Adittya Kumar vs State
2022 Latest Caselaw 7826 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 366/1999

Adittya Kumar

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Rajesh Joshi, Senior Advocate assisted by Mr. CVS Shekhawat For Respondent(s) : Mr. Mohd. Javed PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 17/05/2022 Pronounced on 25/05/2022

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

preferred against the judgment dated 05.07.1999 passed by the

Sessions Judge for Anti-Corruption Cases, Bikaner in Sessions

Case No. 12/95 (122/97) whereby the appellant was convicted

under Sectins 7 and 13 (1) (d) read with 13 (2) of the Prevention

of Corruption Act, 1988; with the following prayer:

"It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused appellant may be acquitted of all the charges levelled against him."

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

Rajesh Joshi, learned Senior Counsel assisted by Mr. CVS

Shekhawat, appearing on behalf of the appellant are that the

complainant P.W. 1, Richpal Rai, Gram Sevak, of Panchayat Samiti,

Sardar-Shahar and that on 04.11.1994 he submitted a complaint

before S.B. Chowki Churu stating therein that the accused,

(2 of 19) [CRLA-366/1999]

employed at the post of L.D.C. in the office of the District

Collector, Churu, and that allegedly he took a bribe from the

complainant. And that, it is alleged that the complainant was

served a notice under Rule 17 CCA was issued and that despite

giving a sufficient reply, a demand of Rs. 10,000/- was made from

him, of which he paid Rs. 1000/- initially. And, is alleged that the

complainant was repeatedly approached by the appellant with the

demand for the balance Rs. 9,000/-. that on 30.11.1993 an order

was passed by the concerned Collector to drop the proceedings

against the complainant. And that, the complainant subsequently

approached the A.C.D. on 05.01.1994 and trap proceedings were

arranged, wherein the complainant was given a small tape

recorder, two independent witnesses were sent , namely Dilip

Kumar and Mazhar Ali were sent along with the complainant, and

that he was given currency notes in Rs.100 denomination, upon

which certain marks are made by the concerned authorities, and

which where also smeared with phenolphthalein powder.

3. Learned Senior Counsel for the appellant further submits

that P.W. 2 Dilip Kumar admitted in his cross-examination that he

did not witnessed the appellant taking the bribe, nor did he

witness a demand for any bribe being made by him. And that,

similar testimony was rendered by witnesses, P.W. 5, Shishupal

Singh, and P.W. 6, Mahaveer Prasad. And that, certain key

witnesses, namely; independent witness Ali Khan, Constable

Girdhari Singh, among others, were not examined by the

prosecution.

4. Learned Senior Counsel for the appellant also submits that

the appellant, employed at the post of LDC did not have any

(3 of 19) [CRLA-366/1999]

authority to pass any kind of order in the CCA proceedings

pending against the complainant, whether favourable or

otherwise, for the complainant. This was further corroborated by

P.W. 3 Satyanarayan, who was the reader in the Collectorate,

Churu.

5. Learned Senior Counsel for the appellant further submits

that the recording from the tape recorder utilized in the trap

proceedings, was not exhibited nor was any voice sample of either

parties taken. And that, the complainant was the sole basis of the

conviction by the learned Trial Court, and has ignored the

testimonies of the witnesses, as aforementioned, which cast doubt

on the version of the prosecution.

6. Learned Senior Counsel for the appellant also submits that

some colour, from the phenophthalein smeared currency, was

found from the pocket of Bhim Singh, and that this shows that the

amount was in fact with him.

7. Learned Senior Counsel for the appellant placed reliance on

the following judgments:-

7.1 Vijayakumar Vs. State of Tamil Nadu (2021) 3 SCC 687

"it has to be proved beyond reasonable doubt that Accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption Under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.

(4 of 19) [CRLA-366/1999]

...we are of the view that the demand for and acceptance of bribe amount and cell phone by the Appellant, is not proved beyond reasonable doubt.

Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record."

7.2 C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 "In Suraj Mal v. State (Delhi Admn.) reported in MANU/SC/0268/1979 : 1979CriLJ1087 , this Court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show the accused voluntarily accepted the money knowing it to be bribe."

