Rajasthan High Court - Jodhpur
Banshi Lal Baghela vs State on 21 April, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 664/2000
Banshi Lal Baghela
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. J.S. Choudhary, Senior Advocate
assisted by Ms. Sampatti Choudhary
For Respondent(s) : Mr. M.S. Bhati PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 19/04/2022 Pronounced on 21/04/2022
1. In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.
2. This criminal appeal under Section 374 Cr.P.C. has been preferred against the judgment 13.10.2000 passed by the learned Special Judge (Sessions Judge), Prevention of Corruption Act, Jodhpur in Criminal Case No.176/97, whereby the present accused-appellant was convicted for the offence under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'Act of 1988') and was sentenced to undergo one year's rigorous imprisonment and a fine of Rs.3000/-, in default of payment of which, he was to undergo further three months simple imprisonment; for the offence under Section 13(1)(d)(2) of the (Downloaded on 21/04/2022 at 08:25:43 PM) (2 of 13) [CRLA-664/2000] Act of 1988, he was sentenced to undergo two years rigorous imprisonment and a fine of Rs.6000/-, in default of payment of which, he was to undergo further six months simple imprisonment.
3. Brief facts of this case, as placed before this Court by Mr. J.S. Choudhary, learned Senior Counsel assisted by Ms.Sampatti Choudhary appeared on behalf of the accused-appellant, are that on 23.02.1996, one Jay Shankar (PW-1) submitted a written complaint (Ex.P.2) before the Additional Superintendent of Police, ACB Chowki, Jodhpur, alleging therein that his wife, who was working as A.N.M. in the Medical Department, expired on 17.08.1995. It was further alleged that a bill of an amount of Rs.42,450/- towards the insurance was pending with the said Department. It was also alleged that the complainant approached the present accused-appellant, who at the relevant time, was the Medical Officer, PHC Banar, but the present accused-appellant demanded illegal gratification from the complainant for doing the needful.
4. On the basis of the aforementioned report/complaint, the ACB officials arranged the trap and send the complainant to give the present accused-appellant, as per his demand, the amount of illegal gratification; the complainant handed over such amount to the present accused-appellant, whereafter, the ACB officials upon reaching the spot, recovered from the present accused-appellant an amount of Rs.1500/- received by him as illegal gratification.
5. Thereafter, an FIR bearing No.44/96 was registered against the accused-appellant for the offence under Sections 7 & 13(1)(d) (Downloaded on 21/04/2022 at 08:25:43 PM) (3 of 13) [CRLA-664/2000] (2) of the Act of 1988; wherein after investigation, a charge-sheet for the said offences was filed against the accused-appellant.
6. Subsequently, charges for the aforementioned offences were framed against the accused-appellant, who denied the same, and claimed the trial.
7. Learned Senior Counsel for the accused-appellant submitted that the accused-appellant has never demanded the illegal gratification from the complainant (PW-4), which fact is further substantiated by the statement of the complainant rendered before the learned court below; thus, as per learned Senior Counsel, even the complainant himself has not supported the prosecution story in any manner whatsoever. Learned Senior Counsel further submitted that the attesting witnesses to the recovery memo and the other prosecution witnesses have also turned hostile, and thus, have not supported the prosecution story. Thus, as per learned Senior Counsel, the prosecution has completely failed to prove its case beyond all reasonable doubts. 7.1 Learned Senior Counsel also submitted that once it has been proved that the accused-appellant even was not authorized to make the payment towards the insurance to the complainant, then there was no question of any intention or motive on the part of the accused-appellant to demand the alleged illegal gratification.
8. Learned Senior Counsel for the accused-appellant also submitted that the presumption under Section 7 of the Act of 1988 can only be made once a demand for an illegal gratification has been made; in the present case, the same has not been proved, and therefore, presumption under Section 7 cannot be made. Furthermore, as per learned Senior Counsel, the learned court (Downloaded on 21/04/2022 at 08:25:43 PM) (4 of 13) [CRLA-664/2000] below has not taken into due consideration Section 13(1)(d)(2) of the Act of 1988.
9. Learned Senior Counsel for the accused-appellant however, submits that the accused-appellant was ordered to be released on bail vide order dated 22.11.2000 passed by this Hon'ble Court, and thus, he is on bail.
10. In support of his submissions, learned Senior Counsel for the accused-appellants placed reliance on the precedent law laid down by the Hon'ble Supreme Court in the following judgments:-
10.1 R.P.S. Yadav Vs. Central Bureau of Investigation, 2015 Cr.L.R. (SC) 849, relevant portion of which reads as under:
"9. Going by the above version of P.W. 3, it was clear that both on the first occasion when accused Janakraj was confronted by the officials of C.B.I. the process of dipping his fingers in the solution was carried out and the said process was repeated afresh after he was taken to the chambers of the Appellant. Secondly, nowhere in the evidence of P.W. 3 either in chief or in the cross we could deduce any statement to the effect that at any point of time the hand wash of the Appellant was taken in order to show that after the initial recovery from accused Janakaraj the process was continued to ensure that the demand of the Appellant and acceptance of the bribe money through Janakaraj was completed by accepting the money from accused Janakaraj and ultimately recovery was also effected from the Appellant by the usual practice of hand wash of the Appellant.
