SOUNDARAJAN versus STATE REP. BY THE INSPECTOR OF POLICE VIGILANCE ANTICORRUPTION DINDIGUL on 17 April 2023

1. The appellant was convicted for the offences punishable underSection 7 and Section 13(2) read with Section 13(1)(d) of the PreventionFof Corruption Act, 1988 (for short, ‘the PC Act’). The appellant wassentenced to undergo imprisonment for one year and to pay a fine of Rs.2,000/-. High Court, by the impugned judgment, has confirmed theconviction and sentence of the appellant.

2. The appellant was holding the post of Sub-Registrar atGKannivadi, Dindigul District, Tamil Nadu. The complainant M.Sundaramoorthy (PW-2), had purchased land measuring 16.05 cents.Accordingly, on 12[th] July 2004, sale deed was presented before theappellant who was the Sub-Registrar in the concerned office. Thecomplainant and his vendors were present. According to the case madeout by the complainant in his complaint, apart from getting the sale deedH

typed on a stamp paper of Rs.880/-, he paid a sum of Rs.190/- towardsthe registration charges of the sale deed. A receipt for the said amountwas issued by the appellant. On 16[th] July 2004, when the complainantvisited the appellant’s office, he was informed to bring FMB Sketchfrom the concerned Government office. According to the complainant,on 31[st] July 2004, the said sketch was produced by him. After the sketchwas produced, the appellant informed him that he would have to make asite visit. Accordingly, the complainant arranged for transport for theappellant to enable him to make a site visit. After noticing trees on theland, the appellant instructed the complainant to get a TOPO Sketchfrom the concerned office to show that the land subject matter of salewas cultivable. Thereafter, the complainant obtained requisite documentsand handed over the same to the appellant on 6[th] August 2004 at 11.30am. According to the complainant, at that time, the appellant demandedgratification of Rs.500/- for handing over the registered sale deed. Asthe complainant was not willing to give gratification, on 11[th] August 2004,he filed a complaint with the Inspector of Police of the Anti-CorruptionUnit.

3. Based on the complaint, a trap was laid on 12[th] August 2004,which was unsuccessful. According to the prosecution case, the trapwas again laid on 13[th] August 2004. It was successful, and in the presenceof the shadow witness Michael (PW-3), the appellant was caught red-handed while accepting the bribe.

4. The prosecution examined 12 witnesses. PW-1 N.DhanamJeyan was examined to prove the sanction order. As stated earlier, PW-2 M.Sundaramoorthy is the complainant and PW-3 Michael is the shadowwitness. No other witness is relevant for proving the alleged demandmade by the appellant. The complainant (PW-2) did not support theprosecution and was declared as hostile. The appellant examined twodefence witnesses, S. Kathiresan and Kalaiselvi to bring on the recordaudit report of the office in which the appellant was working and acircular issued by the Inspector General of Registration, which requiredthe Sub-Registrar to visit a land subject matter of sale deed for ascertainingits valuation.

SUBMISSIONS

5. The learned senior counsel Mr S.Nagamuthu, appearing forthe appellant, submitted that there was no charge framed as regards the AB

C

D

E

F

G

H

136SUPREME COURT REPORTS

Ademands made on 6th August 2004 and 13[th] August 2004. Inviting ourattention to the first charge framed by the Special Court, he urged thatthe charge is about the alleged demand made on 12[th] July 2004 when thesale deed was registered. He submitted that even according to theprosecution case, there was no demand made on 12[th] July 2004 at thetime of the registration of the sale deed. He submitted that because ofBthis material defect in the charge and omission to frame a proper chargeregarding demand allegedly made on 6[th] August 2004 and 13[th] August2004, grave prejudice has been caused to the appellant, who could notdefend himself properly.

6. The learned senior counsel for the appellant submitted that, inCany event, the complainant had not supported the prosecution, and theshadow witness (PW-3) did not depose that in his presence there wasany demand of the sum of Rs.500/- by the appellant for returning thesale deed to the complainant. He urged that the offence punishable underSection 7 was not made out without proof of demand. He urged that as Dno offence was made out under Section 7, even the offence under clause(d) of sub-section (1) of Section 13 was not established.

7. Dr Joseph Aristotle, the learned counsel representing the StateGovernment, submitted that in view of Section 464 of the Code of CriminalProcedure, 1973 (for short ‘CrPC’), no defect or omission in the framingEof charge is fatal to the prosecution case unless any prejudice causeddue to the said omission or failure of justice is established by the accused.He submitted that, in this case, prejudice has not been shown.

8. He relied on this Court’s decisions in the cases of MohanSingh v. State of Bihar[1]and Union of India v. Ex-GNR Ajeet Singh[2].FThe learned counsel lastly relied upon a decision of the ConstitutionBench in the case of Neeraj Dutta v. State (Govt. of NCT of Delhi)[3]for submitting that a demand for gratification can be established even onthe basis of circumstantial evidence.

