[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT 1. Dr. Vinod Bhargava Vs. State of Rajasthan S.B. CRIMINAL APPEAL NO.331/2000 2. Ram Kumar Swami Vs. State of Rajasthan S.B. CRIMINAL APPEAL NO.362/2000 Under Section 374 Cr.P.C. against the judgment dated 17.6.2000 passed in Sessions Case No.18/94. DATE OF JUDGMENT ::::: 21st JULY, 2008 PRESENT HON'BLE MR. JUSTICE K.S. RATHORE Mr. S.K.Gupta ) Mr. D.K.Jain with ) Mr. Jhabar Swami) for the appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. **** Since both the appeals arising out of a common impugned judgment dated 17.6.2000 passed by the Special Judge (Prevention of Corruption) Act, Jaipur therefore, the same were heard together and are being decided by a common judgment. In both the appeals the same impugned judgment dated 17.6.2000 is under challenge whereby accused- appellants-Dr. Vinod Bhargava and Ram Kumar Swami have convicted under Section 13 (1) (d) (2) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for one year and a fine of Rs.5,000/- each, in default of payment of fine to further undergo simple [2] imprisonment for three months. The brief facts giving rise to the case are that the Rajasthan Scheduled Caste Development Cooperative Corporation Ltd. prepared a project to serve the twin objectives, one for developing social forestry and second for upliftment of scheduled caste families. The scheduled caste families having their own agricultural land were motivated to develop nurseries. The required polythene bags and seed were to be supplied by the forest department to the nursery growers free of cost. As per scheme 30 paisa per sampling was to be paid by the forest department as its cost and further incentive of Rs.1000/- per 10,000 saplings was to be given by R.S.C.D.C.C. through District Rural Development Agency (D.R.D.A.). The Anti-Corruption Bureau, Jaipur after investigation had filed challan on 22.7.94 through Special Public Prosecutor under Section 120-B read with Section 420 IPC and Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused- appellant Dr.Vinod Bhargava, and co-accused Kanhaiya Lal, and Mishri Lal. Vide impugned judgment dated 17.6.2000 the Special Judge (A.C.D.) Cases, Jaipur acquitted co-accused- Kanhaiya Lal and Mishri Lal from offence under Section 120-B read with Section 420 IPC and Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, [3] 1988 and convicted accused-appellants Dr.Vinod Bhargava and Ram Kumar Swami under Section 13(1)(d)(2) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as “P.C.Act, 1988”) and sentenced each of them to undergo rigorous imprisonment for one year with a fine of Rs.5,000/- each, in default of payment of fine, to further undergo three months' simple imprisonment. Aggrieved and dissatisfied with the impugned judgment dated 17.6.2000, accused-appellants-Dr. Vinod Bhargava and Ram Kumar Swami have filed S.B. Criminal Appeals Nos. 331/2000 & 362/2000 respectively. The challenge to the impugned judgment dated 17.6.2000 by the accused-appellants is on the ground that accused-appellants Ram Kumar Swami was Junior Accountant and Dr. Vinod Bhargava was Project Manager, DRDA during the year 1988-89 while working as public servants by abuse of their official position passed orders for payment of Rs.40,000/- (Rupees Fourty Thousand), each to Mishri Lal and Kanhaiyalal, the nursery growers in violation of rules and regulations and thus committed an offence under Section 13 (2) read with 13 (1) (d) of P.C. Act, 1988. Therefore, both the accused-appellants have committed an offence under Section 13 (2) read with 13 (1) (d) of P.C. Act, 1988. It is contended on behalf of the accused- appellants that the learned Special Judge A.C.D. Cases, [4] Jaipur has erred in law, on one hand, in convicting the appellants under Section 13 (2) P.C.Act simplicitor and while on the other hand acquitted the co-accused Kanhaiya Lal and Mishri Lal who are the beneficiaries from the charge under Section 120-B IPC. Further challenge to the impugned judgment is on the ground that the payment of Rs.30,000/- made to each nursery grower was irregular as it was to be disbursed by the forest department and not by the DRDA. The Special Judge has seriously ignored the clear orders of the project director dated 5.12.88 as contained in Note-112 Article-2 that the payment be released by the DRDA as the forest department was avoiding the payment which also finds support from the statement of PW-14 Mohan Das Acharya APO (Agriculture). The learned Special Judge failed to take note of the fact that the payment which has been alleged to be made to nursery growers co-accused Kanhaiya Lal and Mishri Lal for some consideration. Learned counsel for the accused-appellants contended that it was none