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2017 DIGILAW 1599 (RAJ)

Niranjan Kumar Shrma v. State of Rajasthan

2017-07-19

DEEPAK MAHESHWARI

body2017
JUDGMENT : Deepak Maheshwari, J. Heard learned counsel for the accused appellant and also learned public Prosecutor. 2. This appeal has been preferred on behalf of accused-Niranjan Kumar Sharma assailing the judgment dated 30.06.2016 passed by learned Special Judge, Prevention of Corruption Act, Alwar, whereby the accused-appellant has been held guilty for the offence punishable under Sections 13(2) r/w Section 13(1)(d)(i)(ii)(iii) of Prevention of Corruption Act, 1988 ('the Act of 1988'). 3. Succinctly stated, facts giving rise to this appeal are that accused-Niranjan Kumar Sharma, on his transfer from the post of Excise Inspector Bhiwadi handed over his charge to Ganga Ram Meena on 26th September, 1996. As per the entry made in stock register of M/s Chachet Pharmaceuticals Ltd. there was stock of 10000 litres of rectified spirit. But on physical verification NIL stock was found. The concern clerk Vijay Prakash informed that Mr. Sharma made an entry on 26th September, 1996 in the concern register showing transfer of the same to M/s. Samrat Bottlers. On making query from M/s Chachet Pharmaceuticals Ltd., they confirmed the fact stating that it was sold to M/s. Samrat Bottlers vide Permit No. 1 dated 26th May, 1995. But M/s. Samrat Bottlers denied this fact stating that because the rates could not be finalized, they didn't receive rectified spirit. 4. On inspection of spirit consignment register of M/s. Samrat Bottlers, no entry was found regarding receipt of rectified spirit. No transit permit was also found in this regard. In this background allegation made against Mr. Niranjan Kumar Sharma is that the amount of Rs. 16,67,000/- required to be imposed on 10000 litres of rectified spirit was very cunningly evaded. Thus, wrongful loss has been caused to the State Government of this amount. Thus, a charge-sheet for the offences under Sections 120-B, 420, 467, 468 & 471 IPC and under Section 13(2) of the Act of 1988 came to be filed against Niranjan Kumar Sharma and co-accused Ram Manohar Soni. The learned trial court proceeded to frame charges for the aforesaid offences, to which the accused denied and claimed trial. 5. After concluding the trial, Ram Manohar Soni was acquitted of the charge under Section 120-B IPC framed against him. Mr. The learned trial court proceeded to frame charges for the aforesaid offences, to which the accused denied and claimed trial. 5. After concluding the trial, Ram Manohar Soni was acquitted of the charge under Section 120-B IPC framed against him. Mr. Niranjan Kumar Sharma was also acquitted of the charges under Sections 120-B, 420, 467, 468, 471 IPC, but was convicted for the offences under Section 13(2) r/w Section 13(1)(d)(i)(ii)(iii) of the Act of 1988. He was awarded rigorous imprisonment for 3 years and a fine of Rs. 5000/- was also imposed on him. Sentence for 3 months was awarded in default of payment of fine. Feeling aggrieved by the judgment, this appeal has been filed. 6. Learned counsel appearing for accused-appellant submits that the impugned judgment suffers from self contradictions. The appellant has been acquitted of the charges under Sections 420, 467, 468, 471 and 120-B IPC. On the contrary, the learned trial court has found that wrongful loss was caused to the State Government by the accused-appellant by making forged entry in the stock register and other relevant record. He also submits that prosecution has totally failed to prove that 10000 litres of rectified spirit was not received by M/s. Samrat Bottlers. Learned trial court has not been able to find answers to the queries posed by itself in the judgment and merely on assumptions and surmises regarding the un-replied queries, liability has been fastened upon the accused-appellant without there being any cogent evidence in this regard. 7. Learned counsel for accused appellant also submits that no duty was leviable on the rectified spirit as per Section 4 of the Rajasthan Excise Act 1950 ('the Act of 1950'), being a raw material for producing liquor. On laying challenge to such demand by M/s. Chachet Pharmaceuticals Ltd. by way of filing S.B. Civil Writ Petition No. 5409/1998, Co-ordinate Bench of this Court quashed the notice raising demand in this regard. In this fact situation, it cannot be inferred that accused-appellant caused any wrongful loss to the State Government. Another limb of argument advance by learned counsel is that there is no evidence to the effect that accused made any demand or obtained any bribe. In this fact situation, it cannot be inferred that accused-appellant caused any wrongful loss to the State Government. Another limb of argument advance by learned counsel is that there is no evidence to the effect that accused made any demand or obtained any bribe. While relying on many judgments rendered by the Hon'ble Apex Court, it has been stated that in absence of proof of demand or obtaining bribe conviction cannot be held for the offence under Section 13(2) of the Act of 1988. Thus, it has been prayed that the appeal be allowed while setting aside the judgment impugned. 8. Per contra, learned Public Prosecutor has argued that the judgment impugned is perfectly in consonance with the evidence available on record. The arguments advanced by learned counsel for the accused-appellant do not find support from the material available on record. Thus, he submits that the appeal may kindly be dismissed. 