DASHRATH SINGH CHAUHAN versus CENTRAL BUREAU OF INVESTIGATION on 9 October 2018

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SUPREME COURT REPORTS

[2018] 12 S.C.R.

DASHRATH SINGH CHAUHAN

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v.

CENTRAL BUREAU OF INVESTIGATION

(Criminal Appeal No. 1276 of 2010)

BOCTOBER 09, 2018

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Prevention of Corruption Act, 1988 – ss.7 and 13(2) r/w13(1) (d) – Conviction under – When not proper – Complainant(PW-1) lodged FIR against the appellant and co-accused, bothCemployees of Delhi Electricity Supply Undertaking (DESU)complaining that appellant demanded bribe – The bribe money wasnot accepted by the appellant, who asked complainant to give it tothe co-accused – Trial court acquitted both the accused of the chargeof conspiracy u/s.120-B, IPC however, convicted the appellant forDoffences u/ss.7 and 13(2) r/w s.13(1)(d) of the 1988 Act – HighCourt affirmed the judgment of the Trial Court – On appeal, held:When the charge against both the accused in relation to conspiracywas not proved and both the accused were acquitted from the saidcharge which resulted in acquittal of the co-accused from all thecharges under the 1988 Act, a fortiori, the appellant too was entitledEfor his clean acquittal from the charges under the PC Act –Prosecution failed to prove the factum of acceptance of bribe moneyby the appellant from the complainant as per the charges framedagainst him – In order to attract the rigors of ss.7, 13(2) r/w 13(1)(d)of the 1988 Act, the prosecution was under legal obligation to proveFthe twin requirements of “demand and acceptance of bribe moneyby the accused”, the proving of one alone but not the other was notsufficient – Appellant entitled for acquittal from the charges framedagainst him under the PC Act too – Impugned judgment set aside –Conviction and the sentence awarded to the appellant u/ss.7,13(2) r/w s.13(1)(d) of the 1988 Act by the Courts below set aside.

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Allowing the appeal, the Court

HELD: 1.1 The Trial Court, on appreciation of the evidence,held that the prosecution failed to prove the charge of conspiracyunder Section 120-B IPC against the appellant and the co-accused H

and accordingly acquitted both of them from the said charge. Theco-accused was acquitted from all the charges framed under thePrevention of Corruption Act, 1988. The State neither challengedthe clean acquittal of the co-accused and nor challenged the partacquittal of the appellant in the High Court by filing any appeal.This, therefore, attained finality. [Para 23] [920-F-G]

1.2 When the charge against both the accused in relationto conspiracy was not held proved and both the accused wereacquitted from the said charge which, in turn, resulted in cleanacquittal of the co-accused from all the charges under the PCAct, a fortiori, the appellant too was entitled for his clean acquittalfrom the charges under the PC Act. It is not the case of theprosecution that the appellant had conspired with another personand even though the identity of the other person was notestablished, yet the appellant was held guilty for the offence underSection 120-B IPC. [Paras 25, 26] [921-B-D]

1.3 Once the co-accused so also the appellant stoodacquitted in respect of the charge of conspiracy and further theco-accused was also acquitted from the charges under the PCAct, the charges against the appellant must also necessarily fallon the ground. Even assuming that despite the appellant beingacquitted of the charge relating to conspiracy and notwithstandingthe clean acquittal of the the co-accused from all the charges, theprosecution failed to prove the charge against the appellant underSections 7, 13(2) read with Section 13(1)(d) of the PC Act.[Paras 27, 28] [921-E-F]

1.4 It is for the reason that in order to prove a case againstthe appellant, it was necessary for the prosecution to prove thetwin requirement of “demand and the acceptance of the bribeamount by the appellant”. It was the case of the prosecution inthe charge that the appellant did not accept the bribe money butthe money was accepted and recovered from the possession ofthe co-accused. In such circumstances, there is no evidence toprove that the appellant directly accepted the money from theComplainant. Since the plea of conspiracy against the appellantand the co-accused failed, it cannot be held that money(Rs.4000/-) recovered from the possession of the co-accused was A

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Aas a fact the bribe money meant for the appellant for holding himguilty for the offences punishable under Sections 7, 13(2) readwith 13(1)(d) of the PC Act. It is more so when the benefit ofsuch acquittal from the charge of conspiracy was given to theco-accused but was not given to the appellant. [Paras 29, 30][921-G-H; 922-A-B]

