Patna High Court
The Economic Offences Unit Through The ... vs Aruna Kumari on 19 February, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
GOVT. APPEAL (SJ) No.18 of 2019
Arising Out of PS. Case No.-31 Year-2014 Thana- ECONOMIC OFFENCES, BIHAR
District- Patna
======================================================
THE ECONOMIC OFFENCES UNIT THROUGH THE
SUPERINTENDENT OF POLICE, EOU, PATNA, BIHAR Bihar
... ... Appellant/s
Versus
ARUNA KUMARI, Wife of Aditya Narayan Resident of Village- Bara, P.S.-
Guraru, District- Gaya.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Vishwanath Pd. Singh, Sr. Advocate
Ms.Soni Shrivastava, Advocate
For the Respondent/s : Mr.Y.V. Giri, Sr. Advocate
Mr.Pranav Kumar, Advocate
Ms.Shrishti Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
CAV JUDGMENT
Date : 19-02-2025
Before recording the decision of this Court in respect
of the instant appeal on merits, this Court is under obligation to
decide the I. A. No. 1 of 2019, which is an application under
Section 5 of the Limitation Act for condonation of delay.
2. It will not be out of place to mention here that the
instant appeal was filed along with I. A. No. 1 of 2019. A Co-
ordinate Bench of this Court vide order, dated 23 rd of January,
2020, while refusing the prayer for condonation of delay,
dismissed both the I. A. No. 1 of 2019 as well as Government
Appeal (SJ) 18 of 2019.
3. Against the said order, dated 23rd of January, 2020,
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
2/36
the appellant moved before the Supreme Court in Special Leave
to Appeal (Crl.) Nos. 5068-5069 of 2020.
4. The Hon'ble Supreme Court passed the following
order on 19th of July, 2024:--
"Leave granted.
Having heard learned counsel for the
parties, we are of the opinion that the High
Court should have condoned the delay. The
matter required in-depth consideration.
Accordingly, we set aside the impugned
judgment and direct the High Court to examine
whether or not to grant leave to appeal to the
State against the impugned judgment dated
25.02.2019
. Govt. Appeal (SJ) No. 18/2019
shall accordingly stand revived on the file of
the High Court.
We have deliberately refrained from
commenting any further, as the matter will have
to be heard by the High Court. All pleas and
contentions are left open.
Parties shall appear before the High
Court on 28.08.2024, when the next date of
hearing will be fixed.
The appeals are allowed and
disposed of in the above terms.
Pending application(s), if any, shall
stand disposed of."
6. On perusal of the above quoted order, it appears
that the Hon'ble Supreme Court was of the opinion that the
High Court should have condoned the delay and the matter
required in-depth consideration. The above observation of the
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
Hon'ble Supreme Court, in my considered view, is in effect that
the delay in filing the appeal by 98 days ought to have condoned
and the appeal should have heard on merit by way of in-depth
consideration. Such observation of the Hon'ble Supreme Court
is in the nature of direction to allow the application under
Section 5 of the Limitation Act.
7. This Court in Paragraph No. 14 of the impugned
order dated 23rd of January, 2020 held as hereunder:-
"14. From the pleadings in the
Interlocutory Application, the Court finds that
learned counsel for the Department had sent the
memo of appeal along with the limitation petition
on 06.05.2019 itself to the Department. Thus, it is
clear that even on 06.05.2019, when the matter
was found fit for filing of appeal and the
prepared memo of appeal as also the limitation
petition was sent to the Department on
06.05.2019 and still the same being ultimately
filed on 07.08.2019, in the considered opinion of
the Court, cannot be casually condoned. There is
absolutely no explanation for such delay."
8. In a very recent decision in the case of Mool
Chandra v. Union of India & Anr., reported in (2025) 1 SCC
625, the Hon'ble Supreme Court referred to an earlier decision
in Commr., Nagar Parishad, Bhilwara v. Labour Court & Anr.,
reported in (2009) 3 SCC 525 and held that while deciding an
application for condonation of delay, it is well settled that the
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
High Court ought not to have gone into the merits of the case
and would have only seen whether sufficient cause had been
shown by the appellant for condoning the delay in filing the
appeal before it. We ourselves have also examined the
application filed under Section 5 of the Limitation Act before
the High Court and, in our opinion, the delay of 178 days has
been properly explained by the appellant. That being the
position, we set aside the impugned order of the High Court.
Consequently, the appeal filed before the High Court is restored
to its original file. The High Court is requested to decide the
appeal on merit in accordance with law after giving hearing to
the parties and after passing a reasoned order.
9. The lower court record of the instant appeal shows
that the impugned judgment of acquittal was passed on 25 th of
February, 2019. The application for obtaining certified copy was
made on 16th of March, 2019. The certified copy was provided
to the appellant on 4th of April, 2019. The Memorandum of
Appeal along with the limitation petition was sent to the
department on 6th of May, 2019 and after getting the approval of
the department, the Memorandum of Appeal as well as the
application under Section 5 of the Limitation Act was filed on
7th of August, 2019. It is true that there was delay of almost 3
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
months in filing the appeal, there are series of cases, specially
where the Government Department is under obligation to take
any legal step, the official red-tapism causes delay in taking
such step within the period of limitation. In such cases of
official lethargy or lackadaisical approach, unless a particular
person in charge of dealing with the file, can be pin pointed by
the Court, the Official Department, In-charge of investigation
and prosecution of a special case, cannot be held responsible for
causing delay. The Court is required to take liberal, justice
orientated approach in this respect for re-appreciation of an
appeal filed by the Government through the various departments
against the order of acquittal.