9. I have given thoughtful consideration to the arguments advanced by rival sides. 10. It is pertinent to note that the learned trial court acquitted the accused-appellant for the offences punishable under Sections 420, 467, 468 and 471 IPC. It has been specifically held by the learned trial court that there is no evidence to the effect that accused could get unlawful gain by mis-appropriating rectified spirit. It is thus clear that no offence of cheating and thereby dishonestly inducing delivery of rectified spirit has been found proved against the accused. Similarly no offence of forgery with regard to any documents for the purpose of cheating and using such false document as genuine has been found proved by the learned trial court. Consequently, the learned trial court has found that no forgery was made by the accused in respect of register RG-2, Gate Pass Register, Consignment Register, TP book and other relevant record in respect of consignment of rectified spirit from M/s. Chachet Pharmaceuticals Ltd. to M/s. Samrat Bottlers. In face of this specific conclusion of the trial court, the assumptions drawn by it on the basis of un-replied queries mentioned at various places in the judgment are of no significance. 11. It is pertinent to note that the allegation against accused is that 10000 litres of rectified spirit was wrongly shown to have been transferred from M/s. Chachet Pharmaceuticals Ltd. to M/s. Samrat Bottlers, while making the entry in register RG-2 as NIL. 11. It is pertinent to note that the allegation against accused is that 10000 litres of rectified spirit was wrongly shown to have been transferred from M/s. Chachet Pharmaceuticals Ltd. to M/s. Samrat Bottlers, while making the entry in register RG-2 as NIL. But it has been admitted by the Investigating Officer of the case Mr. Jagdish Singh (PW-8) in his cross examination that departmental inquiry officer has mentioned in his report that rectified spirit was transferred to M/s. Samrat Bottlers. It has also been admitted by him that material receipt register of M/s. Samrat Bottlers had been stolen, for which FIR was lodged by Rahul Bali. Mr. Ram Chandra Singh (DW-2), authorised representative of M/s. Samrat Bottlers admitted that rectified spirit was received in M/s. Samrat Bottlers and its entry was made in its material receipt register. This fact has also been admitted by the prosecution witnesses that an agreement came into being between M/s. Chachet Pharmaceuticals Ltd. to M/s. Samrat Bottlers about sale of rectified spirit. This fact is also not in dispute that permission to transfer rectified spirit was granted by the Excise Commissioner. In light of this evidence and the conclusion drawn by the learned trial court acquitting the accused in regard to the offences under Sections 420, 467, 468 and 471 IPC, it is obvious that the fact of misappropriation of rectified Spirit by the accused-appellant does not stand proved. 12. As a natural corollary, it can not been inferred that any wrongful loss was caused by the accused-appellant to the State Government. Another ground supporting this inference is that in S.B. Civil Writ Petition No. 5409/98, preferred by M/s. Chachet Pharmaceuticals Ltd. against the demand raised by District Excise Officer, Alwar in respect of excise duty of Rs. 16,63,700/- on this 10000 litres rectified spirit, the same was quashed while allowing the writ petition. This fact has not been disputed by the prosecution but it has been argued that the writ petition was filed in respect of civil liability of the company and it has got nothing to do with the offence alleged against accused-appellant, I am not convinced with the argument advanced. If the demand has been quashed, it bears the same significance for all purposes. If the demand has been quashed, it bears the same significance for all purposes. Even if, it is assumed that only civil liability of the firm was quashed, it can only mean that no wrongful loss was caused by the accused appellant in the given circumstances. 13. It is pertinent to note that the learned trial court has held the accused guilty for the offence under Sections 13(2) read with section 13(1)(d)(i)(ii)(iii) of the Act of 1988. It will be of benefit to reproduce the relevant part of the Section 13, which is as follow :- "Section 13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,- (a) ..... ...... ...... ...... ...... ...... ...... ....... (b) ..... ...... ...... ...... ...... ...... ...... ....... (c) ..... ...... ...... ...... ...... ...... ...... ....... (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) ..... ...... ...... ...... ...... ...... ...... ....... ..... ...... ...... ...... ...... ...... ...... ....... (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine." On bare perusal, it appears that while (1) using corrupt or illegal means or (2) abusing the position of a public servant or (3) by holding office as a public servant, if a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage, he is said to commit the offence of criminal misconduct. I am fully convinced with the argument advanced by learned counsel for the accused-appellant that in the matter in hand there is not even an iota of evidence that the accused obtained for himself or any other person any valuable thing or pecuniary advantage. None of the prosecution witnesses says that any such demand was even made by the accused or such thing or advantage was obtained by the accused. 14. None of the prosecution witnesses says that any such demand was even made by the accused or such thing or advantage was obtained by the accused. 