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1.5 The prosecution, therefore, failed to prove the factumof acceptance of bribe money of Rs.4000/- by the appellant fromthe Complainant as per the charges framed against him. Since inorder to attract the rigors of Sections 7, 13(2) read 13(1)(d) ofPC Act, the prosecution was under a legal obligation to proveCthe twin requirements of “demand and acceptance of bribe moneyby the accused”, the proving of one alone but not the other wasnot sufficient. The appellant is, therefore, entitled for acquittalfrom the charges framed against him under the PC Act too. Theconviction and the sentence awarded to the appellant underDSections 7, 13(2) read with Section 13(1)(d) of the PC Act by theCourts below are set aside and the appellant is set free from thesaid charges. [Paras 31-33] [922-C-F]

Bhagat Ram v. State of Rajasthan(1972) 2 SCC 466 :[1972] 3 SCR 503;M. K. Harshan v. State of KeralaE(1996) 11 SCC 720 – relied on.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1276 of 2010

From the Judgment and Order dated 20.07.2009 of the High Courtof Delhi at New Delhi in Crl. Appeal No. 447 of 2001.G

Rishi Malhotra, Adv. for the Appellant.

Ms. Geeta Luthra, Sr. Adv., P. K. Dey, T. A. Khan, Ujjwal Jain,Arvind Kumar Sharma (for Mukesh Kumar Maroria), Advs. for theRespondent.

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The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 20.07.2009 passed by theHigh Court of Delhi at New Delhi in Criminal Appeal No.447 of 2001whereby the High Court dismissed the appeal filed by the appellant hereinand upheld his conviction and sentence awarded by order dated31.05.2001 passed by the Special Judge, Delhi in C.C. No.53 of 1995acquitting him of the charge under Section 120-B of the Indian PenalCode, 1860 (hereinafter referred to as “IPC”) and convicting him forthe charges under Sections 7, 13(2) read with 13(1)(d) of the Preventionof Corruption Act, 1988 (hereinafter referred to as “the PC Act”) andsentenced him to undergo rigorous imprisonment for a period of twoyears and to pay a fine of Rs.40,000/- under Sections 7 and 13(2) readwith Section 13(1)(d) of the PC Act cumulatively, in default of paymentof fine, he shall further undergo simple imprisonment for six months.

2. In order to appreciate the issues involved in this appeal, fewfacts need mention hereinbelow.

3. In short, the case of the prosecution is that the appellant wasan employee of Delhi Electric Supply Undertaking (DESU). At therelevant time, he was working on the post of Inspector.

4. On 28.03.1995, the complainant-Arun Kumar (PW-1) lodgedan FIR under Section 7 read with Section 13(2) of the PC Act againstthe appellant and another employee of DESU namely, Rajinder Kumarcomplaining inter alia that in January 1995, he applied for installation ofan electric connection for his factory and for that purpose he met theappellant in his office where he demanded from him Rs.4000/- for doingthe abovesaid work and told him that unless he pays a sum ofRs.4000/- as bribe to him, it is not possible to install the electric connection.

5. On the basis of the said FIR, the CBI through its Inspector-Mr. Kaul (PW-6) formed a raiding party on 29.03.1995 to implicate theappellant and then reached to his office with one shadow witness Mahinder(PW-2).

6. On reaching the office, the Complainant told the appellant thathe has brought Rs.4000/- as demanded by him. The appellant, however,told the Complainant to give the said money to Rajinder Kumar, whoaccepted the money from him. No sooner Rajinder Kumar accepted the A

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Amoney, than PW-2 and PW-6 entered in the room and caught RajinderKumar with the bribe money.

7. This led to initiation of the prosecution of the appellant and co-accused Rajinder Kumar for commission of the offences punishableunder Sections 7, 13(2) and 13(1)(d) of the PC Act read with SectionB120-B of IPC in the Court of Special Judge Delhi. The prosecutionexamined their witnesses to prove the three charges framed againstboth the accused. The appellant also adduced defense evidence.

8. By judgment dated 31.05.2001, the Trial Court (Special Judge)held that the prosecution failed to prove the case of any conspiracyCbetween the appellant (A-1) and co-accused Rajinder Kumar (A-2) inrelation to the offences in question and, therefore, the charge ofconspiracy against them under Section 120-B IPC was held as notmade out. Both the accused were, therefore, acquitted of the charge ofconspiracy under Section 120-B IPC.

