Dipankar Nath vs The State of Assam

This is an appeal, under Section 374(2) of the Cr.P.C., challenging the judgment and order, dated 26.12.2011, rendered by the learned Special

Judge, Assam, Guwahati, in Special Case No. 8/2008, whereby, the accused/appellant was convicted under Section 7 of the Prevention of

Corruption Act, 1988 and was sentenced to undergo rigorous imprisonment for 3 years and 6 months and also to pay a fine of Rs.10,000/- and in

default of fine, R.I. for 1 year.

The case of the prosecution is that a complaint was filed by one Rajat Raj with the Deputy Commissioner, Tezpur, Sonitpur, on 04-07-2005,

alleging that the accused-appellant, who is a Junior Telecom Officer, Tezpur BSNL Sub-Division, demanded an amount of Rs.400/- from him for

reconnection of his telephone line. The Deputy Commissioner, then, signed on the 4 (four) one hundred rupee currency notes, totaling Rs. 400/-,

delivered to the complainant, Rajat Raj. At the instance of the Deputy Commissioner, a trap was laid by the Executive Magistrate, to catch the

aforesaid Junior Telecom Officer, red handed. Accordingly, on 06-07-2005, at about 11.00 a.m., the aforesaid Rajat Raj delivered the said

amount of Rs. 400/- to the accused-appellant at his BSNL Office and, then, he was immediately searched by the Additional Superintendent of

Police, Sri Ranjan Bhuyan and the Sub-Inspector, Sri AK Dasgupta and recovered the aforesaid currency notes from his pocket. Thereafter, the

FIR was lodged by one Gauri Sankar Sarma, Executive Magistrate.

On receipt of the F.I.R., the Officer-in-Charge of Tezpur Police Station registered a case, being Tezpur Police Station Case No.536/2005,

under Section 7 of the Prevention of Corruption Act, 1988 (in short, ''PC Act''). The case was investigated into and on completion of investigation;

chargesheet was laid against the accused-appellant, after obtaining prosecution sanction from the General Manager, BSNL, Assam Circle, under

Section 7 of the PC Act.

After exhausting all the required formalities, the learned trial Court framed formal charge against the accused-appellant under Section 7 of the

PC Act, to which he pleaded innocence; therefore, the trial commenced.

During the trial, the prosecution examined 10 witnesses and the learned trial Court also examined 1 witness as the Court Witness. The defence

examined none.

After closure of the prosecution evidence, the learned trial Court recorded the statement of the accused-appellant, under Section 313 of the

Cr.P.C. and in such examination; he has denied the accusation levelled against him by the prosecution.

I have heard Mr. P Kataki, learned counsel appearing on behalf of the appellant and Mr. BJ Dutta, learned Additional Public Prosecutor,

Assam.

I have also meticulously examined the materials on record as available on the record of learned trial Court.

The charge against the accused-appellant is under Section 7 of the PC Act, therefore, this Court needs to see the evidence brought on record to

substantiate the commission of an offence under Section 7 of the PC Act by the accused-appellant. The allegation as is found from the statement in

the FIR itself, marked as Ext. 7, is that the accused-appellant demanded an amount of Rs.400/- from Sri Rajat Raj to favour him with restoration

of his telephone line, which was disconnected.

The evidence of PW10, Sri Gauri Sankar Sarmah, who is an Executive Magistrate as well as the informant of the case, is that on receipt of

direction from the Deputy Commissioner, Tezpur, he laid a trap and recovered 4 currency notes of one hundred rupee denomination from the

accusedappellant bearing signature of the Deputy Commissioner (PW3).

The evidence of PW7 and PW3 show that the signatures on the currency notes of the Deputy Commissioner (PW3), have been exhibited and

proved by the evidence of PW3 and PW10.

The fact remains that four currency notes of one hundred rupees bearing signatures of the Deputy Commissioner were recovered from the

possession of the accused-appellant is a fact established by the evidence on record.