10. In view of such circumstances, this Court finds
that in the instant appeal, delay is required to be condoned.
11. Accordingly, delay in filing the appeal by 98 days
is condoned.
12. Leave to prefer an appeal by the Government is
allowed under the facts and circumstances of the case and the
appeal was taken for hearing on merit.
13. This is an appeal under Section 378 (1) read with
Section 378 (3) of the Code of Criminal Procedure, 1973 against
the order of acquittal passed by the learned Special Judge,
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
Vigilance, Patna in Special Case No. 52 of 2014, arising out of
Economic Offences Unit Case No. 31 of 2014, acquitting the
respondent of the charges under Section 7/13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988.
14. One Padmavati Kumari filed a written complaint
before the concerned authority at Economic Offences Unit on
15th of July, 2014, alleging, inter alia, that she used to work as
Anganwari Sevika of Hamidnagar Panchayat within the
jurisdiction of Goh Block, in the district of Aurangabad. On 7 th
of July, 2014, the CDPO, Goh inspected the centre, managed by
the informant. On the next date, the personal driver of the
CDPO, namely, Rupesh, called the informant from his mobile
phone and informed her that Aruna Kumari, the CDPO had
demanded Rs. 10,000/- as bribe on the ground that the informant
was not able to run her centre properly and if the bribe money
be not paid, she would be terminated for being failed to manage
the affairs of the centre properly.
15. On receipt of such complaint, the Officers in
Economic Offence Unit entrusted one Rajesh Narayan Verma,
Inspector to verify the truthfulness of the complaint. On
verification, the concerned officer submitted his report on 17th of
July, 2014, communicating that the complaint was prima facie
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
genuine and the informant would deliver the bribe money to the
respondent on 18th of July, 2014 at 01.00 p.m. The Officers in
Economic Offence Unit constituted a trap team and prepared
pre-trap memorandum. The informant was asked to give a sum
of Rs. 10,000/-, which would be tendered to the respondent. The
money was mixed with Phenolphthalein powder. At about 01.15
p.m., the informant went to the chamber of the accused and
handed over the said currency notes consisting of Rs. 10,000/-
to the accused. The accused accepted the said money and put the
same inside a black purse. Immediately, the trap team entered
into the house and caught hold of the accused and recovered the
money from her purse. Her hands and the purse were soaked in
a solution of Sodium Carbonate, which turned pink. Thereafter,
the money, the purse and the solution of sodium Carbonate were
seized, following the rules and procedure of seizure and post-
trap memorandum was prepared. Subsequently, the accused was
arrested and taken into custody. The Economic Offence Unit
took up the case for investigation and on completion of
investigation, submitted charge-sheet against the accused /
respondent under Section 7/13(2) read with Section 13(1)(d) of
the Prevention of Corruption Act, 1988. The case was
transferred to the Court of the learned Special Judge, Vigilance,
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
Patna for trial. The learned Special Judge took cognizance of the
offence; charge was framed against the accused under the
above-mentioned penal provisions; and trial of the case
commenced. During trial, the prosecution examined 12
witnesses. Pre-trap memorandum, post-trap memorandum,
forensic evidence and other documents were marked exhibits
which I propose to discuss in detail while discussing the
evidence adduced by the prosecution.
16. The learned Trial Judge on careful consideration
of the evidence on record and submissions made by the learned
counsels on behalf of the prosecution and defence held that
prosecution failed to bring home the charge against the accused
and he recorded an order of acquittal.
17. Hence, the instant appeal.
18. Mr. Vishwanath Prasad Singh, learned Sr.
Advocate, ably assisted by Ms. Soni Srivastava, learned
Advocate, submits at the outset that what weighed for the Trial
court to hold in support of the accused is that the informant
turned hostile in course of her evidence and said that she only
gave Rs. 7,000/- instead of Rs. 10,000/- and that she was not
personally approached by the accused demanding or accepting
bribe directly. The learned Trial Court also held that there was
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
not pending work of the informant before the accused and
therefore there was no motive for demanding bribe from her. It
is also recorded by the Trial Court that there were material
discrepancies in the pre-trap and post-trap memorandum. The
prosecution failed to produce seized bribe money on the plea
that it was destroyed by rats and rodents in Police Malkhana.
Even the black purse of the accused was not produced for
identification. Lastly, no independent witness confirmed the
demand, acceptance and recovery of the bribe money.
19. The learned Sr. Advocate on behalf of the
appellant submits that the complainant was declared hostile by
the prosecution when she stated that she only gave Rs. 7,000/-
to the officer of Economic Offence Unit to be used to deliver as
bribe money and not a sum of Rs. 10,000/-.