D9. The finding on this issue recorded by the Trial Court in Paras14 and 16 reads as under:- “14. In the case before us, there is not even slightestevidence about the existence of a criminal conspiracybetween A-1 and A-2. Once this had been established, onlyEthen we could have read the statement of both the accused,not only against each one of them, but against the other ofthem and also for proving the existence of criminalconspiracy as such.

16. There is no such situation before us. There are certainFstatements only. In any case, once conspiracy is notestablished, even the statement, made by A-1 against A-2are vice-versa, cannot be read in evidence.”

10. The Trial Court then disbelieved the evidence of theInvestigating Officer-Mr. Kaul (PW-6) on the ground that he himselfwas of a doubtful integrity because the High Court, in one case, hadGdirected registration of a bribe case against him and, therefore, hisevidence in this case cannot be relied on (See Para 17 of the judgmentof the Trial Court) but the Trial Court believed the evidence of shadowwitness (PW-2 - Mahinder Lal) for holding the appellant guilty of theoffences punishable under the PC Act.

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11. The Trial Court accordingly acquitted Rajinder Kumar (A-2)from all the charges but convicted the appellant(A-1) for the offencespunishable under Sections 7 and 13 (2) read with 13(1)(d) of the PCAct.

12. The State, however, accepted the judgment of the Trial Courtand did not file any appeal against the acquittal of Rajinder Kumar noreven file any appeal against the acquittal of the appellant from the offenceunder Section 120-B IPC.

13. The appellant (A-1), felt aggrieved by his conviction andsentence under the PC Act, filed criminal appeal in the High Court atDelhi. By impugned order, the High Court dismissed the appeal andaffirmed the judgment of the Trial Court which has given rise to filing ofthe present appeal by way of special leave by the appellant(A-1) in thisCourt.

14. Heard learned counsel for the parties.

15. Mr. Rishi Malhotra, learned counsel appearing for the appellant(A-1) while assailing the legality and correctness of the impugned ordermainly argued two points.

16. In the first place, learned counsel contended that the TrialCourt as well as the High Court having rightly acquitted both the accused(A-1 and A-2) insofar as the offence of conspiracy under Section 120-B is concerned and further having rightly acquitted Rajinder Kumar (A-2) from all the charges under the PC Act but erred in not acquitting theappellant(A-1) from the offences under Sections 7, 13(2) read withSection 13(1)(d) of the PC Act.

17. It was his submission that once the charge of conspiracy underSection 120-B IPC was held as “not proved” against the appellant(A-1)and the co-accused Rajinder Kumar(A-2) and further its benefit wasrightly extended to Rajinder Kumar (A-2) for his clean acquittal fromthe charges under the PC Act, the same benefit should have been extendedto the appellant(A-1) as well.

18. In the second place, the learned counsel contended that theappellant’s conviction is based only on the evidence of a shadow witness(PW-2) whereas the evidence of the Investigation Officer, Mr. Kaul(PW-6) was not believed due to his doubtful integrity.

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A19. It was his submission that the basic requirements in such acase, namely, proving of “demand of bribe and its acceptance by theappellant” was not proved much less beyond reasonable doubt. It wasurged that at best what the prosecution was able to prove was the“demand” of bribe made by the appellant to the Complainant but not “itsacceptance” because the evidence, in clear terms, established coupledBwith the findings of the Courts below that the appellant did not acceptthe money but it was accepted and recovered from the possession ofRajinder Kumar(A-1).

20. It was, therefore, urged that since the acceptance of bribemoney was not proved qua the appellant and nor it was proved thatCRajinder Kumar accepted it for and on behalf of the appellant, theappellant’s conviction under any of the provisions of the PC Act muchless under Sections 7, 13(2) read with Section 13(1)(d) was not legallysustainable and hence it deserves to be set aside.

21. In reply, learned counsel for the respondent (CBI) supportedDthe reasoning and the conclusion arrived at by the two Courts below andcontended that no case for any interference in the impugned judgment ismade out and hence the appeal be dismissed.

22. Having heard the learned counsel for the parties and on perusalof the record of the case, we find force in the submissions of the learnedEcounsel for the appellant.

