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Saturday, August 2, 2014

Section 12 of the Prevention of Corruption Act, 1988 (for short, “the Act”) -Bribe giving - Registration and Investigation by ASI/SHO in part and later part by Dy. S.P. - not fatal to the prosecution - Giving Bribe to the complainant to do a favour in getting supply orders of Double Deck Beds to Hostels - Trial court acquitted the accused - High court convicted the accused - Apex court held that It is evident that PW-7 Prem Chand who was posted as ASI/IO in the Bharmour Police Station requested the SHO at Chamba to depute a gazette officer to investigate the matter. Even if the part of investigation had been carried out by PW-7, it cannot be said to be illegal. Nothing has been said from the side of the defence that serious prejudice was caused to the accused by reason of the investigation carried out. The High Court rightly pointed out that Bharmour being a tribal area, there is a single line administration and lot of power is vested with the Resident Commissioner since the heads of various departments or competent authorities are not available in Bharmour, and at that time the ADM-complainant was also the Resident Commissioner, Bharmour.we are fully in agreement that the prosecution has proved charges made against the appellant. The provisions of law considered by the High Court ought to have been followed by the Trial Court. The Trial Court decided the matter as if the offence has been committed by the appellant under the provisions of penal code. The Trial Court has not considered the gravity of the offence as contemplated under the Prevention of Corruption Act, 1988. = CRIMINAL APPEAL NO.(s) 1564 OF 2014 (Arising out of Special Leave Petition (Crl.) No.6386 of 2012) Narinder Singh ………Appellant Versus State of Himachal Pradesh ……..Respondent = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41791

  Section 12  of  the  Prevention  of  Corruption Act, 1988 (for short, “the Act”) -Bribe giving - Registration and Investigation by ASI/SHO in part and later part by Dy. S.P. - not fatal to the prosecution -  Giving Bribe to the complainant to do a favour in getting supply orders of Double Deck Beds to Hostels - Trial court acquitted the accused - High court convicted the accused - Apex court held that It is  evident that PW-7 Prem Chand who  was  posted  as  ASI/IO  in  the  Bharmour  Police Station requested  the  SHO  at  Chamba  to  depute  a  gazette  officer  to investigate the matter.  Even if the part of investigation had been  carried out by PW-7, it cannot be said to be illegal.   Nothing has  been  said  from the side of the defence that serious prejudice was caused to the accused  by reason of the investigation carried out.  The  High  Court  rightly  pointed out  that  Bharmour  being  a  tribal  area,  there   is   a   single   line administration and lot of power is vested  with  the  Resident  Commissioner since the heads of various departments  or  competent  authorities  are  not available in Bharmour, and at that time the  ADM-complainant  was  also  the Resident Commissioner, Bharmour.we  are fully in agreement that the prosecution has proved charges made against  the appellant.  The provisions of law considered by  the  High  Court  ought  to have been followed by the Trial Court.  The Trial Court decided  the  matter as if the offence has been committed by the appellant under  the  provisions of penal code.  The Trial Court  has  not  considered  the  gravity  of  the offence as contemplated under the Prevention of Corruption Act, 1988. =


Single Judge of the High Court setting aside the judgment and  order
of acquittal of the Trial Court convicted the  appellant-accused  guilty  of
the offence punishable under Section 12  of  the  Prevention  of  Corruption
Act, 1988 (for short, “the Act”) and sentenced him  to  undergo  six  months
imprisonment.=
 on  10.12.2002  at  11  AM  the
accused-appellant  attempted  to  give  a  bribe  of  Rs.10,000/-   to   the
complainant  –  the  then  Additional  District  Magistrate,  Bharmour   for
inducing him, a public servant, to exercise his influence  to  give  accused
supply orders for the supply of double-decker beds  by  corrupt  or  illegal
means.
Thereafter, complainant  called  police  officials  and  lodged  the
complaint.  List of currency notes  allegedly  given  by  the  accused  were
prepared  and  the  police  officials  recorded  the  statements  of   other
witnesses.
The accused was charged  with  having  committed  the  aforesaid
offences, to which he pleaded not guilty and claimed trial. =
Trail Court

