CRAA/23/2011 of STATE OF JAMMU AND KASHMIR Vs RAJ KUMAR FOTEDAR on 30 December 2022

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CRAA No. 23/2011 CrlM No. 2182/2021

Pronounced on: 30.12.2022

State of J&K

…. Petitioner/Appellant(s)Through:- Mr. Raman Sharma, AAG.

V/s

Raj Kumar Fotedar

…..Respondent(s)

Through:- Mr. Abhinav Sharma, Sr. Advocate with Mr. Vishal Sharma, Advocate.

CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT

01. This appeal is directed against the judgment dated 27.10.2010 passed by the learned Special Judge Anti Corruption, Jammu in case titled ‘State of J&K vs. Raj Kumar Fotedar’ arising out of FIR No. 09/2003 for offences under Section 5(2) of J&K P.C. Act read with Section 161 of RPC, the respondent/accused has been acquitted of the charge.

02. The fact of the case, in brief, are that complainant Vijay Kumar approached the vigilance organization Jammu with a written complaint alleging that the accused had demanded illegal gratification of Rs. 5,000/- for sanction of electric connection to the installation of Atta Chakki at Village Shama Chak. On the basis of this written complaint, an FIR No. 9/2003 for offence under Section 5(2) of J&K PC Act read with Section 161 RPC was registered. The members of vigilance organization accompanied by complainant and witnesses laid the trap, and the accused, as per the prosecution version was caught red handed while demanding and accepting illegal gratification of Rs. 5,000/- from the complainant.

The tainted money is stated to have recovered from the respondent accused. The offences under Section 5(2) of J&K PC Act read with Section 161 RPC were found to be established against the accused and charge sheet was put up before the trial court after the sanction for prosecution of the accused was accorded by Government vide order No. 35/GAD dated 29.09.2003.

03. The respondent/accused pleaded not guilty to the charges. The prosecution after completing the prosecution evidence and examined as many as 24 witnesses and the respondent/accused also examined one in his defence.

04. The learned trial Court after considering the facts and the evidence produced, and after hearing the parties, came to the conclusion that the charges against respondent accused were not proved and accordingly, acquitted the accused of the charges in terms of the judgment.

05. The appellant has assailed the impugned judgment on the ground that the learned trial Court has failed to appreciate the circumstantial and other evidence on record and acquitted the accused. It is also submitted that the learned trial Court had erred in holding that bribe money allegedly demanded and accepted was not the bribe amount but arrears of rent of a house belonging to the father of the complainant. The trial Court had also erred in holding that the respondent/accused had already done his job in processing of electric connection case of the complainant, as such, there was no occasion for him to demand bribe from the respondent. The trial Court has, thus, taken a hyper-technical view and acquitted the accused when circumstantial evidence proved the guilt.

06. Heard learned counsel for the parties and perused the record.

06. Heard learned counsel for the parties and perused the record.

07. The case of prosecution against the accused is that he demanded Rs. 5,000/- as illegal gratification for release of electric connection installation at his Atta Chakki machine. The father of the complainant Rachpal Singh had applied for electric connection for his Atta Chakki machine to the Divisional Engineer, who had marked the same to the Junior Engineer. The respondent/accused went on spot and submitted the report in the month of October when the file was delivered to him. The file was then placed before the Assistant Engineer/ Mr. Wattal at this office at Janipur, but the matter could not be pursued on account of his domestic engagement. The complainant then met with Mr. Wattal in his office and asked him about his file, who told him to prepare a CDR of Rs. 4,400/-. The respondent/accused thereafter met the complainant per chance and enquired why his case was not settled, and thereafter took him to the office of AE and told him that there was an outstanding balance of Rs. 7,000/- in respect of his house at Shama Chak. The complainant informed him that he had already deposited CDR of 4,400/-. Then the respondent/accused told him to pay Rs. 5,000/- only in the next meeting. The complainant felt that the respondent/accused was demanding bribe and he straightaway went to the office of vigilance and lodged a complaint against the respondent.

08. The trap team arrived at Janipur, Sub Division Office, the complainant then met with the respondent/accused who asked him if he has the money and on his reply took him to the Revenue Clerk but the Revenue Clerk was not on his seat. The respondent/accused then told him to have a cup of tea first, after having tea he was informed by respondent that revenue clerk had yet not come and told the accused to take the money and deposit it with the revenue clerk and respondent/accused asked him to stay for some time more so that revenue clerk would come and he would deposit the money himself, but the complainant stated that he had no time to wait and he would pay to the respondent/accused who would manage everything. Thereafter, the trap team came and when the accused was arrested he was saying that he has been caught for no fault. He stated further that at the time of trap even he told vigilance officials to check whether accused deposits the money or retains it with him but the team members did not listen to him and he did not demand the bribe.

09. PW Rachpal Singh, father of the complainant, who had applied for electric connection to the Atta Chaki installation, admitted that he had disposed of his house in 1999 in Shama Chak for which he did not pay any dues after 1998. PW Ashok Kumar stated that he was posted as AE in Janipur Division III and Rachpal Singh had given an application for electric connection to his installation. This application was endorsed to the respondent/accused for submitting feasibility of grant of electric connection installation. The application was received back on 06.02.2003 along with CDR of Rs. 4,400/-. In cross examination he has stated that he had endorsed the application to SDC in presence of respondent/accused and the respondent had no role thereafter. He also admits that an outstanding amount of Rs. 7,000/- is in the name of Rachpal Singh and his son to be recovered from him. PW Ghulam Rasool was a member of the lead team was declared hostile. PW Abdul Rehman independent witness was summoned from Social Welfare Office. He stated about the recovery of illegal gratification received by the accused from the pocket of the accused. In his cross examination, he stated that at the time of trap, the

accused was crying that he had demanded fees from the complainant but was trapped for no fault. Pervez Ahmed independent witness also stated to pre-trap proceedings and recovery having effected from the accused. The shadow witness also stated that he and Parvez Ahmed followed by complainant and after having tea with the complainant, the accused gave the file and told him to give it to SDC. The complainant gave the money to the accused, who kept it in his pocket from where it was recovered.