23. It is not in dispute that the prosecution had framed three chargesagainst the appellant and co-accused-Rajinder Kumar and two out ofthe three charges, namely, Charge Nos. 1 and 2 were based on theconspiracy. It is also not in dispute that the Trial Court, on appreciationFof the evidence, held that the prosecution failed to prove the charge ofconspiracy under Section 120-B IPC against the appellant and RajinderKumar (A-1) and accordingly acquitted both of them from the saidcharge. It is also not in dispute that so far as co-accused-Rajinder Kumar(A-1) is concerned, he was acquitted from all the charges framed underthe PC Act. It is also not in dispute that the State neither challenged theGclean acquittal of Rajinder Kumar and nor challenged the part acquittalof the appellant in the High Court by filing any appeal. This, therefore,attained finality.

24. In substance, the charges against both the accused were thatthe appellant entered into a criminal conspiracy with Rajinder Kumar toHdemand and accept illegal bribe money of Rs. 4000/- from the Complainant-Arun Kumar as a motive or reward for showing him officialfavour in the matter of installation of electricity power connection and,in furtherance thereof, the appellant on 28.03.1995 as also on 29.03.1995around 11.30 AM to 11.55 AM in the DESU office demanded Rs.4000/-from the complainant and directed him to pay the said money to RajinderKumar-co accused, who accepted the said money on his behalf.

25. In our considered opinion, when the charge against both theaccused in relation to conspiracy was not held proved and both theaccused were acquitted from the said charge which, in turn, resulted inclean acquittal of Rajinder Kumar from all the charges under the PCAct, a fortiori, the appellant too was entitled for his clean acquittal fromthe charges under the PC Act.

26. It is not the case of the prosecution that the appellant hadconspired with another person and even though the identity of the otherperson was not established, yet the appellant held guilty for the offenceunder Section 120-B IPC. On the contrary, we find that the case of theprosecution was that the appellant conspired with one Rajinder Kumarto accept the sum of Rs.4000/- as illegal gratification from Arun Kumar-the complainant.

27. Once Rajinder Kumar so also the appellant stood acquitted inrespect of the charge of conspiracy and further Rajinder Kumar- co-accused was also acquitted from the charges under the PC Act, thecharges against the appellant must also necessarily fall on the ground.(See Para 15 Bhagat Ram vs. State of Rajasthan, (1972) 2 SCC466).

28. Even assuming that despite the appellant being acquitted ofthe charge relating to conspiracy and notwithstanding the clean acquittalof Rajinder Kumar from all the charges, the prosecuton failed ot provethe charge against the appellant under Sections 7, 13(2) read with Section13(1)(d) of the PC Act.

29. It is for the reason that in order to prove a case against theappellant, it was necessary for the prosecution to prove the twinrequirement of “demand and the acceptance of the bribe amount by theappellant”. As mentioned above, it was the case of the prosecution inthe charge that the appellant did not accept the bribe money but themoney was accepted and recovered from the possession of RajinderKumar–co-accused (A-1).

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A30. In such circumstances, there is no evidence to prove that theappellant directly accepted the money from the Complainant. Since theplea of conspiracy against the appellant and Rajinder Kumar failed, itcannot be held that money (Rs.4000/-) recovered from the possessionof Rajinder Kumar was as a fact the bribe money meant for the appellantfor holding him guilty for the offences punishable under Sections 7, 13(2)Bread with 13(1)(d) of the PC Act. It is more so when the benefit of suchacquittal from the charge of conspiracy was given to Rajinder Kumarbut was not given to the appellant.

31. In our view, the prosecution, therefore, failed to prove thefactum of acceptance of bribe money of Rs.4000/- by the appellantCfrom the Complainant on 29.03.1995 as per the charges framed againsthim.

32. Since in order to attract the rigors of Sections 7, 13(2) read13(1)(d) of PC Act, the prosecution was under a legal obligation to provethe twin requirements of “demand and acceptance of bribe money byDthe accused”, the proving of one alone but not the other was not sufficient.The appellant is, therefore, entitled for acquittal from the charges framedagainst him under the PC Act too. (See para 8 of M.K. Harshan vs.State of Kerala, (1996) 11 SCC 720)

33. In view of the foregoing discussion, the appeal succeeds andEis accordingly allowed. The impugned judgment is set aside. Theconviction and the sentence awarded to the appellant under Sections 7,13(2) read with Section 13(1)(d) of the PC Act by the Courts below areset aside and the appellant is set free from the said charges.

34. If the appellant is already on bail, it is not necessary for him toFsurrender.

Divya Pandey

Appeal allowed.

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