FINDING ON PROOF OF DEMANDG

9. We have considered the submissions. It is well settled that forestablishing the commission of an offence punishable under Section 7

1 (2011) 9 SCC 272

2 (2013) 4 SCC 186H3 2022 SCC online SC 1724

of the PC Act, proof of demand of gratification and acceptance of thegratification is a sine qua non. Moreover, the Constitution Bench inthe case of Neeraj Dutta[3] has reiterated that the presumption underSection 20 of the PC Act can be invoked only on proof of facts inissue, namely, the demand of gratification by the accused and theacceptance thereof.

10. As stated earlier, complainant PW-2 has not supported theprosecution. He has not said anything in his examination-in-chief aboutthe demand made by the appellant. The public prosecutor cross-examinedPW-2. The witness stated that there was no demand of a bribe made bythe appellant. According to him, he filed a complaint as the return of thesale deed was delayed. Though PW-2 accepted that he had filed thecomplaint, in the cross-examination, he was not confronted with thematerial portions of the complaint in which he had narrated how thealleged demand was made. The public prosecutor ought to haveconfronted the witness with his alleged prior statements in the complaintand proved that part of the complaint through the concerned police officerwho had reduced the complaint into writing. However, that was notdone.

11. Now, we turn to the evidence of the shadow witness (PW-3).In the examination-in-chief, he stated that the appellant asked the PW-2whether he had brought the amount. PW-3 did not say that the appellantmade a specific demand of gratification in his presence to PW-2. Toattract Section 7 of the PC Act, the demand for gratification has to beproved by the prosecution beyond a reasonable doubt. The word used inSection 7, as it existed before 26[th] July 2018, is ‘gratification’. There hasto be a demand for gratification. It is not a simple demand for money, butit has to be a demand for gratification. If the factum of demand ofgratification and acceptance thereof is proved, then the presumptionunder Section 20 can be invoked, and the Court can presume that thedemand must be as a motive or reward for doing any official act. Thispresumption can be rebutted by the accused.

12. There is no circumstantial evidence of demand for gratificationin this case. In the circumstances, the offences punishable under Section7 and Section 13(2) read with Section 13(1)(d) have not been established.Unless both demand and acceptance are established, offence of obtainingpecuniary advantage by corrupt means covered by clauses (i) and (ii) ofSection 13(1)(d) cannot be proved.

AB

C

D

E

F

G

H

AEFFECT OF THE FAILURE TO FRAME A PROPERCHARGE

13. We must deal with another argument made by the learnedsenior counsel appearing for the appellant. That is about the failure toframe a proper charge for the offence punishable under Section 7. TheBrelevant portion of the charge reads thus:

“You, working as the Sub Registrar at Kannivadi, Dindigul Districtfrom 27.10.2003 to 27.10.2003 and as such you are a public servantyou registered the sale deed of 16.05 cents of land purchased bySundaramoorthy on 12.07.2004 and demanded a sum of Rs.500/-Cfrom Sundaramoorthy as gratification other than legalremuneration for returning the registered document and alsoreceived Rs.500/- as bribe, hence you disclosed the offencespunishable u/s. 7 of Prevention of Corruption Act 1988 and triableby this Court.”

D

14. Thus, the Special Court omitted to frame a specific charge ondemand allegedly made by the appellant on 6[th] and 13[th] August 2004 andacceptance thereof on 13[th] August 2004.

15. Under Section 464 of CrPC, omission to frame a charge orany error in charge is never fatal unless, in the opinion of the Court, aEfailure of justice has in fact been occasioned thereby. In this case, fromthe perusal of the cross-examination of PW-3 and other prosecutionwitnesses made by the Advocate for the appellant, it is apparent that theappellant had clearly understood the prosecution case about the firstalleged demand made on 6[th] August 2004 and the subsequent allegedFdemand and acceptance on 13[th] August 2004. There is no doubt that thisis a case of omission to frame a proper charge, and whatever chargehas been framed is, per se defective. However, by reason of the saidomission or defect, the accused was not prejudiced insofar as his right todefend is concerned. Therefore, in this case, the omission to frame chargeand/or error in framing charge is not fatal.G

16. We find that, in this case, the charge has been framed verycasually. The Trial Courts ought to be very meticulous when it comes tothe framing of charges. In a given case, any such error or omission maylead to acquittal and/or a long delay in trial due to an order of remandwhich can be passed under sub-section (2) of Section 464 of CrPC.H

SOUNDARAJAN v. STATE REP. BY THE INSP. OF POLICEVIG. ANTICORRUPTION DINDIGUL [ABHAY S. OKA, J.]

Apart from the duty of the Trial Court, even the public prosecutor has aduty to be vigilant, and if a proper charge is not framed, it is his duty toapply to the Court to frame an appropriate charge.

17. The appeal is allowed. The impugned judgments are quashedand set aside, and the appellant is acquitted of the offences alleged againsthim. The bail bonds of the appellant stand cancelled.

Nidhi Jain

Appeal allowed.

(Assisted by : Yash Chavan and Tamana, LCRAs)

A

B

C

D

E

F

G

H