20. In this regard, it is contended by the learned Sr.
Advocate on behalf of the appellant that observation of the Trial
Court that the evidence of the informant cannot be relied upon
on the ground that she was declared hostile, is misconceived for
the reason that if the same is accepted, there cannot be any case
where appeal against acquittal can be allowed and the error
committed by the Trial court can be corrected.
21. In order to substantiate his contention, the learned
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Sr. Advocate on behalf of the appellant takes me to the evidence
adduced by the witnesses on behalf of the prosecution. It is
submitted by him that in order to apprehend a person who is
alleged to have accepted bribe, the established process of
investigation is that the Economic Offence Unit prepares pre-
trap memo. On the basis of pre-trap memo, the informant is sent
to the accused to deliver bribe and immediately after such
money is paid to the accused, the accused is caught red-handed
by the trap team.
22. The prosecution by adducing adequate evidence
has proved the pre-trap and post-trap memo, recovery of bribe
money from the purse of the accused and the forensic report,
which proves that the accused accepted money by her hand and
had kept the same inside a black coloured purse.
23. In this regard, learned Sr. Advocate appearing on
behalf of the appellant relies on paragraph 18 of judgment,
delivered in the case of Nayankumar Shivappa Waghmare v.
State of Maharashtra, reported in (2015) 11 SCC 213, wherein
it is observed by the Hon'ble Supreme Court that the Trial Court
while appreciating the prosecution evidence completely ignored
the presumption required to be taken under sub-section 1 of
Section 20 of the Prevention of Corruption Act, 1988. Sub-
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
section 1 of Section 20 provides that where, in any trial of an
offence punishable under Section 7 or Section 11 or 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, as the case may be, without consideration or for a
consideration which he knows to be inadequate.
24. The learned Trial Court failed to take the
presumption of Section 20 of the said Act only on the ground
that the informant told that she gave Rs. 7,000/- to the officers
constituting trap and not a sum of Rs. 10,000/-.
25. The learned Sr. Advocate on behalf of the
appellant next submits that the learned Trial Judge erred in
relying on the evidence of the complainant where she stated that
the accused never demanded any gratification from the
complainant. This statement made by the complainant on oath
ought to have been treated as a minor discrepancy taking
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together the evidence of P.W. 3/ Rajesh Narayan Verma, who
went to the office of the accused to verify the allegation made
by the informant in her complaint. It is stated by the P.W.3 that
on 17th of July, 2014, he along with the informant went to the
office of CDPO, Goh-1 Block at about 01.30 p.m. It was
informed from her office that the CDPO left her office for her
residence situated at Daudnagar. They reached Daudnagar in the
house of the accused at about 03.00 p.m. The informant
introduced P.W. 3 as her brother in law. In presence of P.W. 3,
the accused demanded illegal gratification of Rs. 10,000/ from
the complainant. The Trial Court did not consider the said
evidence of P.W. 3 while recording the order of acquittal in
favour of the accused.
26. Referring to the decision of Vinod Kumar v. State
of Punjab, reported in (2015) 3 SCC 220, It is submitted by the
learned Sr. Advocate for the appellant that the learned Trial
Judge did not assign any reason as to why he failed to consider
the evidence of the trap team. In fact, nothing has been put to
the trap witnesses during cross-examination to elicit that they
were anyway personally interested to get the appellant
convicted.
27. In Vinod Kumar (supra), it was urged that once
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the informant has resiled totally from his earlier statement, no
conviction can be recorded on the basis of the trap witness.
28. In Hazari Lal v. State (Delhi Administration),
reported in (1980) 2 SCC 390, a Police Constable was convicted
under Section 5(2) of the Prevention of Corruption Act, 1947 on
the allegation that he demanded and received Rs. 60/- from the
informant who was examined as P.W. 3 and had resiled from his
previous statement and was declared hostile by the prosecution.
The official witnesses had supported the prosecution version.
Keeping in mind the evidence of the official witnesses, the Trial
Court had convicted the appellant therein, which was affirmed
by the High Court. A contention was raised that in the absence
of any direct evidence to show that Police Constable demanded
or accepted bribery, no presumption under Section 4 of the 1947
Act can be drawn merely on the strength of recovery of the
marked currency notes from the said Constable. The Hon'ble
Supreme Court observed as follows:-
"10. ........ It is not necessary that
the passing of money should be proved by
direct evidence. It may also be proved by
circumstantial evidence. The events which
followed in quick succession in the present case
lead to the only inference that he money was
obtained by the accused from P.W.3. Under
Section 114 of the Evidence Act the Court may
presume the existence of any fact which it
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
thinks likely to have happened, regard being
had to the common course of natural events,
human conduct and public and private
business, in their relation to facts of the
particular case. One of the illustrations to
Section 114 of the Evidence Act is that the
court may presume that a persons who is in
possession of the stolen goods, soon after the
theft, is either the thief or has received the
goods knowing them to be stolen, unless he can
account for his possession. So too, in the facts
and circumstances of the present case the
Court may presume that the accused who took
out the currency notes from his pocket and
flung them across the wall had obtained them
from P.W. 3, who a few minutes earlier was
shown to have been in possession of the notes.
