Lrs. Dr Amritlal Soni vs State Of Rajasthan
2022 Latest Caselaw 9434 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 39/1990

Lrs. Dr Amritlal Soni

----Appellant Versus State Of Rajasthan

----Respondent

For Appellant(s) : Mr. B. Ray Bishnoi with Mr. Tarun Jain For Respondent(s) : Mr. Vikram Sharma, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 11/07/2022 Pronounced on 20/07/2022

1. This Criminal Appeal under Section 374 Cr.P.C has been

preferred praying for the following reliefs:-

"It is therefore prayed that appeal of the appellant may

kindly be accepted and conviction and sentenced passed by the

learned Special Judge Anticorruption case dated 18.1.90 in original

case No. 2/85 may kindly be set-aside."

2. This Criminal Appeal has been preferred against the

judgment dated 18.01.1990, whereby the learned Court below

has convicted Dr. Soni, the accused, for the offences under

Sections 5 (1) (d) read with Section 5 (2) of the Prevention of

Corruption Act, 1947 and Section 161 I.P.C., and sentenced him

for 2 years along with a fine of Rs. 2000/- in default of payment

of which he was to further undergo an imprisonment of 6

months, and 2 years imprisonment, respectively.

(2 of 15) [CRLA-39/1990]

3. Brief facts of the case as placed before this Court by

learned counsel for the appellant are that it is the version of the

prosecution that while the appellant, Dr. Amritlal Soni, was

posted as a Medical Officer, in the Government Hospital at

Mollasar, and on 03.08.1982 he examined two girls, Geeta and

Shanti to ascertain whether they had been raped, as referred to

him by the S.H.O. Bardava. And that, upon examination the

accused demanded a bribe of Rs. 2500/- from Ramchandra,

P.W. 2 Geeta's maternal uncle, in order to produce the said

medical report. And that, Ramchandra lodged a complaint with

the D.S.P. A.C.D. Nagaur, Mr. Ram Gopal, who upon the receipt

of the said complaint began arranging the trap proceedings.

And that, on 06. 08.1982 when the accused was returning from

Deedwana by Jeep, the complainant paid the amount and the

Doctor was apprehended during the trap proceedings, by the

concerned authorities. Subsequently, the charge-sheet against

the accused was filed, and during trial, the prosecution

examined 14 witnesses and 29 documents, and that the learned

Court below convicted the accused for the offences under

Sections 5 (1) (d) and 5 (2) of Prevention of Corruption Act,

1947.

4. Learned counsel for the appellant further submits that the

learned Court below has erred in passing the impugned

judgment convicting Dr. Soni as the prosecution has failed to

prove the existence of any demand for illegal gratification made

by the accused herein. Learned counsel fortifies the submission

so made, by submitting that there is a clear absence of any

such demand in the testimony given by P.W. 2, and that the

(3 of 15) [CRLA-39/1990]

testimony of P.W. 3 reveals that no money was demanded by

the accused in the Jeep. And that in the absence of such a

fundamental ingredient for the offence under Section 5 of the

Act of 1947, the conviction of the accused Dr. Soni is not

sustainable in the of eye of the law.

5. Learned counsel for the appellant also submits that as per

the statements made by P.W. 2 during his testimony, that the

money was given to one Heersingh and the accused took the

money from him and put the same in a bag, which was not

produced, but another bag, as Article 1 was produced in the

Court below.

6. Learned counsel for the appellant further submits that the

prosecution sanction acquired by the prosecution from P.W. 8

who was not a competent authority to give the sanction to

prosecute the accused Dr. Soni.

7. On the other hand, learned Public Prosecutor submits that

the learned Court below has rightly proceeded in convicting the

accused after taking into due consideration the overall facts and

circumstances of the present case, and the evidences placed

on record before it.

8. Learned Public Prosecutor further submits, that the motive

for the demand of illegal gratification is said to be established,

since the accused herein sought the bribe from the complainant,

Ramchandra, for the production of the medical report of the two

girls, Geeta and Shanti, who were examined by the Accused Dr.

