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2022 DIGILAW 836 (PNJ)

State Of Haryana v. Ishwar

2022-05-09

AVNEESH JHINGAN

body2022
JUDGMENT Avneesh Jhingan, J. (Oral) - This application is filed seeking Leave to Appeal against acquittal of the respondents in case of FIR No. 26 dated 18.6.2013, under Sections 7 and 13 of the Prevention of Corruption Act, 1988 (for short, 'the Act'). 2. A complaint was submitted by Mainpal on 18.6.2013. The allegations were that he had filed an application in PWD, B&R Office, Hissar, for issuance of contractor licence and respondent No.2-Jagdish, Senior Accounts Clerk demanded Rs.10,000/- as bribe. The deal was struck for Rs.8500/-. The complainant was directed to pay the amount to respondent No.1-Ishwar Singh, Computer Operator. On the basis of the complaint, a trap was laid. Sube Singh, Suresh Ravish and Devi Lal were Shadow witness, Duty Magistrate and Investigating Officer respectively. Laced currency notes worth Rs.8500/- were recovered from the pocket of respondent No.1-Ishwar Singh. 3. The prosecution in order to prove its case, apart from other evidence, relied upon the FSL report, deposition of complainant-Mainpal, shadow witness, Duty Magistrate and the Investigating Officer. A document received under the Right to Information Act, 2005 was exhibited by defence as D2 which specifically mentioned that complainant Mainpal had not submitted any application for contractor licence in the office of Superintending Engineer, Hissar Circle PWD B&R. The deposition including cross-examination of the prosecution witnesses were reproduced by the trial court and thereafter the accused was acquitted giving benefit of doubt. 4. Learned counsel for the State submits that money was recovered from the pocket of respondent-Ishwar, the contention is that the trial court erred in acquitting the respondents. 5. Before proceeding further, it would be appropriate to note that judgment of the trial court is not happily worded. The trial court framed the issue for adjudication i.e. "Whether the prosecution has proved guilt the accused Jagdish Kumar and Ishwar punishable under Section 7 and 13(1)(d) of the Act?" Thereafter, the deposition of the complainant and cross-examination of the Duty Magistrate, shadow witness and the Investigating Officer were reproduced and conclusion recorded that the prosecution was not able to prove the guilt of the accused upto hilt beyond shadow of all reasonable doubt. 6. The judgment passed, is not as is expected in a criminal trial, more-so under the Act. 6. The judgment passed, is not as is expected in a criminal trial, more-so under the Act. The minimum what was required was that the trial court should have recorded reasons on the basis of the facts and evidence for reaching to conclusion to acquit the accused. 7. Be that as it may, considering that the complaint is of the year 2013, the judgment was pronounced on 24.4.2015, it would not be appropriate at this stage to remit the matter back Heard learned counsel for the State and counsel for respondent No. 2 and perused the record. 8. It would be relevant to quote following decisions of Supreme Court in Criminal Appeal No. 261 of 2022-K. Shanthmma v. The State of Telangana, decided on 21.2.2022 held: "7.We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act. In the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another (2015) 10 SCC 152 , this Court has summarised the well- settled law on the subject in paragraph 23 which reads thus: "23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder." (Emphasis supplied) 9. The Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. 10. The Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. 10. A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001 (1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under: "We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166 , which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference." 11. To the same effect is the ratio of the judgments of the Supreme Court in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 . 12. Similarly, in Mrinal Das & others v. The State of Tripura, 2011 (9) Supreme Court Cases 479, the Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under: "8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed" 13. From a perusal of the evidence adduced and the depositions of the prosecution witnesses, there cannot be any dispute on the fact that as per Ex.D2, no application was moved by the complainant for grant of Contractor licence. In view of the undisputed fact, the foundation for the allegations made in the complaint was eroded. 14. In the present case, there is nothing on record to establish that demand was made by respondent-Ishwar Singh. No money was accepted by respondent-Jagdish Kumar. There is no material on record to substantiate the allegations made in the complaint to bring the case of prosecution within ambit clauses (a), (b) and (c) of Section 7 of the Act, at the cost of repetition, as no application was filed by the complainant for seeking Contractor licence. 15. No case is made out of factual or legal error, much less perversity, in the impugned order. The view taken by the trial court is plausible one. No case is made out for grant of leave to appeal. 15. No case is made out of factual or legal error, much less perversity, in the impugned order. The view taken by the trial court is plausible one. No case is made out for grant of leave to appeal. The application for grant of leave to appeal is dismissed.