7.3 Sanjaysinh Ramrao Chavan Vs. Dattaray Gulabrao Phalke and Ors. (2015) 3 SCC 123 "It is to be noted that in the first complaint filed by the second Respondent-the de facto complainant, there is no allegation for any demand for bribe by the Appellant. The allegation of demand is specifically against accused No. 2 only. That allegation against the Appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure-B report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. Learned Counsel for the Respondents submit that the

(5 of 19) [CRLA-366/1999]

conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer and Ors. MANU/SC/0834/2014 : 2014 (10) SCALE 660."

7.4 P. Satyanarayana Murthy Vs. District Inspector of

Police, State of Andhra Pradesh and Anr. (2015) 10 SCC

"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.

25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam MANU/SC/0564/2013 : (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 instant case, has failed to

(6 of 19) [CRLA-366/1999]

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."

8. Learned Public Prosecutor however, opposes and submits

that the learned Court below has rightly passed the impugned

order after taking into due consideration the overall facts and

circumstances of the case, and perusing the evidences placed on

record before it.

9. Heard learned counsel for both parties and, perused the

record of the case and the judgments cited at the Bar.

10. 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:-

"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

(7 of 19) [CRLA-366/1999]

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."

11. 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.

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.

                                        (8 of 19)                          [CRLA-366/1999]

  (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 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

(9 of 19) [CRLA-366/1999]

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 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

(10 of 19) [CRLA-366/1999]

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."

12. This Court observes that, for the offences under Sections 7

and 13 sub-section (1) (d) read with Section 13 sub-section (2) of

the Prevention of Corruption Act, 1988 to be made out against the

accused, it is necessary that; the twin ingredients of a demand of

illegal gratification / bribe of remuneration; or any valuable thing,

either without consideration or a consideration which is known to

be inadequate by the accused; or for a pecuniary advantage, for

himself or another, made by the accused or by another on his

behalf, coupled with a recovery of the said illegal gratification from

the accused, or from someone who has accepted the same on his

behalf; or if he has dishonestly or fraudulently misappropriates or

otherwise converts for his own use any property entrusted to him

or under his control as a public servant, must be proven by the

prosecution as per the facts and circumstances of each case.

(11 of 19) [CRLA-366/1999]

12.1 It is a settled position of law that any allegation under the

aforementioned sections against an accused, if sans a demand for

any kind of illegal gratification, (hereinafter referred to as

'Demand') or a recovery of the same (hereinafter referred to as

'Recovery'), as discussed above, would result in a failure of the

prosecution to prove its case, beyond all reasonable doubt.

13. However, in case a Demand and a Recovery have been

proven before the competent Court by placing the evidence on

record, which may include, but not be limited to; audio and/or

video recording of trap proceedings, transcript of telephonic

conversation between complainant and accused, chemical testing

of the currency notes and the clothes / person of the accused, or

his conduit, by phenolphthalein powder or anthracene powder,

testimonies of complainant and/or investigating officer/shadow

witness and/or trap/panch witness and/or other witnesses, and

whether any of the witnesses have turned hostile, the accused

may rebut the same, to the satisfaction of the competent Court

and averting to the facts of the case, by providing a justification /

explanation to such demand.

14. This Court further observes, as is clear from the legislative

intention crystallised in the provision of law under Section 20 of

the Act of 1988, that in case a demand for illegal gratification has

been proved, then it is rebuttable at the instance of the accused if

he is able to justify / explain the purpose for the said demand so

made, to the satisfaction of the Court.

15. The same was reinforced by the judgment of the Hon'ble

Apex Court in B. Noha Vs. State of Kerala and Ors. (2006) 12

SCC 277, wherein the Hon'ble Apex Court while referencing the

(12 of 19) [CRLA-366/1999]

ratio decidendi laid down in the earlier decision of State of A.P.

v. Kommaraju Gopala Krishna Murthy (2000) 9 SCC 752

observed the following:-

"...that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification."

15.1 Therefore, when it appears that an amount, which may

appear to be a Demand made by an accused, has been passed to

the accused, then a presumption under Section 20 of the Act of

1988 is made against the accused, and the burden of proof of

rebutting the same then lies on the shoulders of the accused.

