Raghubir Singh v. State of Punjab, AIR 1976 SC 91 :
1976 Cri LJ 172 it has been held -
"They must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe........."
xx xx xx xx xx .
".......The evidence in regard to the search of the appellant and the seizure of five marked currency notes from him is, in the context of the other facts and circumstances of the case, not such as to inspire confidence and cannot be implicitly accepted."
In the case of Lachman Dass v. State of Punjab AIR 1970 SC 450 :
1970 Cri LJ 526 it was held -
".......There ought to be some other evidence before his word can be accepted with so much other evidence to contradict him. In trap cases at least some panches over-hear the conversation or see something to which they can depose....."
xx xx xx xx xx ".......We are satisfied that there is considerable room for doubt in this case and that the statement of Kishori Lal which alone is (Downloaded on 25/05/2022 at 09:09:34 PM) (11 of 26) [CRLA-389/1991] the foundation of the charge against the appellant cannot be accepted without corroboration."
In the case of Salim Khan (supra), it was held -
".........very clever people who are young and agile are often victimised by pickpockets and only when their valuables have been lost the fact is noticed by them. The process here is the reverse one. Instead of the pocket being picked, currency notes have been inserted into it....."
In the case of Sita Ram v. State of Rajasthan AIR 1975 SC 1432 : 1975 Cri LJ 1224 it was held (at page 1436 SC; AIR 1975) -
".........The result is that not only the story of demand of bribe by the appellant from the complainant is not proved but even the story of payment of the money by the complainant is not established beyond reasonable doubt. That being so, the rule of presumption engrafted in Section 4(1) cannot be made use of for convicting the appellant."
"....On mere recovery of certain money from the person of an accused without the proof of its payment by or on behalf of some person to whom official favour was to be shown the presumption cannot arise."
In the case of Darshan Lal v. Delhi Admn., AIR 1974 SC 218 : 1974 Cri LJ 307 it was held -
"......There is thus no independent reliable corroboration of the statements of Niranjan Lal and Anand Behari Lal as regards the first offer. Lastly, in this background it was proper to took for unimpeachable evidence as to the passing of the currency note from Niranjan Lal to the appellant. We have already indicated certain important circumstances which cast doubt on that story".
xx xx xx xx xx "Having regard to all these circumstances, we think it is a fit case whether the courts below should have required independent and trustworthy corroboration of the evidence of Niranjan Lal and Satish Chandra who had laid the trap........."
In the case of Raghbir Singh (supra), it was held that the officer laying the trap must seriously endeavor to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence. Please also see : Lachman Dass v. State of Punjab AIR 1970 SC 450.
In the case of Darshan Lal (supra), it has been held that though the trap witness is an interested witness in the sense that (Downloaded on 25/05/2022 at 09:09:34 PM) (12 of 26) [CRLA-389/1991] he is interested to see that the trap laid by him succeeded. He could at least be equated with a partisan witness and it would not be advisable to rely upon his evidence without corroboration. The interested and partisan witnesses are concerned in the success of the trap. Their evidence must be tested in the same way as that of any interested witness and in proper case, the court may look for independent corroboration for convicting the accused person. Please also see : Major S.C. Barsay v. State of Bombay AIR 1961 SC 1762 : 1961 (2) Cri LJ 828.
Is the story of demand of bribe and its payment is not established, the rule of presumption engrafted in Section 4(1) cannot be made use for convicting the appellant. Sita Ram v. State of Rajasthan, AIR 1975 SC 1432. In Suraj Mal v. The State, (Delhi Admn.) AIR 1979 SC 1408 it was said that mere recovery of money divorced from the circumstances under which it was laid was not sufficient when the substantive evidence in the case was not reliable to prove payment of the bribe or to show that the accused voluntarily accepted the money. In Banshi Lal Yadav v. State of Bihar AIR 1981 SC 1235 : 1981 Cri LJ 741 the Court held that before presumption can be raised, the burden is on the prosecution to prove that the accused accepted any gratification for himself.
The learned Special Judge, in paras 12 to 18 of his judgment, has discussed the testimony of all the above witnesses and has come to the conclusion that the allegation of demand of bribe has not been proved.
The view taken by the trial Court is probable and reasonable. I, therefore, find no substance in this appeal, which is hereby dismissed."
5. 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 a perusal of the evidences placed on record before it.
6. Heard learned counsel for both parties and, perused the record of the case and the judgments cited at the Bar. (Downloaded on 25/05/2022 at 09:09:34 PM)
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7. 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."