According to the  Special
Judge Chamba, the case had been initially investigated by the then ASI  Prem
Chand- PW7 and the matter was not investigated by an authorized officer  and
there had been miscarriage of justice especially when the statement  of  the
complainant was recorded by more than one  investigating  officer  including
PW-9 Dr. D.K. Chaudhary, the then Dy. S.P.,Chamba.
The other  ground  which
weighed with the Trial Court was that there was no occasion for the  accused
to offer the bribe for  getting  the  supply  of  double-decker  bed  as  no
quotation had been invited by PW-8 and there was no correspondence  in  this
behalf.
Therefore, there was no motive to give the bribe.  The Trial  Court
also  came  to  the  conclusion  that  the  defence  version  that  the  ADM
(complainant) was annoyed with the accused  was  a  plausible  and  reliable
version.
Lastly, the Trial Court held that the prosecution  has  failed  to
prove as to what conversation actually transpired between  the  accused  and
the complainant.
High court

On analyzing the entire evidence,  the  High  Court  recorded  a
conclusive finding about the guilt of the appellant/accused. 
It is  evident
that PW-7 Prem Chand who  was  posted  as  ASI/IO  in  the  Bharmour  Police
Station requested  the  SHO  at  Chamba  to  depute  a  gazette  officer  to
investigate the matter. 
Even if the part of investigation had been  carried
out by PW-7, it cannot be said to be illegal.  
Nothing has  been  said  from
the side of the defence that serious prejudice was caused to the accused  by
reason of the investigation carried out.  
The  High  Court  rightly  pointed
out  that  Bharmour  being  a  tribal  area,  there   is   a   single   line
administration and lot of power is vested  with  the  Resident  Commissioner
since the heads of various departments  or  competent  authorities  are  not
available in Bharmour, and at that time the  ADM-complainant  was  also  the
Resident Commissioner, Bharmour.

Apex court held that
While taking note of the finding recorded by the High  Court,  we  are
fully in agreement that the prosecution has proved charges made against  the
appellant.  The provisions of law considered by  the  High  Court  ought  to
have been followed by the Trial Court.  The Trial Court decided  the  matter
as if the offence has been committed by the appellant under  the  provisions
of penal code.  The Trial Court  has  not  considered  the  gravity  of  the
offence as contemplated under the Prevention of Corruption Act, 1988.

13.   In the facts and circumstances of the  case  and  seriousness  of  the
offence, we fully agree  with  the  view  taken  by  the  High  Court.   The
impugned judgment, therefore, needs no interference.  Hence this appeal  has
no merit and the same is dismissed.

2014 July. Part – http://judis.nic.in/supremecourt/filename=41791

RANJAN GOGOI, M.Y. EQBAL
                                                              ‘REPORTABLE’

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                     CRIMINAL APPEAL NO.(s) 1564 OF 2014
       (Arising out of Special Leave Petition (Crl.) No.6386 of 2012)


Narinder Singh                               ………Appellant

                                   Versus

State of Himachal Pradesh               ……..Respondent


                               J U D G M E N T

M.Y. EQBAL, J.

      Leave granted.