10. The complainant admits that he lodged the complaint as per his understanding of facts on doubt that the accused is demanding bribe though he was demanding electricity dues. The explanation given by the respondent/accused and from the statement of the complainant, it is clear that the accused did not demand money from him. The learned trial Court while adjudicating the statement has observed that the money given by the complainant was for electricity dues with the revenue clerk. So, it would not constitute bribe even if it is recovered from the possession of the accused in view of the statement of the complainant.

11. For proving the demand and acceptance the prosecution had relied upon the deposition of the appellant and the witnesses but from the perusal of the statement, it is not forthcoming that he handed over currency to the accused on his demand and amount was accepted as bribe. There is no mention of the complainant giving bribe money on demand and its acceptance by the respondents. It was incumbent upon the shadow witness to see and hear the conversation between the appellant and the respondent, however, in his cross examination the witness stated that the appellant went inside the office of the accused, he stood outside and he did not hear the conversation between the appellant as well as the respondents. Apart from this deposition, there is no evidence to substantiate demand and acceptance of the illegal gratification.

12. The learned trial Court stated that the offence against the accused should have been established through cogent and convincing evidence which the prosecution failed to establish. As per the complainant version, the respondent/accused and already completed formalities and submitted his report and handed the same to complainant in October. Thereafter, the complainant met the respondent/accused four month after the incidence and both AE and respondent told the complainant regarding payment of arrears. The explanation was given by the complainant himself was that the same was for being deposited as arrears, if due. So even if the money was recovered from possession of the accused, the same would not prove that it was illegal gratification demanded and accepted by the accused. The trial Court, thus, held that even if the prosecution version is admitted to be correct, it still does not prove the demand and acceptance of bribe by the accused to hold him guilty and the prosecution failed to bring home the guilt.

13. The complainant in his statement stated that the complaint was lodged on doubt that the respondent/accused was demanding bribe money. Thereafter, it is admitted by the complainant that the respondent/accused told him to wait for few minutes so that the amount arrears granted could be deposited with the revenue clerk.

14. From the evidence on record, it is clear that demand and acceptance of bribe money by the respondent accused in the trap proceedings have not been established beyond reasonable doubt. The prosecution has failed to establish the ingredients of the offence against the accused.

15. There is no specific statement to substantiate the acceptance of illegal gratification by the respondents. The contention that the appellant and the complainant and the shadow witness supported the case of prosecution is without any substance.

16. The submission of the appellant that the trial court has erroneously acquitted the respondent in spite of the recovery of the tainted money from him lacks merit. The recovery of currency notes from the respondent is not itself enough for conviction. In order to succeed in the case of corruption, it must be shown first that there was a demand of bribe by appellant and acceptance of bribe money from the complainant. Absence of proof of either of these ingredients would entail the future of the prosecution case. It is observed that neither the demand of bribe and nor its acceptance stands established, it lacks corroboration, i.e., lack of corroboration in material particulars to the testimony of the complainant and secondly the absence for proof of demand for illegal gratification by the accused and further when the money was paid and when it was received was missing.

17. The Hon‟ble Supreme court in a case titled ‘K. Shanthamma vs. The State Of Telangana’, 2022(2) RCR (Criminal) 195, has held that the proof of demand of bribe and acceptance of illegal gratification is sine quo non mere recovery of currency notes is not enough. Paragraph 23 of the judgment being relevant reads as under:

“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 therefore, 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 there under.”

18. In M. R. Purushotham vs State of Karnataka (Criminal Appeal No. 1578 of 2011 decided on 16.09.2014. From the enunciation of aforesaid law on the subject, it is clear that the proof of demand of illegal gratification and its voluntary acceptance by the accused is gravamen of the offence under Section 5(1)(d) of the PC Act. Mere acceptance of any amount allegedly by way of illegal gratification of recovery thereof dehors the proof of demand would, thus, not be sufficient to bring home the charge under the aforesaid provision. Failure of the prosecution to prove the demand and voluntary acceptance of illegal gratification would, therefore, be fatal to the prosecution case against the accused who has been charged for offence under Section 5(1)(d) of the PC Act.

19. The scope of interference in an appeal against acquittal has been well settled by the Hon‟ble Apex Court in a case titled ‘Mrinal Das and others vs. The state of Tripura’, (2011) 9 SCC 479, by holding as under:

“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. 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.”

20. Similarly, in “Murugesan v State”, (2012) 10 SCC 383, the Hon‟ble Apex Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial Court. In the said judgment, it has been categorically held that only in cases where the conclusion recorded by the trial Court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of „possible view‟ to „erroneous view' or „wrong view is explained and it has been held that if the view taken by the trial Court is a „possible view‟, the High Court cannot reverse the acquittal to that of the conviction.

21. In view of the aforesaid reasons, the view taken by the learned trial court that charges against the respondent/accused are not established and no ground for interference is made out. This appeal is without any merit and is, accordingly, dismissed.

Jammu30.12.2022 Michal Sharma

(Sindhu Sharma) Judge

Whether the judgment is speaking : Yes Whether the judgment is reportable : Yes