Soni to ascertain whether they were raped.

9. Learned Public Prosecutor also submits that when the

concerned police authorities attempted to conduct the trap

(4 of 15) [CRLA-39/1990]

proceedings at the first instance, upon reaching Mollasar he found

out that Dr. Soni was in fact in Deedwana at the time. And that,

the complainant reached Deedwana on the subsequent day, on

06.08.1982 at about 10 a.m., he met the D.S.P. at the guest

house, who gave him the currency notes of Rs. 2,500/- and

explained to him that it was smeared with phenophthalein powder.

10. Learned Public Prosecutor further submits that two motbir

witnesses were arranged, namely Deepchand and Sevaram, for

the trap proceedings.

11. Learned Public Prosecutor also submits that alongwith Dr.

Soni, Sarpanch Mr. Hari Singh was also present in the jeep

alongwith the complainant Ramchandra Jat along side whom three

more persons sat in the jeep with him. And that, after a short

distance the complainant requested the jeep to be stopped and

got off, and told the accused Dr. Soni that he had the amount of

Rs.2500/- as sought by him to which the accused told him to give

the said amount to the Sarpanch who then accepted on his behalf

and stated that the notes were fine.

12. Learned Public Prosecutor further submits that at this point

the trap party arrived on the spot and apprehended the accused

and took them to one Dharamshala and inquired about the bribe

so collected by him. Subsequently, the hands of the accused Dr.

Soni and the Sarpanch Hari Singh were tested, and were found to

be of a reddish hue when tested with the sodium carbonate

solution. And that, the accused sought to provide an explanation

that the said amount, was in fact money that he had collected

from a bank in Deedwana, which were to be paid to the staff

members at the Government Hospital, Molasar towards their

(5 of 15) [CRLA-39/1990]

salaries. And that, the learned trial Court below rightly disbelieved

the justification given by the accused, looking to the fact that

upon being tested his hands revealed having come into contact

with the tainted currency notes, which were used during the trap

proceedings. It is, therefore, clear that the money of Rs.2500/- so

recovered from the accused and the Sarpanch, could not have

been withdrawn from the bank as per the version of the accused.

13. Learned Public Prosecutor also submits that, given the fact

that the accused herein, was a Government Doctor, the

prosecution sanction was acquired from the competent authority.

14. Learned Public Prosecutor further submits that, the learned

Court below has rightly convicted the accused, Dr. Soni for the

offences under Section 161 I.P.C. and for the offences under

Sections 5 (1) (d) and 5 (2) Prevention of Corruption Act, 1947,

after finding that the demand for illegal gratification of Rs.2500/-

made by the accused to the complainant, coupled with a recovery

of the same from him proves that he is guilty of the said offences.

15. Heard learned counsel for both parties and perused the

record of the case.

16. At the outset, this Court thinks it necessary and fit to keep

into consideration the observations made by the Hon'ble Supreme

Court, with regard to the gravity and seriousness of offences

under the Prevention of Corruption Act, 1988 and the catastrophic

effect that such offences, if left unchecked, have on a democratic

society, in State of M.P. & Ors. Vs. Ram Singh (2000) 5 SCC

88.

Relevant portion of the said judgment is reproduced as under:-

(6 of 15) [CRLA-39/1990]

"Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignancies the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society."

17. Before delving into the case at hand, the relevant Sections of

the Prevention of Corruption Act, 1988 (as it stood then)

applicable in the present case, are reproduced below for the sake

of brevity:-

"7. Public servant taking gratification other than legal remuneration in respect of an official Act Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than 1[three years] but which may extend to 2[seven years] and shall also be liable to fine.

                                          (7 of 15)                  [CRLA-39/1990]

Explanation.--

(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will when serve them, be may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification." The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remuneration." The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section"

13. Criminal, misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct, --

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person for himself or for any other person any gratification other than legal remuneration as active or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business

(8 of 15) [CRLA-39/1990]

transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public, interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[four years] but which may extend to 2[ten years] and shall also be liable to fine."