2.    This appeal by special leave is directed against  the  judgment  dated
13.6.2012 and order dated 9.7.2012 pronounced by the High Court of  Himachal
Pradesh, in Criminal Appeal No.169 of 2008 preferred by the  State,  whereby
learned Single Judge of the High Court setting aside the judgment and  order
of acquittal of the Trial Court convicted the  appellant-accused  guilty  of
the offence punishable under Section 12  of  the  Prevention  of  Corruption
Act, 1988 (for short, “the Act”) and sentenced him  to  undergo  six  months
imprisonment.
3.    The prosecution case in brief is that  on  10.12.2002  at  11  AM  the
accused-appellant  attempted  to  give  a  bribe  of  Rs.10,000/-   to   the
complainant  –  the  then  Additional  District  Magistrate,  Bharmour   for
inducing him, a public servant, to exercise his influence  to  give  accused
supply orders for the supply of double-decker beds  by  corrupt  or  illegal
means.  Thereafter, complainant  called  police  officials  and  lodged  the
complaint.  List of currency notes  allegedly  given  by  the  accused  were
prepared  and  the  police  officials  recorded  the  statements  of   other
witnesses.  The accused was charged  with  having  committed  the  aforesaid
offences, to which he pleaded not guilty and claimed trial.
4.    Complainant, who was in-charge of the administration of Bharmour  area
and sanctioning authority, appeared as PW-8 and stated  that  while  he  was
sitting in his office accused entered in his office and talked  with  regard
to the complaints of the quality of the furniture already supplied  by  him.
Thereafter, accused offered to supply double decker beds for the  Government
Senior Secondary School,  Holi.   Upon  which,  complainant  explained  that
there must be a rate contract of those articles and  these  articles  should
be of good quality.  In the meantime, a  senior  assistant-PW2  came  inside
his office and  had  a  discussion  with  the  complainant  with  regard  to
purchase of some door mats and left office room.   Thereafter,  after  using
complainant’s office bathroom with permission, the accused did  not  sit  on
the chair but pulled out the drawer of the table of the complainant and  put
some currency notes in the drawer, which were immediately picked up  by  the
complainant raising objection on it.  On this the accused replied that  this
was his right (hak).  The complainant then  reprimanded  him  and  informing
the SHO Bharmour telephonically asked him to come to his office.
5.    The complainant also called his Statistical Assistant-PW1  and  handed
over the notes to him to prepare list of notes.  In the meantime some  other
officials came into the office of the complainant.   Upon  reaching  of  SHO
Bharmour-PW7 within 15 minutes, the  complainant  made  and  handed  over  a
written complaint along with  20  currency  notes  of  the  denomination  of
Rs.500/- each, duly signed  and  sealed  in  a  parcel.   According  to  the
complainant he  is  not  sure  why  the  accused  offered  him  Rs.10,000/-.
Probably, it was with a view to procure further supply  order.   The  cross-
examination of this witness is to the effect that the  accused  had  earlier
supplied desks and benches for which payment had been made to  the  accused.
The complainant has admitted that double-decker beds were required  for  the
Govt. Girls Hostel at Holi and he could straight way call the  tenders  from
the parties concerned but in this case he had  still  not  invited  tenders.
He, however, stated that he had issued oral directions to the  Principal  of
the hostel to be in touch with the contractors for supply of  double  decker
beds.
6.    On the other side, according to the defence, the complainant  used  to
give supply orders to  the  manufacturers  of  furniture  not  belonging  to
Chamba district and in this connection complaint  was  made  to  the  Deputy
Commissioner, Chamba, and as such, a false  case  has  been  lodged  by  the
complainant against the accused, who is cashier and spokesperson  of  Chamba
Steel Furniture Manufacturing Association.  The defence  also  led  evidence
by  examining  DW-1  Statistical  Assistant,  who   stated   that   although
complainant gave sanctions for  purchase  of  various  articles  to  various
departments in Bharmour area  but  the  record  of  such  sanctions  is  not
available with him as no such copies of sanction orders are retained by  his
office.   DW-2,  owner  of  a  steel  factory  in  Chamba,   stated   during
examination that after transfer of complainant  from  Bharmour  their  units
are getting supply orders.

7.    Considering  the  respective  contentions  of  both  the  parties  and
scrutinizing the records of the case, the Trial Court acquitted the  accused
of the charge by giving him the benefit of doubt.  According to the  Special
Judge Chamba, the case had been initially investigated by the then ASI  Prem
Chand- PW7 and the matter was not investigated by an authorized officer  and
there had been miscarriage of justice especially when the statement  of  the
complainant was recorded by more than one  investigating  officer  including
PW-9 Dr. D.K. Chaudhary, the then Dy. S.P.,Chamba.  The other  ground  which
weighed with the Trial Court was that there was no occasion for the  accused
to offer the bribe for  getting  the  supply  of  double-decker  bed  as  no
quotation had been invited by PW-8 and there was no correspondence  in  this
behalf.  Therefore, there was no motive to give the bribe.  The Trial  Court
also  came  to  the  conclusion  that  the  defence  version  that  the  ADM
(complainant) was annoyed with the accused  was  a  plausible  and  reliable
version.  Lastly, the Trial Court held that the prosecution  has  failed  to
prove as to what conversation actually transpired between  the  accused  and
the complainant.
8.    Aggrieved by the decision of the  Trial  Court,  the  State  preferred
appeal under Section 378 of the Code of Criminal Procedure  contending  that
Trial  Court  did  not  take  into  consideration  the  provisions  of   the
Prevention of Corruption Act especially Section 20(2) and if  it  is  proved
that some money was offered then a presumption had to be raised that it  was
by way of illegal gratification.

