-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Kishore Dadich Vs. Union of India S.B.CRIMINAL APPEAL NO.08/1999 against the judgment dt.22.12.1998 passed by Special Judge,Addl.Special Court,CBI Cases,Jodhpur in Special Cr.Case No.12/98. Date of Judgment: July 30, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.P.N.Mohanani ) Mr.P.R.Choudhary) for appellant. Mr.Panney Singh for Union of India. BY THE COURT : 1. This is an appeal against the judgment of the learned Special Judge, Addl.Special Court, CBI Cases, Jodhpur dt.22.12.1998, whereby he convicted the accused appellant Kishore Dadich u/s.7 of the Prevention of Corruption Act, 1988, hereinafter referred-to as “the Act” and sentenced him to six months' S.I. and to pay a fine of Rs.5,000/- and in default, to -2- further undergo one month's S.I. However, he was acquitted u/s.13(1)(d) r/w s.13(2) of the Act. 2. Facts leading to this appeal are that on 27.3.1995, Khangar Mal Suthar lodged a report before the Superintendent of Police, CBI, Jodhpur that an amount of Rs.300/- was being demanded by the accused appellant Kishore Dadich, Junior Telecom Officer, Jalore, for removing the defect of his telephone. Upon this complaint, a trap was arranged by Shri M.D.Gaur, Dy.S.P. on 28.3.95. Three currency notes of Rs.100/- each were duly smeared with phenolphthalein powder and were given to the complainant. After taking motbir R.R.Agrawal, necessary instructions were given to the complainant and the raiding party. On getting the signal, the complainant and witness R.R.Agrawal entered into the house, where the wife of accused was standing in the drawing room but accused Kishore Dadich got inside the latrine after receipt of Rs.300/-. On knocking the door of the latrine, accused came out and was challenged by CBI team. On being asked, he denied to have accepted any bribe from the complainant. Thereafter, a clean glass of water was arranged and a solution of sodium carbonate was prepared and handwash of right hand fingers of accused Dadich was obtained. On dipping the fingers in the solution of sodium carbonate, it converted into pink colour. Similarly, the handwash of left hand fingers of -3- accused was also obtained and collected in two bottles. Both the bottles were sealed. However, the amount was not recovered on search. Thereupon, after taking decision to have a search of the gutter, the municipal staff was called, from where five torn pieces of currency notes of Rs.100/- were recovered and the number of those currency notes were tallying with those mentioned in the memorandum. Sixth piece of currency note was not found. Upon this, the investigation was done and challan was filed against the accused u/s.7 and 13 of the Act. The accused was charged accordingly, to which he pleaded not guilty. The prosecution examined 15 witnesses. The statement of the accused u/s.313 CrPC was recorded. In defence, the statement of R.R.Agrawal and statement of complainant recorded u/s.161 CrPC were produced as Ex.D.1 and Ex.D.2. After hearing the arguments, the learned trial Judge convicted the accused as above. 3. While assailing the judgment of the trial Court, learned counsel for the appellant has argued that when the learned trial Judge disbelieved the prosecution case with regard to demand of dowry, then conviction of accused appellant on the basis of presumption is against the law. He has further submitted that recovery has been made of five torn pieces of currency notes but they have been recovered from the common gutter of 4-5 -4- houses. Left hand of the accused appellant was also not found smeared with any colour in the watter bottle. He has further submitted that the F.I.R. is post dated and there was no valid sanction for prosecution of the accused u/s.7 of the Act but it was only for Sec.13(1)(d) read with 13(2) of the Act in which he has been acquitted. 4. Per contra, learned counsel for the Union of India has vehemently argued the case and submitted that though the trial Judge has disbelieved the theory of demand but still being ample evidence on record to suggest that the demand was made and consequently, during trap, five torn pieces of currency notes were recovered of the same number, mentioned in the memorandum, from the gutter on flushing the water from latrine of the accused appellant outside the house of the accused. It is also submitted that merely because Section 7 of the Act has not been mentioned while obtaining prosecution sanction, this cannot be fatal, especially when in the sanction letter, it is mentioned that the offence u/s.7 of the Act is also made out. In support of their contention, both the learned counsel have placed reliance on certain authorities, which will be discussed at the later stage. 