Once we arrive at the finding that the accused
had obtained the money from P.W. 3, the
presumption under Section 4(1) of the
Prevention of Corruption Act is immediately
attracted."
29. The learned Sr. Advocate for the appellant
further submits that the Hon'ble Supreme Court in Rama Devi
v. The State of Bihar & Ors., reported in 2024 (4) PLJR 240,
placing reliance on the earlier judgment held that the principle
"falsus in uno, falsus in omnibus" is not applicable in the
adjudication process of criminal case in the matter of
appreciation of evidence adduced by the witnesses. The above
principle does not occupy the status of rule of law. It is merely a
rule of caution which involves the questions of the weight of
evidence that a Court may apply in the given set of
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
circumstances. In cases where a witness is found to have given
unreliable evidence, it is the duty of the Court to carefully
scrutinize the rest of the evidence, sifting the grain from the
chaff. The reliable evidence can be relied upon especially when
the substratum of the prosecution case remains intact. The Court
must be diligent in separating truth from falsehood. Only in
exceptional circumstances, when truth and falsehood are so
inextricably connected as to make it indistinguishable, should
the entire body of evidence be discarded.
30. In the instant case, the de facto complainant
deposed as P.W. 5. In her evidence, she stated that on 7th of July,
2014, she was taking training of vaccination at Goh Health
Centre. On that date, the CDPO visited the Anganwari Centre,
run by the de facto complainant. In the evening, she received a
phone call of the Driver of the CDPO. He told the informant
that the CDPO had called her on the next date. She went to the
office of the CDPO and met her. The CDPO told her that she
could not run her Anganwari Centre in proper manner and she
might cancel her Centre. When the informant requested the
CDPO not to take such extreme step as she was taking training
on 7th of July, 2014 at Block Health Centre, the CDPO told to
meet her Driver. Her Driver demanded a sum of Rs. 10,000/-.
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
Thereafter, she lodged a complaint before the Economic Offence
Unit. The said complaint was marked as Exhibit-4. Then one
Rajesh Kumar took her to CDPO office for verification of the
statement made by her in the complaint. When they met the
CDPO, she again demanded a sum of Rs. 10,000/-. Thereafter, it
is stated by her that she was asked to bring a sum of Rs.
10,000/- to the office of Economic Offence Unit. She brought a
sum of Rs. 7,000/- and handed over the said sum to the officer at
Economic Offence Unit. She again went to the office of
Economic Offence Unit on 17th of July, 2014 and on the next
date also her signature was taken on some papers and she was
taken to the office of the CDPO. She entered into the office of
the CDPO with Rajesh Kumar and met her. The CDPO asked
her to give money and she paid the money to her and came out
of the room. Then, immediately the officers of Economic
Offence Unit apprehended the CDPO.
31. Referring to the evidence of P.W. 5, it is
submitted by the learned Sr. Advocate appearing on behalf of
the appellant that the de facto complainant in course of her
evidence as P.W. 5 corroborated the case of the prosecution on
all material points. Incident took place in the year 2014. The
informant deposed after two years of the occurrence. It is
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
immaterial whether de facto complainant paid a sum of Rs.
7,000/- or Rs. 10,000/- to the accused. What is material is as to
whether prosecution has been able to prove that the CDPO
demanded illegal gratification from the informant and the said
gratification was paid by the informant and the accused was
immediately apprehended with bribe money by the officers of
the Economic Offence Unit constituting trap.
32. The learned Sr. Advocate appearing on behalf
of the appellant further submits that the evidence of the trap
witnesses as well as the evidence of the verifier is entirely
trustworthy and they corroborated the prosecution case to the
satisfaction of the Court. The fact that the trap witnesses are
Police Officers is not sufficient to insist on corroboration by any
independent witness or to throw them away without
consideration. There is no rule of prudence, which has
crystallized into a rule of law, nor indeed any rule of prudence
which requires that evidence of such officers should be treated
on the same footing as the evidence of accomplicers and there
should be insistence on corroborations. In the facts and
circumstances of a particular case, a Court may be disinclined to
act upon the evidence of such an officer without corroboration,
but equally in the facts and circumstances of another case, the
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Court may unhesitatingly accept the evidence of such an officer.
It is all a matter of appreciation of evidence and on such
matters, there can be no hard and fast rule, nor can there be any
procedural guidance. In support of his argument, the learned Sr.
Advocate for the appellant refers to the decision of Hazari Lal
(supra).
33. Mr. Y. V. Giri, learned Senior Counsel on behalf
of the respondent, on the other hand, argues that the prosecution
failed to establish any motive behind the allegation of demand
of illegal gratification from the informant. No evidence was on
record to prove that there was some pending work of the
informant before the accused and the accused had administrative
control over the informant. Prosecution also failed to produce
any evidence that the accused in his position as CDPO had the
authority to terminate the job of the petitioner as Aganwari
Sevika or that she could terminate the centre of which the
informant was in-charge. Therefore, the fulcrum of the
prosecution case that the accused demanded bribe with the
threat of cancellation of informant's centre has not been proved
during trial of the case.
34. Secondly, it is urged by the learned Senior
Counsel on behalf of the respondent that the complainant in her
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evidence as P.W. 5 turned hostile and admitted that she only
gave Rs. 7,000/- instead of Rs. 10,000/- and that she never saw
the accused demanding or accepting money directly. It was the
prosecution case that the driver of the respondent demanded a
sum of Rs. 10,000/- from the informant in the name of the
respondent. The investigating agency did not take any attempt to
examine the said driver of the respondent in course of
investigation. No attempt was taken to record his statement
under Section 164 of the Cr.P.C. Therefore, the very ingredient
of offence relating to demand of illegal gratification was not
proved during trial.
35. Thirdly, the learned Senior Counsel on behalf
of the respondent has pointed out showing the evidence adduced
by the witnesses that the black purse which allegedly contained
the bribe money, was not produced in Court. It is the case of the
prosecution that the seized currency notes were kept in a paper
packet in police Malkhana. However, during trial, the seized
money could not be produced by the prosecution on the ground
that the envelop, containing money, was destroyed by rats and
rodents.
36. It is also contended on behalf of the respondent
that no independent witness confirmed demand, acceptance and
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
recovery of the bribe money from the possession of the
respondent.
37. The learned Senior Counsel on behalf of the
respondent also submits that the prosecution failed to produce
any independent witness of apprehension of the accused while
accepting illegal gratification. Prosecution, however, relied
heavily on the evidence of P.W. 3 who is a Police Officer
attached to EOU and accompanied the informant to verify her
statement made in the complaint. In his evidence, he stated that
he did not hear the accused demanding money. He also did not
see her accepting illegal gratification. He was standing near the
door of the room of the respondent's office and as soon as the
informant came out of the room, he gave signal to the trap team
and they apprehend the accused.
38. Learned Senior Counsel on behalf of the
respondent submits that P.W. 1, P.W. 2, P.W. 6, P.W. 8 and P.W.
9 are the members of trap team who apprehended the accused.
On careful scrutiny of their evidence, one finds that none of
them directly witness the accused demanding or accepting the
bribe. They only saw some money being recovered from a black
purse which was not produced in Court.
39. The learned Senior Advocate on behalf of the
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respondent further submits that the forensic report, proved by
P.W. 10 (Exhibit 8) confirmed presence of Phenolphthalein
powder on the accused hands and purse. However, the FSL did
not include scientific data supporting the said findings.
40. It is also submitted by the learned Senior
Counsel on behalf of the respondent relying on the decision in
the P.S. Rajya v. State of Bihar, reported in (1996) 9 SCC 1 that
when the criminal charge and the charge in disciplinary
proceeding which was initiated against the respondents were
based on same allegation and same set of evidence and the
department proceeding ended in favour of the respondent,
criminal charge on the same set of evidence cannot stand.
41. On the same issue, the learned Senior Advocate
for the respondent refers to another decision of the Apex Court
in the case of Ashoo Surendranath Tewari v. CBI & Anr.,
reported in (2020) 9 SCC 636. Paragraph Nos. 8 to 13 of the
said judgment are relevant and are quoted below:-
"8. A number of judgments have
held that the standard of proof in a departmental
proceeding, being based on preponderance of
probability is somewhat lower than the standard
of proof in a criminal proceeding where the case
has to be proved beyond reasonable doubt.
In P.S. Rajya v. State of Bihar [P.S. Rajya v. State
of Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri)
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
897] , the question before the Court was posed
as follows: (SCC pp. 2-3, para 3)
"3. The short question that arises for
our consideration in this appeal is whether the
respondent is justified in pursuing the
prosecution against the appellant under Section
5(2) read with Section 5(1)(e) of the Prevention
of Corruption Act, 1947 notwithstanding the fact
that on an identical charge the appellant was
exonerated in the departmental proceedings in
the light of a report submitted by the Central
Vigilance Commission and concurred by the
Union Public Service Commission."
9. This Court then went on to state:
(P.S. Rajya case [P.S. Rajya v. State of Bihar,
(1996) 9 SCC 1 : 1996 SCC (Cri) 897] , SCC p.
5, para 17)
"17. At the outset we may point out
that the learned counsel for the respondent could
not but accept the position that the standard of
proof required to establish the guilt in a criminal
case is far higher than the standard of proof
required to establish the guilt in the
departmental proceedings. He also accepted that
in the present case, the charge in the
departmental proceedings and in the criminal
proceedings is one and the same. He did not
dispute the findings rendered in the departmental
proceedings and the ultimate result of it."
10. This being the case, the Court then
held: (P.S. Rajya case [P.S. Rajya v. State of
Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri) 897] ,
SCC p. 9, para 23)
"23. Even though all these facts
including the report of the Central Vigilance
Commission were brought to the notice of the
High Court, unfortunately, the High Court took a
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
view [Prabhu Saran Rajya v. State of Bihar,
Criminal Miscellaneous No. 5212 of 1992, order
dated 3-8-1993 (Pat)] that the issues raised had
to be gone into in the final proceedings and the
report of the Central Vigilance Commission,
exonerating the appellant of the same charge in
departmental proceedings would not conclude
the criminal case against the appellant. We have
already held that for the reasons given, on the
peculiar facts of this case, the criminal
proceedings initiated against the appellant
cannot be pursued. Therefore, we do not agree
with the view taken by the High Court as stated
above. These are the reasons for our order dated
27-3-1996 for allowing the appeal and quashing
the impugned criminal proceedings and giving
consequential reliefs."