8. 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 (Downloaded on 25/05/2022 at 09:09:34 PM) (14 of 26) [CRLA-389/1991] 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 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, --(Downloaded on 25/05/2022 at 09:09:34 PM)
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(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 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. (Downloaded on 25/05/2022 at 09:09:34 PM)
(16 of 26) [CRLA-389/1991] (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 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."
9. This Court observes that, for the offences under Sections 7 and 13 sub-section (1) (d) read with Section 13 sub-section (2) of (Downloaded on 25/05/2022 at 09:09:34 PM) (17 of 26) [CRLA-389/1991] 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. 9.1 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.
10. 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 (Downloaded on 25/05/2022 at 09:09:34 PM) (18 of 26) [CRLA-389/1991] 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.
11. 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.
12. 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."
12.1 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. 12.2 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 (Downloaded on 25/05/2022 at 09:09:34 PM) (19 of 26) [CRLA-389/1991] 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."
13. This Court is also conscious of the following judgments rendered by the Hon'ble Apex Court:-
13.1 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 (Downloaded on 25/05/2022 at 09:09:34 PM) (20 of 26) [CRLA-389/1991] 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 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 (Downloaded on 25/05/2022 at 09:09:34 PM) (21 of 26) [CRLA-389/1991] 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 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 13.2 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 (Downloaded on 25/05/2022 at 09:09:34 PM) (22 of 26) [CRLA-389/1991] on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court."
13.3 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 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 (Downloaded on 25/05/2022 at 09:09:34 PM) (23 of 26) [CRLA-389/1991] 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. "
14. 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:-
14.1 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.
14.2 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.
14.3 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).
14.4 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 (Downloaded on 25/05/2022 at 09:09:34 PM) (24 of 26) [CRLA-389/1991] 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.
15. Now adverting to the facts and circumstances of the present case, this Court makes the following observations:-
15.1 This Court observes that the Recovery of Rs. 200/- from the accused herein, was proven. The said amount was recovered from him when he was caught red handed. And upon being tested, his hands, and the vest worn by him at the time were found to be a light pinkish hue, as a result of coming into contact with the phenophthalein powder smeared on them.
15.2 The explanation so forwarded by the accused, that the amount was received by him as a repayment of the loan that he had advanced to the complainant was not substantiated with evidence, and the same was found to be without merit. 15.3 The motbir witnesses, Harishchandra & Shiv Narayan, along with P.W.2 Bagat Ram and P.W.5 Bhawarlal have also corroborated the version of the prosecution, to the extent of recovery. 15.4 As rightly observed by the learned Trial Court, Ex. D/2 reveals that a third party, Shri Bharat Vijay Singh Thakur, sent a post card requesting a pro note / receipt from the accused- appellant herein, stating therein that he the amount sent with the complainant was duly received by the accused-appellant requesting a receipt for the payment, but however that while the money was sent in person, from Putholi to Gangrar, which is at a distance of only about 10-15 kms., the receipt was requested via a post card. And that, such receipt was not requested from the third (Downloaded on 25/05/2022 at 09:09:34 PM) (25 of 26) [CRLA-389/1991] party at the time of giving the alleged loan to the accused- appellant, but only requested one at the time of returning said alleged loan.
15.5 However, this Court, on a careful perusal of the record, finds that on one side, as narrated above, the recovery is absolutely established in the present case, but the second pole of the prosecution, which is the demand is quite shadowy and suspicious, because neither there is any transcript, nor any tape recording(s) / telephonic conversation/phone records, nor any motbir witness, nor anything else, which could establish the element of demand against the accused-appellant, beyond all reasonable doubts.
15.6 The precedent law laid down by the Hon'ble Apex Court is clear in this respect, that both elements of the demand and recovery ought to be clearly proved before convicting the accused concerned.
15.6.1 As per the record, though the element of recovery is there, but the element of demand is clearly absent in the present case, and therefore, in the opinion of this Court, it is a fit case for acquittal of the accused-appellant herein.
16. Thus, in view of the above and in light of the aforementioned precedent laws, this Court is of the opinion that the present appeal deserves be allowed and the impugned judgment of conviction dated 02.12.1991 deserves to be quashed and set aside.
17. Resultantly, the present appeal is allowed, while acquitting the present accused-appellant of all the charges levelled against him, the impugned judgment of conviction and order of sentence (Downloaded on 25/05/2022 at 09:09:34 PM) (26 of 26) [CRLA-389/1991] dated 02.12.1991 is quashed and set aside. The appellant is on bail; he need not surrender. His bail bonds stand discharged. Accordingly, all pending applications, if any, are disposed of. Record of the learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
skant/-
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