5. Having perused the judgment of the learned trial Judge, it -5- is clear that accused was charged both u/ss.7 and 13 of the Act but acquitted the accused appellant u/s.13(1)(d) r/w 13(2) of the Act & convicted him u/s.7 of the Act on the basis of presumption that currency notes of Rs.300/- were recovered in the torn condition from the possession of the accused for which the accused has not given any explanation. However, the learned trial Judge held that there is no evidence to suggest that accused demanded Rs.300/-, still he came to the conclusion, in absence of explanation that the presumption u/s.20(1) of the Act can be drawn to the fact that accused received Rs.300/- in consideration of the work done and the sanction Ex.P.14 was also valid. 6. As regards the presumption, Section 20(1) of the Act, which is relevant for the purpose of deciding the present appeal, reads as under: “20. Presumption where public servant accepts gratification other than legal remuneration.-(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as -6- the case may be, without consideration or for a consideration which he knows to be inadequate.” 7. A bare perusal of this sub-section shows that presumption can be drawn only if the offence is punishable u/s.7 or section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 of the Act and it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person. Section 7 for which the accused has been convicted, provides that there must be acceptance or obtaining or agreeing to accept or attempting to obtain any gratification as a motive or reward for doing an official act. Here in the present case, the learned Judge himself has observed in para 44 of the judgment that it is not proved that on 26.3.95, accused demanded Rs.300/- on the ground that the new telephone was shifted at the house of the accused on 24.3.95 and it was repaired again on 25.3.95 as revealed from the evidence of Mool Dan (PW 4), Swaroop Singh, Lineman (PW 3) and Badrilal SDO, Telegraph (PW 5). The State has also not filed any appeal against the finding of acquittal u/s.13 of the Act. Thus, when the demand has not been proved, then merely on the basis of recovery, that too, from the common gutter of the 4-5 houses on flushing the water from the latrine of -7- the accused appellant and also not having found colour on the left hand of the accused, cannot be said to be ground for presumption that money was accepted as a motive or reward, especially when the work was completed and accused denied at the spot that he did not receive any money. This fact is further established from the F.I.R., Ex.P.16 in which date “18th” has been overwritten by date “27th”. In this regard, the decision of the Hon'ble Supreme Court in V.Venkata Subbarao v. State reported in 2007 CRI.L.J.754 cited by the learned counsel is relevant and it fortifies the argument of the learned counsel for the appellant. The relevant part of para 24 reads as under: “.....the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved.” 8. In view of the above discussion, it is clear that in absence of a demand, the conviction of the accused appellant u/s.7 of the Act on the basis of presumption u/s.20 of the Act is totally illegal. 9. The law cited by the learned counsel for the respondent – Union of India is not helpful to the facts of the present case -8- because in C.K.Damodaran Nair vs. Govt. of India reported in 1997 Cr.L.R.(SC) 335, it was held that prior demand is not necessary. In the cited case, the appellant after counting the notes put them in the right pocket of his trousers and it was presumed that he accepted the money in consideration of the demand. When acceptance and obtainment is proved, the presumption u/s.4(1) of the Act of 1947 is made out. 10. In State of U.P. vs. Zakaullah reported in 1998 CRI.L.J.863, the delinquent official was caught red handed in trap laid by trap officer. Here in the present case, there is neither evidence of dealing with the accused being caught red handed nor there is a demand. In other cases also, cited by the learned counsel for the Union of India, the bribe was accepted. Here in the present case, as discussed above, the conviction of the accused appellant on the basis of five torn pieces of currency notes from the gutter, which was common, cannot be treated as a legal recovery in pursuance to the demand, especially when the telephone was installed four days prior to the trap. 11. Under these circumstances, the conviction recorded by the learned trial Judge on the basis of presumption u/s.20 of the Act without there being finding of demand, cannot be confirmed in the eye of law. -9- 12. As a result, this appeal is allowed and the conviction and sentence of the appellant Kishore Dadich u/s.7 of the Act recorded by Special Judge, Addl.Special Court, CBI Cases, Jodhpur vide his judgment dt.22.12.1998 is set aside and he is acquitted for the charges levelled against him. As the appellant is on bail, his bail bonds stand cancelled. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS