Rajasthan High Court

Pramod Singh Chauhan vs State on 26 July, 2022

Bench: Mahendar Kumar Goyal

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               S.B. Criminal Appeal No. 219/1987

Pramod Singh Chauhan S/o Late Shri Hari Singh Chauhan,
resident of 1B/107, Shiv Shakti Colony, Jaipur
                                                                     ----Appellant
                                    Versus
State of Rajasthan
                                                                   ----Respondent

For Appellant(s)          :     Shri Sandeep Jain
For Respondent(s)         :     Shri   Babu            Lal       Nasuna,   Public
                                Prosecutor



     HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                                 Judgment

26/07/2022

This criminal appeal is directed against the judgement dated

28.5.1987 passed by the learned Special Judge, ACD Cases, Jaipur

in Special Criminal Case No.14/1983 whereby, the accused-

appellant has been convicted and sentenced as under:

"Under Section 161 of the IPC-One year's rigorous imprisonment with a fine of Rs.200 and in default of payment of fine to further undergo one month's rigorous imprisonment.

Under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947- One year's rigorous imprisonment with a fine of Rs.200 and in default of payment of fine to further undergo one month's rigorous imprisonment.

Both the substantive sentences shall run concurrently."

The facts in brief are that the complainant Shri Ghaus

Mohammad lodged a written report dated 19.2.1983 with the

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Superintendent of Police, ACD, Jaipur alleging therein that the

appellant, an employee in the State Rehabilitation Department,

has demanded a sum of Rs.500 as illegal gratification for getting a

case decided in his favour. It was stated therein that after much

persuasion, the appellant agreed to receive a sum of Rs.100 on

19.2.1983. As per the prosecution case, the appellant was caught

red handed on 19.2.1983 accepting the illegal gratification.

Charges under Section 161 IPC and Section 5(1)(d) and 5(2) of

the Prevention of Corruption Act, 1947 were framed against the

appellant. The learned trial court has, vide its judgement dated

28.5.1987, convicted and sentenced the appellant as stated

hereinabove.

Assailing the judgement, learned counsel for the appellant

contended that in this case, neither the demand could be

established, nor it could be established by the prosecution that

any work of the complainant was pending with the appellant at the

relevant time. Drawing attention of this Court towards the

statements of various prosecution witnesses, the evidence in

defence and the documentary evidence available on record,

learned counsel contended that there is no evidence of demand of

illegal gratification by the appellant except the bald allegation

levelled by the complainant which is full of contradictions on the

aspect as to when the demand was made by the appellant for the

first time. Referring to the order sheet dated 15.2.1983 (Ex.P7),

learned counsel submitted that the objection filed by the

complainant along with his father was already rejected by the

competent authority much before the date of alleged demand and

hence, the whole basis of the allegation that he demanded illegal

gratification to decide the case in complainant's favour, did not

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survive. Learned counsel submitted that, as a matter of fact, the

complainant has refunded a loan advanced by the appellant to

him, which was his defence from the very inception he was caught

with money. He, therefore, prayed that the appeal be allowed and

the judgement of conviction and sentence dated 28.5.1987 be

quashed and set aside. He, in support of his submissions, has

relied on the following judgements:

1. P. Satyanarayana Murthy vs. The Dist. Inspector of Police &

Ors.-(2015) AIR (SC) 3549;

2. K. Shanthamma vs. The State of Telangana-(2022) 4 SCC 574;

2. Darshan Lal vs. the Delhi Administration-(1974) 3 SCC 595;

Per contra, learned Public Prosecutor opposing the prayer

submitted that the judgment of conviction and sentence is based

on appreciation of the material on record. He submitted that the

appellant was caught red handed accepting the illegal gratification

and his defence that he received the amount of Rs.100 from the

complainant towards refund of the loan advanced by him, has

rightly been rejected by the learned trial court. He, therefore,

prayed for dismissal of the appeal.

Heard. Considered.

As per the prosecution case, as revealed from the FIR

(Ex.P11), the appellant has made demand of illegal gratification

on 18.2.1983 only. However, the complainant-Ghaus Mohammad

during his deposition as PW2 has stated that the demand was

raised by the appellant on 29.11.1982. In the same breath, he

further stated that demand was reiterated on 18.2.1983 and

19.2.1983. During his cross examination, deviating from his

deposition in examination in chief, he has stated that the demand

was raised by the appellant on 17.2.1983 also admitting that this

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fact is not mentioned in the written report (Ex.P2) submitted by

him. Indisputably, as per the prosecution case, no third person

was present at the time the appellant allegedly made demand of

illegal gratification. In these circumstances, the prosecution has

failed to establish true genesis of the case i.e., as to when the

appellant has demanded illegal gratification from the complainant.

Even on 19.2.1983, when the appellant was caught with an

amount of Rs.100, as per the prosecution case, none including the

independent decoy witnesses heard what transpired between the

appellant and the complainant before handing over the subject

amount. While, Shri Mool Chand (PW4), one of the independent

decoy witness, has stated in his examination in chief that since he

was about 15 feet away from the appellant and the complainant,

he did not hear their conversation, during his cross examination,

he has stated that the complainant had handed over the money to

the appellant requesting him to accept the refund of loan amount.

Another independent decoy witness Shri Ramesh Chand (PW5)

has turned hostile and has not supported the prosecution story.

From the statements of police personnel of ACD Department, the

members of trap party who were accompanying the independent

decoy witnesses such as Shri Shankar Lal (PW3), Shri Puran Dutt

Pareek (PW7), Shri Ashok Kumar (PW13) and Shri Prahlad Singh

(PW14), it is apparent that none of them was present in the

vicinity of the appellant and the complainant to hear the

conversation which transpired between them on 19.2.1983 at the

time the subject amount exchanged hands.

In the aforesaid circumstances, this Court has no hesitation

in recording a finding that the prosecution has failed to establish

the demand of illegal gratification by the appellant from the

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complainant. Rather, from the statements of the prosecution

witnesses and other material on record including the statements

of the defence witnesses, this Court finds substance in the defence

of the appellant that he received the amount of Rs.100 from the

complainant as refund of the loan. This fact also stands

corroborated from the statement of prosecution witness Shri Mool

Chand, the independent decoy witness, who has categorcially

stated during the course of his cross examination that the

complainant handed over the subject amount to the appellant

requesting to accept the same towards repayment of loan. Their

Lordships of the Hon'ble Supreme Court have, in the case of S.

Satyanarayana Murthy (supra), held as under:

"20. 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

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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.

21. 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.

22. 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.

25. 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.

26. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the

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instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1)(d)(i)&(ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order of the High Court is hereby set-aside. The appellant is on bail. His bail bond stands discharged. Original record be sent back immediately.

The aforesaid legal proposition has been affirmed by the

Hon'ble Supreme Court of India in the case of K. Shanthamma

(supra).

In the present case, as already observed, since, the

prosecution has failed to establish demand of illegal gratification

by the appellant from the complainant either on 18.2.1983 or

19.2.1983 or on any other day as alleged by the complainant

during the course of his deposition as PW2, the judgement of

conviction dated 28.5.1987 cannot be sustained in the eye of law.

Resultantly, this criminal appeal is allowed. The judgement

dated 28.5.1987 passed by the learned Special Judge, ACD Cases,

Jaipur in Special Criminal Case No.14/1983 is set aside. The