9.    After hearing learned Additional Advocate General for  the  State  and
learned senior counsel appearing for the accused and  considering  case  law
and provisions of the Act, learned Single Judge of  the  High  Court  opined
that the judgment delivered by the Trial Court is totally perverse  and  has
been passed without appreciating  the  evidence  or  the  legal  provisions.
Setting aside the judgment of the Trial Court, the High Court convicted  the
accused for an offence punishable under Section 12 of the  Act  and  imposed
upon him minimum sentence of  six  months.  Hence,  the  present  appeal  by
special leave by the accused.

10.   Learned counsel  appearing  for  the  appellant-accused  assailed  the
judgment passed in appeal on the ground, inter alia,  that  the  High  Court
has not correctly appreciated and interpreted the provisions  of  Prevention
of  Corruption  Act,  1988.   According   to   the   learned   counsel   the
investigation was done by the police  officer  who  was  not  an  authorized
officer  in  terms  of  Section  17  of  the  Act  and  thereby  the  entire
investigation is vitiated in law.  The High  Court  also  erroneously  drawn
presumption under Section 20 of the said Act when the prosecution  miserably
failed to prove the demand or offer of any gratification.   Learned  counsel
further submitted that the presumption as contemplated under  Section  20(2)
of the Act can be made applicable only when the public servant accepted  the
illegal  gratification.   Learned  counsel  submitted  that  all   witnesses
examined by the prosecution are  subordinates  of  the  complainant  and  no
independent witness was examined to  prove  the  charges.   It  was  further
contended that charge was framed by the Trial Court for the  admitted  bribe
to the complainant for awarding the supply order of double decker beds,  but
as a matter of fact no such supply order was processed anywhere. Lastly,  it
was contended that no implicit reliance on the testimony of the  complainant
can be placed unless corroborated by independent witnesses.

11.   The impugned judgment  reveals  that  the  High  Court  discussed  the
evidence of the prosecution witnesses as also the evidence  of  the  defence
witnesses.  On analyzing the entire evidence,  the  High  Court  recorded  a
conclusive finding about the guilt of the appellant/accused.  It is  evident
that PW-7 Prem Chand who  was  posted  as  ASI/IO  in  the  Bharmour  Police
Station requested  the  SHO  at  Chamba  to  depute  a  gazette  officer  to
investigate the matter.  Even if the part of investigation had been  carried
out by PW-7, it cannot be said to be illegal.  Nothing has  been  said  from
the side of the defence that serious prejudice was caused to the accused  by
reason of the investigation carried out.  The  High  Court  rightly  pointed
out  that  Bharmour  being  a  tribal  area,  there   is   a   single   line
administration and lot of power is vested  with  the  Resident  Commissioner
since the heads of various departments  or  competent  authorities  are  not
available in Bharmour, and at that time the  ADM-complainant  was  also  the
Resident Commissioner, Bharmour.

12.   While taking note of the finding recorded by the High  Court,  we  are
fully in agreement that the prosecution has proved charges made against  the
appellant.  The provisions of law considered by  the  High  Court  ought  to
have been followed by the Trial Court.  The Trial Court decided  the  matter
as if the offence has been committed by the appellant under  the  provisions
of penal code.  The Trial Court  has  not  considered  the  gravity  of  the
offence as contemplated under the Prevention of Corruption Act, 1988.



13.   In the facts and circumstances of the  case  and  seriousness  of  the
offence, we fully agree  with  the  view  taken  by  the  High  Court.   The
impugned judgment, therefore, needs no interference.  Hence this appeal  has
no merit and the same is dismissed.

14.   The appellant-accused is accordingly directed to  surrender  within  a
period of one month from today to undergo the six  months  sentence  awarded
by the High Court, failing  which  the  Trial  Court  shall  take  necessary
steps.  The Registry is directed to immediately communicate  this  order  to
the Trial Court.

                                                              ………………………………J.
                                                              (Ranjan Gogoi)



                                                             ……………………………….J.
                                                                (M.Y. Eqbal)
New Delhi
July 25, 2014

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