11. In Radheshyam Kejriwal v. State of
W.B. [Radheshyam Kejriwal v. State of W.B.,
(2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] ,
this Court held as follows: (SCC pp. 594-96,
paras 26, 29 & 31)
"26. We may observe that the standard
of proof in a criminal case is much higher than
that of the adjudication proceedings. The
Enforcement Directorate has not been able to
prove its case in the adjudication proceedings
and the appellant has been exonerated on the
same allegation. The appellant is facing trial in
the criminal case. Therefore, in our opinion, the
determination of facts in the adjudication
proceedings cannot be said to be irrelevant in
the criminal case. In B.N. Kashyap [B.N.
Kashyap v. Crown, 1944 SCC OnLine Lah 46 :
AIR 1945 Lah 23] the Full Bench had not
considered the effect of a finding of fact in a civil
case over the criminal cases and that will be
evident from the following passage of the said
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
judgment: (SCC OnLine Lah: AIR p. 27)
'... I must, however, say that in
answering the question, I have only referred to
civil cases where the actions are in personam
and not those where the proceedings or actions
are in rem. Whether a finding of fact arrived at
in such proceedings or actions would be relevant
in criminal cases, it is unnecessary for me to
decide in this case. When that question arises for
determination, the provisions of Section 41 of the
Evidence Act, will have to be carefully
examined.'
***
29. We do not have the slightest
hesitation in accepting the broad submission of
Mr Malhotra that the finding in an adjudication
proceeding is not binding in the proceeding for
criminal prosecution. A person held liable to pay
penalty in adjudication proceedings cannot
necessarily be held guilty in a criminal trial.
Adjudication proceedings are decided on the
basis of preponderance of evidence of a little
higher degree whereas in a criminal case the
entire burden to prove beyond all reasonable
doubt lies on the prosecution.
***
31. It is trite that the standard of proof
required in criminal proceedings is higher than
that required before the adjudicating authority
and in case the accused is exonerated before the
adjudicating authority whether his prosecution
on the same set of facts can be allowed or not is
the precise question which falls for
determination in this case."
12. After referring to various
judgments, this Court then culled out the ratio of
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
those decisions in para 38 as follows:
(Radheshyam Kejriwal case [Radheshyam
Kejriwal v. State of W.B., (2011) 3 SCC 581 :
(2011) 2 SCC (Cri) 721] , SCC p. 598)
"38. The ratio which can be culled out
from these decisions can broadly be stated as
follows:
(i) Adjudication proceedings and
criminal prosecution can be launched
simultaneously;
(ii) Decision in adjudication
proceedings is not necessary before initiating
criminal prosecution;
(iii) Adjudication proceedings and
criminal proceedings are independent in nature
to each other;
(iv) The finding against the person
facing prosecution in the adjudication
proceedings is not binding on the proceeding for
criminal prosecution;
(v) Adjudication proceedings by the
Enforcement Directorate is not prosecution by a
competent court of law to attract the provisions
of Article 20(2) of the Constitution or Section
300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication
proceedings in favour of the person facing trial
for identical violation will depend upon the
nature of finding. If the exoneration in
adjudication proceedings is on technical ground
and not on merit, prosecution may continue; and
(vii) In case of exoneration, however,
on merits where the allegation is found to be not
sustainable at all and the person held innocent,
criminal prosecution on the same set of facts and
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
circumstances cannot be allowed to continue, the
underlying principle being the higher standard
of proof in criminal cases."
13. It finally concluded: (Radheshyam
Kejriwal case [Radheshyam Kejriwal v. State of
W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri)
721] , SCC p. 598, para 39)
"39. In our opinion, therefore, the
yardstick would be to judge as to whether the
allegation in the adjudication proceedings as
well as the proceeding for prosecution is
identical and the exoneration of the person
concerned in the adjudication proceedings is on
merits. In case it is found on merit that there is
no contravention of the provisions of the Act in
the adjudication proceedings, the trial of the
person concerned shall be an abuse of the
process of the court."
42. It is also submitted by the learned Senior
Counsel on behalf of the respondent placing reliance on Phula
Singh v. State of Himachal Pradesh, reported in (2014) 4 SCC
9 that only in exceptional cases where there are compelling
circumstances and the judgment under appeal is found to be
perverse, the appellate court can interfere with the order of
acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the
trial court's acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is
possible should be avoided, unless there are good reasons for
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
interference.
43. In the instant case, according to the learned
Senior Counsel for the respondent, there is no ground for
interference because the prosecution hopelessly failed to bring
home the charge against the respondent.
