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2018 DIGILAW 2224 (RAJ)

Rajendra Prasad Sharma v. State of Rajasthan

2018-11-27

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. - The matter has come up on the stay application filed by the appellants. With the consent of counsel for the parties, the matter was heard at length for deciding the appeal itself. 2. Appellants have preferred this appeal aggrieved by judgment and order dated 17.05.2018 passed by Special Judge Anti Corruption Cases, Kota, whereby, appellant No.1 and 2 have been convicted for offence under Section 120-B IPC and Section 13(1) (e) read with Section 13(2) of Prevention of Corruption Act and appellants No.3 to 7 have been convicted for offence under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act read with Section 120-B of IPC. Appellants No.1 and 2 have been sentenced to six months simple imprisonment for offence under Section 120-B IPC and seven years rigorous imprisonment for offence under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act and fine of Rs. 50,00,000/- each have been imposed. On non-payment of fine to further undergo three years simple imprisonment. Appellants No.3 and 4 have been sentenced to three years rigorous imprisonment and fine of Rs. 5,00,000/- each, on non-payment of fine to further undergo six months rigorous imprisonment. Appellants No.5 to 7 have been sentenced to five years rigorous imprisonment and fine of Rs. 5,00,000/- and on non-payment of fine to further undergo one year simple imprisonment. 3. In brief, the factual matrix of the case are that a complaint was registered against the appellant No.1 at Anti Corruption Bureau, Jaipur on 11.10.1998. In furtherance of the report, residential premises of appellant No.1 and his hospital were searched by the Anti Corruption Bureau Team. After due investigation, charge-sheet was filed against the appellants, whereby appellants No.1 & 2 were charged for offence under Section 120-B IPC and Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act and rest of the appellants were charged under section Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act read with Section 120-B IPC. 4. Appellants denied the charges and sought trial, whereupon sixteen witnesses were examined on behalf of the prosecution and thirty documents were exhibited. Sixty five articles were also exhibited before the Court. Appellants were examined under Section 313 Cr.P.C., 1973 In defence, six witnesses were examined on behalf of the appellants. 4. Appellants denied the charges and sought trial, whereupon sixteen witnesses were examined on behalf of the prosecution and thirty documents were exhibited. Sixty five articles were also exhibited before the Court. Appellants were examined under Section 313 Cr.P.C., 1973 In defence, six witnesses were examined on behalf of the appellants. Learned Court below after hearing the arguments have convicted and sentenced the appellants as herein above mentioned aggrieved by which the present appeal has been preferred. 5. It is contended by counsel for the appellants that the Court below has committed grave error and illegality in convicting the appellants under the Prevention of Corruption Act, without there being any evidence. It is also contended that the Court below has considered the challan paper for convicting the appellants. Challan paper is not material evidence and the same cannot be made basis of conviction, moreover the challan paper were not put to the accused-appellants under Section 313 Cr.P.C., 1973 6. Counsel for the appellants has placed reliance on "Rishi Nandan Pandit & Ors. v. State of Bihar" 2000 Cr.L.R. (SC)52, wherein, the Apex Court has held that the material collected during investigation cannot be made basis of conviction unless the same is proved by leading substantive evidence in the Court. 7. It is contended that there was no evidence namesake with regard to income of the appellants during the period from 1982 to 1998. There was no evidence with regard to the assets, his expenditure and purchase by the appellants, there was no calculation with regard to disproportionate assets of the appellants. It is also contended that prior to joining government service, appellant No.1 has worked as an agent in Life Insurance Corporation of India from 1971 to 1981 which income was also not considered and Court below merely mentioned that income be considered as one lakh without there being any basis for calculation. It is also contended that a doctor is permitted private practice. There was no mention in the judgment with regard to the income which a doctor earns by private practice. 8. Counsel for the appellants in this regard has placed reliance on "Kanwarjit Singh Kakkar v. State of Punjab and Anr." JT 2011 (5) SC 214, wherein the Apex Court has held that private practice is not illegal gratification and the act would not constitute an offence under the Prevention of Corruption Act. 9. 8. Counsel for the appellants in this regard has placed reliance on "Kanwarjit Singh Kakkar v. State of Punjab and Anr." JT 2011 (5) SC 214, wherein the Apex Court has held that private practice is not illegal gratification and the act would not constitute an offence under the Prevention of Corruption Act. 9. It is also contended that appellant No.2 has been wrongly convicted for offence under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act. Appellant No.2 was working with Life Insurance Corporation of India, neither her income was considered nor prosecution sanction was exhibited. 10. It is also contended that none of the Investigating Officers has given any detail with regard to the income of the appellants, their expenditure and their assets and the Court below on its own services and conjunctures have concluded that the appellants are having assets beyond their known-sources of income. It is also contended that TT Hospital and Research Center is a Pvt. Ltd. Company which has a separate legal entity which was incorporated in the year, 1993-94 and the same find place in the returns submitted by the appellants. 