15.2 Furthermore, in Guruviah & Ors. Vs. The State (2019) 8

SCC 396 wherein the Hon'ble Apex Court referenced the ratio

decidendi laid down earlier in T. Shankar Prasad v. State of

A.P. (2004) 3 SCC 753 and also took into consideration, that

although a justification / explanation was given by the accused, it

was not offered immediately after the recovery of money but at a

belated stage, which called into question the authenticity of the

same.

Relevant portion of T. Shankar (supra) is reproduced

below:-

"The involvement of both of the them a well-planned and cleverly managed device to systematically collect money stood sufficiently established on the evidence let in by the prosecution. Further, A-2 did not offer his explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by this Court in A. Abdul Kaffar v. State of Kerala."

(13 of 19) [CRLA-366/1999]

16. This Court is also conscious of the following judgments

rendered by the Hon'ble Apex Court:-

16.1 In N. Vijayakumar (supra), the Hon'ble Apex Court

reiterated the ratio decidendi laid down in Chandrappa and Ors.

v. State of Karnataka (2007) 4 SCC 415 with respect to the

powers of the appellate Court while dealing with an appeal against

an order of acquittal. Further reference was made to the judgment

rendered in Murugesan and Ors. v. State through Inspector

of Police (2012) 10 SCC 383 wherein the Hon'ble Apex Court

held that the appellate Court could reverse an order of acquittal

passed by a Court below, only if it finds the view to be an

erroneous or perverse view, and not merely if it finds that another

view is possible while looking into the facts and circumstances of

the case. And the same, has een consistently upheld by the

Hon'ble Apex Court in multiple judgments. (See The State of

Gujarat Vs. Navinbhai Chandrakant Joshi and Ors. (2018) 9

SCC 242 and State of Gujarat Vs. Bhalchandra

Laxmishankar Dave (2021) 2 SCC 735.)

Relevant portion of Chandrappa (supra) is reproduced as

under:-

"1.An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

2. The Cr.P.C. puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

3. Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an

(14 of 19) [CRLA-366/1999]

appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the Accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

Relevant portion of Murgesan (supra) is reproduced as

under:-

"In other words, the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasised that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such as "erroneous view" or "wrong view" which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible.

It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or

(15 of 19) [CRLA-366/1999]

otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court

16.2 V. Sejappa Vs. State (2016) 12 SCC 150 wherein the

Court referenced the judgment rendered in State through

Inspector of Police, A.P. v. K. Narasimhachary 2005) 8 SCC

364, wherein the following observation was made:-

"reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court."

16.3 State of Gujarat Vs. Bhalchandra Laxmishankar Dave

(2021) 2 SCC 735 wherein the Hon'ble Apex Court, while dealing

with a case wherein the High Court had set aside the order of

conviction passed by the Court below and acquitted the accused

therein, made the following observations:-

"We have gone through the detailed judgment and order of conviction passed by the Learned Trial Court and also the evidence on record laid down by the prosecution as well as the defence. We have perused the impugned judgment and order of acquittal passed by the High Court to ascertain whether the High Court has conformed to the principles while exercising in

(16 of 19) [CRLA-366/1999]

the criminal appeal against the judgment and order of conviction. We find that the High Court has not strictly proceeded in the manner in which High Court ought to have while dealing with the appeal against the order of conviction. On perusal of the impugned judgment and order of acquittal passed by the High Court, we find that, as such, there is no re-appreciation of the entire evidence on record in detail while acquitting the Respondent - Accused. The High Court has only made general observations on the depositions of the witnesses examined.

The High Court ought to have appreciated that it was dealing with the first appeal against the order of conviction passed by the Learned trial Court. Being First Appellate Court, the High Court was required to re-appreciate the entire evidence on record and also the reasoning given by the Learned trial Court while convicting the Accused. Being the First Appellate Court the High Court ought to have reappreciated the entire evidence on record without any limitation, which might be there while dealing with an appeal against the order of acquittal passed by the Learned Trial Court. Therefore, we are of the firm opinion that the impugned judgment and order passed by the High Court acquitting the Respondent - Accused without adverting to the reasons given by the Learned trial Court while convicting the Accused and without reappreciating the entire evidence on record in detail cannot be sustained and the same deserves to be quashed and set aside. "

17. At the cost of repetition, this Court deems it proper to

summarise the observations made by the Hon'ble Apex Court in

the aforementioned precedent laws in the following manner:-

17.1 For offences under the Sections 7 and 13 (1) (d) read with

Section 13 (2) of the Act of 1988, it is fundamental that a Demand

and Recovery of the same is proven against the accused.