20. Presumption where public servant accepts gratification other than legal remuneration (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) or sub- section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or

(9 of 15) [CRLA-39/1990]

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."

18. This Court observes that in passing the impugned order of

conviction, the learned Court below has made the following

observations:-

18.1 In analysing whether the accused Dr. Soni made any kind of

demand for illegal gratification from the complainant, with the

motive being that he would only provide the medical report,

regarding the medical examination that he conducted on the two

girls, Geeta and Shanti, to ascertain whether they had been raped

after the complainant PW-2 Ramchandra Jat made the payment of

(10 of 15) [CRLA-39/1990]

Rs.2500/-, and in answering the said issue, the learned Court

below relied upon the testimony of PW-14 Ramgopal, the D.S.P.,

A.C.B., Nagaur. The Court also looked at the testimony of PW-13

Shankar Lal, S.H.O. Baradwa who attested the fact that the two

girls, Geeta and Shanti did lodged a report at the Police Station

Baradwa on 03.08.1982 alleging the offence of rape has been

committed upon them. It was also the testimony of the

complainant that the Sarpanch Hari Ram had counted the amount

of Rs.2500/- and informed the accused Dr. Soni that the total

amount had correctly been given by the complainant.

18.2 Therefore, the version of the complainant, that he

approached the accused Dr. Soni to retrieve the medical report, as

already discussed hereinabove, has been verified from the

testimony of the two said witnesses and has been corroborated

from the material available on record. It is also therefore, safe to

assume that the complainant had no ulterior motive to falsely

implicate the accused Government Doctor.

18.3 The learned Court below has also rightly held that the illegal

gratification of Rs.2500/- so demanded by the accused from the

complainant, has been stated in the written report, at Ex.P/9, and

has also been stated by the complainant in his testimony as PW-2.

18.4 The learned Court below proceeded to make a presumption

under Section 20 of Prevention of Corruption Act, 1947 that the

accused herein had in fact made a demand of illegal gratification

of Rs.2500/- from the complainant on the basis of the above

mentioned, and finding that the accused was unable to rebut the

said presumption with the support of cogent evidence.

(11 of 15) [CRLA-39/1990]

19. This Court observes that the aspect of recovery has been

clearly dealt with in the impugned judgment by the learned Court

below, in light of the clear result of conducting the phenolphthalein

powder test using sodium bicarbonate solution on the hands of the

accused Dr. Soni and the Sarpanch Hari Singh.

20. This Court further observes that the testimony of the two

Motbir witnesses, PW-5 Deepchand, a teacher in Deedwana,

deposed that he was present when the investigating officer, the

D.S.P. Ram Gopal had smeared the tainted currency notes with

phenolphthalein powder, and had explained the manner in which

the trap proceedings would be conducted, to the complainant.

Furthermore, the tainted currency also bore the signature/initials

of Deepchand. This further fortifies the version of the prosecution.

20.1 This Court also observes that the remaining testimony of the

said Motbir witness corroborates the testimonies of the

complainant PW-2 and the testimonies of PW-13 and 14, as

already discussed.

21. This Court further observes that with respect to the

testimony given by the Motbir witness PW-6 Sevaram also

corroborates the testimonies complainant PW-2 and the

testimonies of PW-13 and 14. Therefore, both the Motbir

witnesses support the version of the prosecution.

22. This Court also observes that the Sarpanch, Hari Singh was

presented as PW-3 before the learned Court below, whose

testimony reveals that when he was travelling from Deedwana to

Molasar in the jeep, the accused Dr. Soni was also present with

him in the vehicle, and was seated at its front. It was deposed by

the Sarpanch that, the complainant had stopped the jeep at a

(12 of 15) [CRLA-39/1990]

certain location where he saw the complainant handover an

amount of Rs.2500/- to the accused. And that, the accused had in

fact after taking the said amount, given him a Rs.50/- note and

asked him how was the note, to which he avers that he said that

the note is good and returned the said note back to the accused.