11. It is also contended that the Court below has committed grave illegality in basing the conviction by drawing presumption against the appellants under Section 20 of the Prevention of Corruption Act. It is argued that Section 20 of the Act do not apply to offence under Section 13(1)(e) of Prevention of Corruption Act, which fact was totally overlooked by the learned trial Court. It is also contended that by merely exhibiting the documents, the same is not proved, they are required to be proved by the persons who are acquainted with the contents of the documents by giving ocular testimony. Reliance in this regard has been placed on "Chaman Lal v. State of Punjab" AIR 1970 Supreme Court 1372. 12. Learned Public Prosecutor has opposed the appeal. His contention is that the learned Court below has come to the conclusion that total disproportionate assets of the appellants is to the tune of about rupees thirty three lakh. The Court below has considered the evidence which was produced before the Court and the Court below has also come to the conclusion that a Shell Company in the name of TT Hospital and Research Center Pvt. Ltd. was incorporated by the appellants to invest the disproportionate income. 13. The Court below has considered the evidence which was produced before the Court and the Court below has also come to the conclusion that a Shell Company in the name of TT Hospital and Research Center Pvt. Ltd. was incorporated by the appellants to invest the disproportionate income. 13. It is also contended that the trial Court has taken into account the income earned by the appellants from 1982 to 1998, has deducted the amount which was spent by the appellants and have not committed any error in convicting the appellants. With regard to forfeiture of the property, it is contended that the property of Hospital was purchased from undisclosed income, hence the Court was competent to forfeit the property. 14. I have considered the contentions and have carefully perused the judgment and evidence adduced before the trial Court. 15. PW-12-Indra Kumar Sharma is the first Investigating Officer, his evidence pertains to search conducted at the residence of appellant No.1. He has not deposed with regard to the income of the appellant No.1. 16. PW-13-Yashpal Sharma is the second Investigating Officer who has also given evidence with regard to the valuation of the TT Hospital and Research Center. He has also not deposed with regard to the income of the appellant No.1. 17. PW-7- Sharad Saxena is the valuer who has submitted valuation report with regard to house No.5A4, Talwandi, Kota and valuation of TT Hospital. As per this witness, the house was valued Rs. 9,70,402/- and hospital valued at Rs. 31,33,057/-. 18. For bringing home charges under Section 13(1)(e) of Prevention of Corruption Act, prosecution is required to first prove the valid source of income and if after deducting the expenditure, the value arrived less than the assets recovered, the excess of assets recovered can be considered as income beyond known sources. 19. Prosecution has utterly failed to produce the evidence with regard to the known-sources of income of the appellant No.1. They have not adduced any evidence with regard to his expenditure and they have merely submitted valuation report of the properties. TT Hospital & Research Center is a Pvt. Ltd. Company having separate legal entity in which appellant is holding certain shares, the valuation of Hospital cannot be considered as asset of appellant No.1, his asset is to be arrived as per the valuation of his shares. 20. TT Hospital & Research Center is a Pvt. Ltd. Company having separate legal entity in which appellant is holding certain shares, the valuation of Hospital cannot be considered as asset of appellant No.1, his asset is to be arrived as per the valuation of his shares. 20. Learned trial Court has placed reliance on the documents submitted with the challan. Challan paper cannot be made basis of conviction moreover, the challan paper was not even exhibited before the Court and were not even put to the accused-appellants under section 313 Cr.P.C., 1973 21. Learned trial Court has wrongly further committed grave illegality in drawing presumption under section 20 of the Act without even venturing to read the provision. Section 20 of Prevention of Corruption Act has no application to Section 13(1) (e) of Prevention of Corruption Act. 22. Trial Court has based the conviction placing reliance on the evidence adduced by the defence and more weightage have been given to the statement of DW-1 to DW-6. It is settled principle of law that prosecution has to stand on its own legs and bring home the essential ingredients of the offence. 23. The conviction in this case rests on the challan paper and there is no evidence with regard to known-sources of income of the appellants and his expenses, hence judgment of conviction cannot be sustained. Since the prosecution has failed to establish the offence under Section 13(1)(e) of Prevention of Corruption Act conviction under Section 120-B IPC and conviction of other appellants with the aid of Section 120-B IPC cannot be sustained. The order of forfeiture of property is also contrary to the Act hence cannot be sustained. 24. In the result, appeal filed by appellants is allowed. The judgment of conviction and sentence passed by the Court below is quashed and set aside. The appellants are acquitted of the charges levelled against them. Appellants are on bail, their bail bonds are cancelled. 25. Appellants are directed to furnish personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within four weeks from the date of this order to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.