10. 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) (Downloaded on 21/04/2022 at 08:25:43 PM) (5 of 13) [CRLA-664/2000] namely, the demand, acceptance and recovery was chronologically proved as against the Appellant. In the light of our above conclusion based on the analysis of the evidence led before the Court, we are constrained to hold that the conviction imposed on the Appellant by the trial court as well as confirmation of the same by the High Court cannot be sustained.
11. The appeal succeeds and the impugned judgment is set aside. The Appellant is stated to be on bail. His bail bonds shall stand discharged and his sentence is set aside."
10.2 B. Jayaraj Vs. State of A.P. 2014 Cr.L.R. (SC) 445, wherein the Hon'ble Apex Court made the following observations:-
"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 Vs. State of A.P.[1] and C.M. Girish Babu Vs. C.B.I.[2] 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 (Downloaded on 21/04/2022 at 08:25:43 PM) (6 of 13) [CRLA-664/2000] 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 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.
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.
For the aforesaid reasons, we cannot sustain the conviction of the appellant either under Section 7 or under 13(1)(d)(i)(ii) read with Section 13(2) of the Act. Accordingly, the conviction and the sentences imposed on the accused-appellant by the trial court as well as the High Court by order dated 25.4.2011 are set aside and the appeal is allowed."
10.3 P. Satyanarayana Murthy Vs. The District Inspector of Police & Anr. 2015 Cr.L.R. (SC) 1047 (Downloaded on 21/04/2022 at 08:25:43 PM) (7 of 13) [CRLA-664/2000] "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.
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.
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.
(Downloaded on 21/04/2022 at 08:25:43 PM)
(8 of 13) [CRLA-664/2000] 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.
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 "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"
10.4 Learned counsel also placed realiance upon the judgements rendered by the Hon'ble Apex Court in N. Sunkanna Vs. State of Andhra Pradesh 2015 Cr.L.R. (SC) 1164 and Jhabar Singh Vs. State of Haryana 2016 0 AllSCR (Cri) 1874 wherein the Hon'ble Apex Court reiterated upon the ratio decidendi laid down in the precedent laws cited above.
11. On the other hand, the learned Public Prosecutor, while opposing the aforementioned submissions made on behalf of the petitioner, submitted that the learned court below, after taking into due consideration all the facts and circumstances of the (Downloaded on 21/04/2022 at 08:25:43 PM) (9 of 13) [CRLA-664/2000] present case and after considering the evidence placed on record before it, has rightly passed the impugned order.
12. Learned Public Prosecutor further submitted that the learned court below has rightly proceeded with finding that since the recovery of an amount of Rs.1500/- was made from the accused- appellant, a presumption can be made under the provisions of the Act of 1988.
13. Heard learned counsel for the parties as well as perused the record of the case, alongwith the precedent law cited at the Bar.
14. Section 7 of the Act of 1988, as stood prior to the amendment of 2018 and as is applicable in the present case, reads as under:
"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 six months but which may extend to five years and shall also be liable to fine.
(Explanations)--(Downloaded on 21/04/2022 at 08:25:43 PM)
(10 of 13) [CRLA-664/2000]
(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration"
are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section." 14.1 Section 13(1) (d) (ii) of the Act of 1988, as stood prior to the amendment of 2018 and as is applicable in the present case, reads as under:
"13. Criminal misconduct by a public servant.-
(1) A public servant is said to commit the offence of criminal misconduct,-
(d) if he,--
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or"(Downloaded on 21/04/2022 at 08:25:43 PM)
(11 of 13) [CRLA-664/2000] 14.2 Section 20 of the Act of 1988, as stood prior to the amendment of 2018 and as is applicable in the present case, reads as under:
"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." (Downloaded on 21/04/2022 at 08:25:43 PM)
(12 of 13) [CRLA-664/2000]
15. 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.
16. The impugned judgment passed by the learned Court below has proceeded against the accused, without there being sufficient grounds to do so, and there is no basis for making the presumption under Section 20 of the Act of 1988. The learned court below, therefore, has not taken into consideration the overall facts and circumstances of the case, while passing the impugned judgment.
17. 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 (Downloaded on 21/04/2022 at 08:25:43 PM) (13 of 13) [CRLA-664/2000] made by the accused herein, nor does there remain any witness whose testimony speaks to the culpability of the accused.
18. 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.
19. Resultantly, the present appeal is allowed. Accordingly, the conviction of the appellant as recorded vide the impugned judgment dated 13.10.2000 passed by the learned Special Judge, Sessions Judge, Prevention of Corruption Act, Jodhpur in Criminal Case No.176/97 is quashed and set aside. The appellant is acquitted of the charges levelled against him. The appellant is on bail; he need not surrender. His bail bonds stand discharged accordingly. All pending applications also stand disposed of. Record of the learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
60-SKant/-
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