14. Learned counsel for the appellant has placed reliance on the following judgments in this respect :- (I) A. Subair v. State of Kerala, reported in 2009 Cr.L.J. 3450, wherein the Hon'ble Supreme Court held as under:- "8. Insofar as Section 13 (1)(d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 9. In the case of C.K. Damodaran Nair v. Government of India, this Court had an occasion to consider the word "obtained" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 (now Section 13(1) (d) of Act, 1988), and it was held: "12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused "obtained" the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b)-and not under Section 5(1)(c), (d) or (e) of the Act. "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either "acceptance" or "obtainment"." 10. The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established." (II) K.S. Panduranga v. State of Karnataka, reported in AIR 2013 SC 2164 , wherein the Hon'ble Supreme Court held as under:- "41. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any, (The Stamp Of Approval Given To The Same By The), (the Stamp Of Approval Given To The Same By The) acceptance and, accordingly, we find that the ending recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High cannot be faulted" (III) State of Punjab v. Madan Mohan Lal Verma, reported in AIR 2013 SC 3368 , wherein the Hon'ble Supreme Court held as under:- "7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. 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 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 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, 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 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. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person." (IV) B. Jayaraj v. State of A.P., reported in 2014 Cr.L.J. 2433, wherein the Hon'ble Supreme Court held as under:- "7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. C.B.I." (V) Anirudhsinhji Karansinhji Jadeja & Anr. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. C.B.I." (V) Anirudhsinhji Karansinhji Jadeja & Anr. v. State of Gujarat, reported in AIR 1995 SC 2390 , wherein the Hon'ble Supreme Court held as under:- "15. The aforesaid is however not all. Even if it be accepted that as an additional safeguard against arbitrary exercise of the drastic provisions, the State Government had provided by administrative instructions an additional safeguard where under the DSP was required to obtain the sanction/consent of the State Government, we are of the view that in the present case the same was given by the State Government without proper application of mind. We have taken this view because the sanction/consent was given by the Government merely on the basis of the FAX message dated 17.3.1995 of the DSP. The reason for our saying so is that though there is on record a FAX message of Deputy Director General of Police also, which is dated 18.3.1995, the sanction/consent order has mentioned above the FAX message of the DSP only. Now, no doubt the message of the DSP is quite exhaustive, as would appear from that message which has been quoted above in full, we are inclined to think that before agreeing to use of harsh provisions of TADA against the appellants, the Government ought to have taken some steps to satisfy itself whether what had been stated by the DSP was borne out by the records, which apparently had not been called for in the present case, as the sanction/consent was given post haste on 18.3.1995, i.e., the very next day of the message of the DSP. It seems the DSP emphasised the political angle in the first two paragraphs of his message. The dispute or motive stated was that the Darbars were annoyed because they were refused loan and not because of any political rivalry. In the third paragraph there is reference to statements of accused after arrest which would ordinarily be inadmissible in evidence. Reference to avoid incident of the past does not provide any nexus. The State Government gave the sanction without even discussing the matter with the investigating officer and without assessing the situation independently. In the third paragraph there is reference to statements of accused after arrest which would ordinarily be inadmissible in evidence. Reference to avoid incident of the past does not provide any nexus. The State Government gave the sanction without even discussing the matter with the investigating officer and without assessing the situation independently. All these show lack of proper and due application of mind by the State Government while giving sanction/consent." 15. Taking into consideration above legal matrix, this Court has no hesitation to hold that in the instant case there was no ground for the learned trial court to convict the accused-appellant for the offence punishable under Section 13(2) r/w Section 13(1)(d)(i)(ii)(iii) of the Act of 1988 in absence of any obtainment of valuable thing or pecuniary advantage. The conviction held by learned trial court in this regard is wholly unsustainable for complete absence of necessary ingredients of the offence. The judgment convicting and sentencing the accused-appellant is thus liable to be quashed and set aside. 16. In the result, the appeal preferred by accused-appellant Niranjan Kumar Sharma is allowed. The judgment dated 30th June, 2016 passed by the learned Special Judge, Prevention of Corruption Act, Alwar in Criminal Case No. 05/2013 is quashed and set aside.