44. In Raja & Ors. v. State of Karnataka, reported
in (2016) 10 SCC 506, the Hon'ble Supreme Court had occasion
to deal with the scope of interference with a judgment of
acquittal in view of the ratio laid down in Sunil Kumar
Sambhudayal Gupta (Dr.) & Ors. v. State of Maharashtra,
(2010) 13 SCC 657 that if two views are possible, the Appellate
Court could not ordinarily interfere therewith though its view
may appear to be the more probable one. The appellate court is
under an obligation to consider and identify the error in the
decision of the trial court and then to decide whether the error is
gross enough to warrant interference. The Appellate Court is not
expected to merely substitute its opinion for that of the trial
court and that it has to exercise its discretion very cautiously to
correct an error of law or fact, if any, and significant enough to
warrant reversal of the verdict of the Trial Court.
45. According to the learned Senior Counsel for the
respondent, in the instant case, prosecution hopelessly failed to
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
prove that the accused demanded illegal gratification.
46. Referring to a decision of the Hon'ble Supreme
Court in State of Punjab v. Madan Mohan Lal Verma, reported
in 2013 (14) SCC 153, It is submitted by the learned Senior
Advocate for the respondent that in order to prove a charge
under the Prevention Of Corruption Act, 1988, satisfactory
evidence with regard to demand of illegal gratification is sine
qua non. Mere recovery of tainted money is not sufficient to
convict the accused when substantive evidence in the case is not
reliable, unless there is evidence to prove payment of bribe or to
show that the money was taken voluntarily as a bribe. Mere
receipt of the amount by the accused is not sufficient to fasten
guilt, in the absence of any evidence with regard to demand and
acceptance of the amount as illegal gratification. Hence, the
burden rests on the accused to displace the statutory
presumption raised under Section 20 of the Act of 1988 by
bringing on record evidence, either direct or circumstantial, to
establish with reasonable probability that the money was
accepted by him/her, other than as a motive or reward as
referred to in Section 7 of the Act 1988. While invoking the
provisions of Section 20 of the Act, the Court is required to
consider the explanation offered by the accused, if any, only on
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
the touchstone of preponderance of probability and not on the
touchstone of proof beyond all reasonable doubt. However,
before the accused is called upon to explain how the amount in
question was found in his possession, the foundational facts
must be established by the prosecution.
47. Section 7 of the Prevention of Corruption Act,
1988 deals with the offences relating to public servant being
bribed. Section 7 runs thus:-
"7. Offence relating to public servant
being bribed - Any public servant who, -
(a) Obtains or accepts or attempts to
obtain from any person, an undue advantage,
with the intention to perform or cause
performance of public duty improperly or
dishonestly or to forbear or cause forbearance
to perform such duty either by himself or by
another public servant; or
(b) Obtains or accepts or attempts to
obtain, an undue advantage from any person as
a reward for the improper or dishonest
performance of a public duty or for forbearing
to perform such duty either by himself or
another public servant; or
(c) Performs or induces another
public servant to perform improperly or
dishonestly a public duty or to forbear
performance of such duty in anticipation of or
in consequence of accepting an undue
advantage from any person, shall be
punishable with imprisonment for a term which
shall not be less than three years but which
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
may extend to seven years and shall also be
liable to fine."
48. It is held by the Hon'ble Supreme Court in
Krishan Chander v. State of Delhi, reported in 2016 (3) SCC
108 that demand of illegal gratification is a sine qua non for
constitution of an offence under the Prevention of Corruption
Act. Mere production of tainted money recovered from the
accused along with positive result of phenolphthalein test, sans
the proof of demand of bribe, is not enough to establish the guilt
of a charge under Section 7 of the Act, made against the
accused.
49. In the instant case, it is found from the written
complaint as well as evidence of P.W. 5, de facto complainant,
that on 7th of July, 2014, when the informant went to attend a
training programme in Block Health Centre on vaccination, the
accused, who is a CDPO found that the informant was not
capable of running Anganwari Centre properly and she would
terminate the centre. When the informant prayed for her mercy,
the CDPO told her to talk to her driver. Then her driver
demanded a sum of Rs. 10,000/-. Thus, there was no direct
demand of illegal gratification by the accused.
50. At this juncture, a question arises as to whether
as per the requirement of Section 7, demand of illegal
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
gratification was required to be made by the accused herself or
the accused may employ another person to demand the said
money. In the instant case, it is contended on behalf of the
appellant that the alleged demand by the driver of the accused
ought to have been considered as the demand made by the
accused herself.
51. In this regard, the appellant relied heavily on
the evidence of P.W. 3, who was posted as an Inspector in
Economic Office Unit on 17th of July, 2014. It is found from his
evidence that on 16th of July, 2014, under the instruction of the
Superintendent of Police, Economic Offence Unit, he went to
the office of CDPO along with the informant and reached there
at about 01.30 p.m. He found the CDPO absent in the office.
Then, they went to her residence. They met the accused in her
house. The informant requested her not to make any adverse
comment in the inspection book against her centre. At that time,
the accused demanded a sum of Rs. 10,000/- as illegal
gratification. The informant agreed to pay Rs. 2,000/- but the
accused did not agree. Then, the informant agreed to meet the
demand of the accused and told her that she would come on 18 th
of July, 2014 at about 01.00 p.m. Subsequent incident of
preparation of pre-trap memo, apprehension of the accused
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
laying trap with bribe money, arrest of the accused etc. are on
record being part of the evidence adduced by the witnesses.