His testimony further reveals that there were 23 notes of Rs.100/-

denomination and 04 notes of Rs.50/- denomination. And that, the

accused kept the said currency in a bag, after which the jeep

resumed the journey. And when the jeep reached the location of

Daulatpura, the complainant Ramchandra Jat again stopped the

jeep, after which point the concerned police authorities

apprehended the accused and the Sarpanch both.

23. This Court further observes that of the entire incident that

transpired, an additional witness in the form of the driver of the

jeep PW-9 Rajesh Kumar was also examined before the learned

Court below. It is his testimony that the accused Dr. Soni had

boarded the jeep to collect the salaries of the staff members, from

the concerned bank branch, of the Government Hospital at

Molasar that he was associated with. And that, the accused and

the Sarpanch, to whom he refers as Hari Singh advocate, boarded

the jeep at about 11:30 A.M. And that, Ramchandra alongwith

some other persons was also seated at the back of the jeep. And

that, at some point the complainant Ramchandra Jat handed some

money to the accused, who stated that 3-4 notes were torn which

he then proceeded to show Hari Singh. His subsequent testimony

is with regard to how the accused and Hari Singh were

apprehended by the concerned police authority.

(13 of 15) [CRLA-39/1990]

24. This Court also observes that the It is a contention of the

learned counsel appearing on behalf of the appellant herein that

the bag from which the tainted currency was recovered was not

the bag of the accused, but in fact was that of Hari Singh. After a

perusal of the record this Court finds that the learned Court below

has rightly dealt with the same after looking into the evidence

placed on record and disbelieved the version of the defence.

25. This Court further observes, from the testimonies as

discussed hereinabove, a clear recovery of the tainted currency

notes has been made. Even the witness who is supporting the

version of the defence, states that an amount was accepted by the

accused. It is, therefore, clear that it is the attempt of the accused

to deflect the blame on to Hari Singh, and that the learned Court

below has rightly siifted through the evidence of the testimonies of

witnesses and separated the wheat from the chaff.

26. This Court also observes that the accused-Dr.Soni had a clear

motive to make a demand for the illegal gratification of Rs.2,500/-

from the complainant, since there was work pending with him in

the form of the medical report, which had to be produced with

respect to the complainant's niece (Bhanji) Geeta and relative

(Sage ki ladki) Shanti.

27. This Court further observes that it was the contention of the

learned counsel for the appellant that there was a discrepancy in

the process of filing the FIR. This Court finds that the learned

Court below has already rightly dealt with the same, and not

found any merit in the said submission.

28. This Court, thus, finds that the learned Court below has

already dealt with each of the contentions made by the learned

(14 of 15) [CRLA-39/1990]

counsel appearing on behalf of the appellant herein, each of which

have been sufficiently and fully dealt with by the learned Court

below.

29. This Court, therefore, finds that after looking into the overall

facts and circumstances of the present case and taking into due

consideration the evidences placed on the record before it, the

learned Court below has rightly made a presumption against the

accused under Section 20 of the Prevention fo Corruption Act,

1947 that he had made a demand for illegal gratification, which

the accused herein was unable to successfully rebut through

substantial evidence. Furthermore, the recovery has been proven

with the assistance of the phenolphthalein powder test, as

discussed hereinabove.

29. This Court, after a thorough perusal of the record, and after

delving deep into the testimonies of the witnesses presented by

both sides in this case, finds that the impugned judgment of

conviction as passed by the learned Court below on 18.01.1990 to

be a well reasoned and detailed speaking order.

30. This Court, in light of the above made observations and while

keeping into consideration the aforementioned precedent laws,

finds that the impugned judgment of conviction does not suffer

from any legal infirmity, and therefore, deserves to be affirmed

and upheld.

31. Resultantly, the present criminal appeal is without merit and

is hereby dismissed. Since the accused-appellant had already

expired and is being represented in this appeal by his wife,

therefore, it is not considered necessary to issue any

(15 of 15) [CRLA-39/1990]

consequential directions regarding custody of the appellant.

Accordingly, all pending applications, if any, are disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

11-skant

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