Now, the question to be decided is as to whether the amount recovered from the possession of the accused-appellant was received by him as

gratification, as defined in Section 7 of the PC Act. To substantiate this fact that the aforesaid amount was received by the accused-appellant, as

gratification, for favouring the accused-appellant with regard to reconnection of his telephone line is required to be established by the prosecution.

Now, we are to see whether the evidence led by the prosecution has been able to substantiate the accusation about receipt of gratification by the

accusedappellant.

The learned counsel for the accused-appellant has submitted that in an offence under Section 7 of the PC Act, the prosecution must prove the

demand by the accused-appellant as well as acceptance of the money given as gratification by him to the accused-appellant.

In the instant case, although the FIR was lodged by the PW10, Sri Gauri Sankar Sarmah, Executive Magistrate, yet the contents of the FIR

make it appear that the FIR is based on written complaint, lodged by one Rajat Raj claiming therein that the accused-appellant demanded Rs.

400/- from him for restoring his telephone line. Therefore, the complainant, for the purpose of decision of this case, in effect, is Rajat Raj and what

the statement of the FIR reveals is that it relates to the follow up action after receipt of complaint by him by the Deputy Commissioner, PW3.

Therefore, this Court is to look forward to the evidence of aforesaid Rajat Raj and whether he has implicated the accused-appellant with the

commission of the offence alleged against him, but, after meticulous examination of the learned trial Court''s record, this Court is disheartened to

see that the said Rajat Raj has not been examined by the prosecution, although Rajat Raj is the person from whom gratification was demanded and

accepted by the accused-appellant.

None of the other witnesses, including the PW3 and PW10, made any statement in the evidence that they had personal knowledge about the

demand of gratification; rather, the follow up action they had taken, was based on aforesaid complaint filed by Rajat Raj telling that the

accusedappellant demanded Rs. 400/- from him as aforesaid. In the absence of the evidence of aforesaid Rajat Raj in respect of whom the offence

was alleged to have been committed, the prosecution could not prove the demand as well as the acceptance of the gratification alleged.

The learned counsel for the appellant has referred to the decision of the Hon''ble Supreme Court in the case of V.Sejappa -vs- State by police

Inspector Lokayukta, Chitradurga, reported in (2016) 12 SCC 150, particularly, paragraph-10 and 18 thereof. Both the paragraph of the

aforesaid decision are quoted below for proper understanding of the matter at hand.

Para 10 In order to constitute an offence under Section 7 of the Prevention of Corruption Act, ''proof of demand'' is a sine quo non. This has

been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55, wherein

this Court held as under:-

Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute

the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt

that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of

this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P.(2010) 15 SCC 1 and C.M. Girish Babu

v. CBI (2009) 3 SCC 779.

Para 18 It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon

the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the

prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of

Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of

money was not enough to draw the presumption under Section 20 of the Act.

The Hon''ble Supreme Court has categorically laid down that it is a settled position of law that demand of illegal gratification is sine qua non to

constitute the offence under Section 7 of the PC Act and mere recovery of currency notes cannot constitute offence under Section 7 of the PC Act

unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money as gratification. The Hon''ble Supreme Court

further held in the said decision that it is the burden of the prosecution to prove that the accused accepted or obtained the amount other than legal

remuneration.

In view of the above position, settled by the Hon''ble Supreme Court, it is the burden upon the prosecution to establish that the gratification

was demanded and accepted by the accusedappellant, which burden the prosecution has not been able to discharge in the instant case as the

person from whom the gratification was demanded is not examined by the prosecution.

That apart, as stated above, none of the above witnesses are heard saying that they have independent knowledge minus the complaint of the

aforesaid Rajat Raj that any gratification was demanded from Rajat Raj by the accused-appellant. Therefore, it appears to be a case of absence of

evidence against the accused-appellant. Accordingly, the decision rendered by the learned trial Court holding the accused-appellant guilty for

commission of the offence under Section 7 of the PC Act, appears to be not based on record necessitating interference by this Court.

Accordingly, the appeal is allowed and the judgment and order, dated 26.12.2011, rendered by the learned Special Judge, Assam, Guwahati,

in Special Case No. 8/2008, is set aside.

Send down the LCR along with a copy of this judgment and order.