Jharkhand High Court
Rajeshwar Prasad vs State Of Jharkhand Thr.Vigilan on 1 October, 2013
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P. No.1644 of 2011
Rajeshwar Prasad.........................................Petitioner
VERSUS
State of Jharkhand through Vigilance..... Opposite Party
CORAM: HON'BLE MR.JUSTICE R.R.PRASAD
For the Petitioner :Mr. P.P.N.Rai, Sr. Advocate
For the Vigilance :Mr. Shailesh Advocate
8/ 1.10.13. This application was initially filed for quashing of the FIR of Vigilance P.S. case no.4 of 2011 instituted under Section 7/13(2) of the Prevention of Corruption Act. Subsequently, when upon submission of the charge sheet, cognizance of the offence punishable under Section 7/13(2) of the Prevention of Corruption Act was taken against the petitioner by the then Special Judge, Vigilance, vide its order dated 29.3.2011. The said order was also challenged.
Mr.P.P.N.Rai, learned Sr. counsel appearing for the petitioner submits that it is the case of the prosecution that Tarun Kar had asked for illegal gratification from the complainant. The complainant gave the illegal gratification to Tarun Kar, who accepted it and then it is said that he passed on the tainted money to this petitioner from whom it was recovered but that would not make out a case for prosecution under Section 7 and 13 of the Prevention of Corruption Act so far this petitioner is concerned as the petitioner can never be said to have accepted the bribe money on behalf of the Tarun Kar, rather as per the statement made by Tarun Kar he had passed on the money to this petitioner for hiding it and that the petitioner had never been alleged to have had demanded money from the complainant and in that event, mere recovery of the tainted money is not sufficient to hold a person guilty as demand of illegal gratification is sine qua non for constituting offence under the Prevention of Corruption Act, 1988.
In this regard, learned counsel has referred to a decision rendered in a case of State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede [(2009) 15 SCC 200] and also in a case of C.M.Sharma vs State of A.P. TH. I.P [2010 (8) Supreme 59] .
Thus, it was submitted that in absence of any material of demand of illegal gratification by this petitioner from the complainant, the order taking cognizance is fit to be quashed.
However, Mr.Shailesh, learned counsel appearing for the Vigilance submits that there has been no denying of the fact that the tainted money was recovered from the possession of this petitioner. Since the tainted money has been recovered from the possession of this petitioner, legal presumption under Section 20 of the Prevention of Corruption Act, 1988 can be drawn against the petitioner to have accepted illegal gratification. Once such legal presumption would be drawn, it is for the petitioner to prove his innocence and this can be done at the stage of trial. Therefore, order taking cognizance never warrants to be quashed.
Learned counsel in support of his case has referred to a decision rendered in a case of T. Shankar Prasad vs. State of A.P. [(2004) 3 SCC 753] .
Further it was submitted that it could be only during trial the prosecution would have an opportunity to adduce evidence to show that there was conspiracy in between this petitioner and other accuse Tarun Kar and in such circumstances also it would never be desirable at this stage to quash the order taking cognizance.
Learned counsel in this respect has referred to a decision rendered in a case of C.M.Sharma vs. State of A.P (AIR 2011 SC 608) .
It was further submitted that apart from the offences being made out under Section 7/13 of the Prevention of Corruption Act, the petitioner can be said to have also committed offence under the IPC for causing disappearance of the legal evidence and as such, the order taking cognizance never warrants to be quashed.
Thus, the question which has cropped up is that whether recovery of the tainted money would be enough to put the accused person on trial?
In this respect, I may straightway refer to Section 20 of the Prevention of Corruption Act which reads as follows :
"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 of clause (a) or clause (b) of 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, s 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."
Thus, from perusal of the provision, it does appear that whenever it is proved that a sum of money other than legal remuneration has been accepted, the presumption under Section 20 of the Prevention of Corruption Act shall at once arise regarding acceptance of gratification.
In a case of Dhanvanti Balwantrai Desai vs. State of Maharashtra (AIR 1964 SC 575) it has been observed that in order to raise the presumption under Section 4(1) of the Prevention of Corruption Act what the prosecution has to prove is that accused person has received gratification other than legal remuneration and when it is shown that he has received certain sum of money which was not legal remuneration then the condition prescribed by this section is satisfied and the presumption thereunder must be raised."
In a case of V.D.Jhingan vs. State of U.P (AIR 1966 SC 1762) it has been observed that mere receipt of money is sufficient to raise the presumption under Section 4(1) of the Prevention of Corruption Act, 1947.
In a case of C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala [(2009) 3 SCC 779] , Their Lordships have held in paragraph 18 as follows:
"18. In Suraj Mal vs. State, (Delhi Admn.) 1979 (4) SCC 725 this Court took the view that (at SCC P.727, para 2) mere recovery of tainted 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. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe".
Placing reliance on the said decision Their Lordships in a case of C.M.Sharma vs. State of A.P (supra) relied upon on behalf of the petitioner was pleased to hold that demand of illegal gratification is sine qua non to constitute an offence under the Act".
"Further mere recovery of currency note itself does not constitute an offence under the Act unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe.
Thus, only when evidences would be laid it could be known as to whether the money recovered from the possession of the petitioner had been accepted by the petitioner voluntarily knowing it be to bribe money or it is otherwise which could be proved by the parties during trial.
Therefore, at this stage, question of quashing of the order taking cognizance never does arise.
Accordingly, I do not find any merit in this application. Hence, this application stands dismissed.
(R.R.Prasad, J.) ND/