52. At this stage, a question naturally arises as to
whether initial demand of Rs. 10,000/- by the driver of the
accused belies the prosecution case of demand of illegal
gratification by the accused. In this regard, this Court finds that
P.W. 3 was cross-examined at length by learned defense counsel.
He is a Police Officer having no interest in the outcome of the
case. It is not even suggested that P.W. 3 was inimical against
the accused. There is no reason for P.W. 3 that he would adduce
false evidence. From his evidence, it is clear that the accused
demanded a sum of Rs. 10,000/- from the informant. Thus,
demand of illegal gratification by the accused for dishonest
performance of public duty, i.e., to give a false report in the
inspection book of Anganwari Centre, is proved beyond any
shadow of doubt on the basis of evidence of P.W. 3 and P.W. 5.
53. P.W. 5 lodged the complaint before the
Economic Offence Unit only after she was illegally demanded
to pay bribe of a sum of Rs. 10,000/-. It is true that the
prosecution failed to produce the currency notes that were
seized from the possession of the accused on the ground that the
envelop containing seized money was destroyed by rats and
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
rodents. But during trial, P. S. Malkhana register was produced
and proved as exhibit. In Malkhana register, receipt of an
envelop containing bribe money in connection with the instant
case was duly recorded. Thus, there is no doubt that seized
money was produced in Malkhana register but as a result of
improper condition of Malkhana and lack of up to date
preservation system, the envelop along with currency notes
were destroyed by rodents. For destruction of the seized money,
which was recovered from the possession of the accused, the
prosecution case cannot be held to be not proved. In many
cases, seized articles may not be produced during trial for one
reason or the other. Even the subject matter of offence,
sometimes cannot be recovered by the investigating agency in
many cases, corpus delicto, is destroyed by the offenders. Even
under such circumstances an accused can be convicted if other
surrounding circumstances point at the guilt of the accused
without any reasonable doubt.
54. In the instant case, the accused was
apprehended immediately after she received illegal gratification.
The bribe money was recovered from the purse of the accused.
Post trap memo has been marked exhibit. From the post trap
memo, it is found that when the hands of the accused were
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
washed, the water turned pink as a result of Phenolphthalein
powder mixed in the hands of the accused when she received
the money and had kept it inside the purse. The purse was also
washed and the water turned pink. The said water was seized
and forensic report confirms presence of Sodium Carbonate and
Phenolphthalein powder in the water.
55. The learned Sr. Advocate for the respondent has
urged with great stress that the prosecution failed to prove that
the accused was given bribe of Rs. 10,000/-, when the de facto
complainant herself told that she gave seven numbers of
currency notes of Rs. 1,000/- denomination. Thus, the Economic
Offence Unit had Rs. 7,000/- in their hand and therefore the
story of demand of Rs. 10,000/- does not arise at all.
56. In the instant case, it is for the prosecution to
prove that the accused demanded illegal gratification and she
accepted the same. It is immaterial whether it was Rs. 7,000/- or
Rs. 10,000/-. The evidence on record unerringly shows that the
accused demanded and obtained illegal gratification.
57. Section 13 (1) (d) speaks about criminal
misconduct by public servant if he (i) by corrupt or illegal
means, obtains for himself or for any other person any valuable
thing or pecuniary advantage or (b) if he intentionally enriches
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
himself illicitly during the period of his office.
58. In order to prove the charge under Section
13(1)(d), it is not necessary for the prosecution to prove that the
accused demanded illegal gratification.
59. The decision of the Hon'ble Supreme Court in
C.K. Damodaran Nair v. Govt. of India, reported in (1997) 9
SCC 477 may be relied upon in this regard.
60. On careful perusal of the evidence on record,
this Court finds that the prosecution was able to produce
satisfactory evidence to prove payment of bribe and to show that
the accused has voluntarily accepted the money knowing it to be
bribe. Therefore, the learned trial Judge committed error in
recording order of acquittal in favour of the accused.
61. In view of the above discussion I hold on
careful consideration of evidence on record as well as the
submission made by the learned Sr. Counsels for the parties that
the appellant has been able to bring home the charge against the
accused under Section 7 and Section 13(1)(d) of the Prevention
of Corruption Act.
62. In this regard, this Court records that it is
immaterial to consider that the accused is entitled to get benefit
of doubt on the ground that departmental proceeding against her
Patna High Court G.APP.(SJ) No.18 of 2019 dt.19-02-2025
was dismissed.
63. For the offence punishable under Section 7 of
the Prevention of Corruption Act, the respondent shall be
punished with imprisonment for a term which shall not be less
than three years but which may extend to seven years and was
also liable to fine.
64. For the offence punishable under Section 13(1)
(d), the respondent shall be punishable with imprisonment for a
term which shall not be less than four years but which may
extend to 10 years and shall also be liable to fine.
65. The respondent is, therefore, convicted
accordingly.
(Bibek Chaudhuri, J)
skm/-
AFR/NAFR AFR
CAV DATE 22.01.2025
Uploading Date 19.02.2025
Transmission Date