17.2 The presumption under Section 20 of the Act of 1988, once

demand and recovery are proven, operates against the accused,

(17 of 19) [CRLA-366/1999]

unless he rebuts the same to the satisfaction of the competent

Court, and whether the rebuttal was made at the appropriate

stage.

17.3 The powers of the appellate Court to reverse an order of

acquittal, under the Act of 1988, passed by the Court below, can

be done only on the ground that the view taken by the Court

below is erroneous or perverse, and not because the appellate

Court, after looking into the facts and circumstances of the case,

is inclined to take another possible view than the one taken by the

learned Court below. Furthermore, the instances in which the

appellate Court may disturb an order of acquittal, under the Act of

1988, passed by the learned Court below on any of the grounds as

enumerated in the case of Chandrappa (supra).

17.4 And that, an appellate Court may interfere with an order of

conviction, under the Act of 1988, only after a re-appreciation of

of the entire evidence on record and thereafter, if the appellate

Court finds the reasons as laid out by the Court below, in

convicting the accused, under the Act of 1988, to be bad or

unsustainable in the eye of law, then it may interfere and

accordingly, reverse the conviction into an acquittal.

18. Now adverting to the facts and circumstances of the present

case, this Court makes the following observations:-

18.1 The Demand of Rs. 10,000, as rightly held by the learned

Court below, has been made by the accused-appellant as there is

a tape recording of the pre trap whereby it is clear that the

Demand was made by the accused-appellant from the

complainant. The motive for the Demand has also been made

clear, that the accused-appellant, an LDC at the Collectorate,

(18 of 19) [CRLA-366/1999]

Churu led the complainant to believe that he could ensure his

name be dropped from the Rule 17 CCA proceedings. Whether it

was within his power to do so is irrelevant, as the complainant

was led to believe that he could.

18.2 It was argued by the learned Senior Counsel that the

accused appellant, was employed on the post of L.D.C. at the

Collectorate, Churu and therefore was not at competent enough to

otherwise abuse his official position, more particularly like the one

as alleged in the present case, and that therefore there was no

motive or basis for demand, and the same cannot be proved.

However, the learned Trial Court rightly held that the accused

appellant had stopped the file in question, of the complainant and

thereafter on the pretext of seeking a clarification from the

concerned authority, he sought a Demand from the complainant

and managed to keep the said work pending.

18.3 The Recovery of 20 notes of Rs. 100 denomination, which

were smeared with phenolphthalein powder during the trap

proceedings, was made from the accused-appellant, and upon

being tested, his trousers, coat, lota, and his right hand were

found to be a pinkish hue as a result of coming into contact with

the currency notes.

18.4 The justification given by the accused-appellant, that firstly

he did not come into contact with the currency notes so recovered

from him, is clearly inconsistent with the evidence of the chemical

test conducted, as discussed hereinabove and secondly that, there

was no work / file pending with him with respect to the

complainant, whether true, was not proven to be communicated to

(19 of 19) [CRLA-366/1999]

the complainant, and therefore is without merit, as rightly held by

the learned Court below.

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

aforementioned precedent laws laid down by the Hon'ble Apex

Court, finds that the judgment passed by the Trial Court deserves

to be upheld.

20. This Court, therefore, finds that the impugned judgment of

conviction passed by the learned Court below, does not suffer

from any legal infirmity and therefore, the same is upheld and

affirmed.

21. The appeal is dismissed. The accused is on bail, his bail

bonds and sureties stand forfeited, and necessary steps be taken

forthwith to take the accused into custody to serve out the

remaining part of the sentence. Accordingly, all pending

applications, if any, are disposed of. Record of the learned court

below be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

SKant/-

Powered by TCPDF (www.tcpdf.org)