of the function of the Junior Accountant either to inspect nurseries or to count saplings. In the instant case there is overwhelming evidence of Ram Kumar DW2, Mahaveer Prasad DW3, Madan Lal DW-4, Chhagan Lal DW5, Ramji Lal DW6 and PW11 Balswaroop Meena that the nurseries were grown and the plants were distributed to DW5 and DW6 were cited as Pws by the [5] prosecution in the charge sheet. Thus, the trial Court has not come to any positive finding anywhere that the appellant ever abused his position as a public servant and thereby obtained permission or for any other person any valuable thing or pecuniary advantage. Without having reached to that findings of abusing their position the learned trial Court has committed gross negligence while convicting the accused-appellants under Section 13 (1) (d) (2) of the P.C.Act, 1988. Learned counsel appearing on behalf of accused- appellant-Dr. Vinod Bhargava has given emphasis on the note sheet written by accused Ram Kumar and placed before the Project Director Shri B.K.Meena for approval which is referred as under: “ अवलोकनाथर् व यिद मान् य हो तो शुƮ -पऽ हस् ताक्षराथर् हेतु प् रस् तुत है ." The Prosecution Witness PW-6 Bhanwar Lal has admitted in his cross examination that the project manager and Project Director both are jointly liable for the offence and the Project Director-Shri B.K.Meena is prima facie responsible for the illegal payments, who has approved the payment but has not been made accused in this case. As in the case of Ram Kumar Swami it is apparent that at that time he was working as Junior Accountant and was not supposed to be taken any independent decision. His duty in the instant case was to calculate the amount [6] payable to each grower as per order and guidelines and this aspect of the matter has not been considered by the learned Special Judge while convicting accused-appellant- Ram Kumar Swami. Learned counsel for the appellants, in support of their submissions, has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of S.P.Bhatnagar and another vs. The State of Maharashtra, reported in 1979 Cr.L.J. (SC), 566 and Major S.K.Kale vs. State of Maharashtra, reported in 1977 Cr.L.J. (SC), 604. Both the judgments have been referred by the learned counsel on the fact that it is necessary for the Special Judge to hold that whether the appellants have abused their position in order to come within the mischief of Section 5 (1) (d) must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person. They have also placed reliance on the judgment rendered by the Hon'ble Supreme Court in the cases of Abdulla Mohammed Pagarkar etc. vs. State (Union Territory of Goa, Daman and Diu) reported in 1980 [7] Cr.L.J., 220 and C.Chenga Reddy & Ors. vs. State of Andhra Pradesh reported in 1997 Cr.L.R. (SC), 258. Learned counsel for the appellant has further placed reliance on the judgment rendered in the cases of Union of India and another vs. Major J.S.Khanna reported in 1972 Cr.L.J., 849 and Roshan Lal vs. State of Rajasthan reported in 1989 Cr.L.R.(Raj.) 457. After referring the aforesaid judgments, it has further been submitted by the learned counsel for the appellants that the acquittal from offence under Section 409 IPC and conviction under Section 5 (1) (c) of P.C. Act, 1988 which is based on similar ingredients, cannot be sustained. It has further been contended that the Court cannot convict any accused only on such probability or suspicion, howsoever, strong it may be 'Between may be true and must be true, there is a long distance to travel' as held by the Hon'ble Supreme Court in the case of M.Abbas vs. State of Kerala, reported in 2001 (3) Crimes, 110 (SC). Heard learned counsel for the accused- appellants, learned Public Prosecutor and have also carefully gone through the impugned judgment passed by the Special Judge dated 17.6.2000 as well as material available on record. The allegations against the accused-appellants are that they have passed the orders for payment of [8] Rs.40,000/- to Mishri Lal and Kanhaiyalal, the nursery growers and it was observed that such sanction of the such amount was in violation of the rules and regulations and thus, the accused-appellants have committed an offence under Section 13 (2) read with 13 (1) (d) of P.C. Act, 1988. As per the scheme the Rajasthan Scheduled Caste Development Cooperative Corporation Ltd. prepared a project to serve the twin objectives, one for developing social forestry and second for upliftment of scheduled caste families. The scheduled caste families having their own agricultural land were motivated to develop nurseries and for this purpose the required polythene bags and seed were to be supplied by the forest department to the nursery growers free of cost and further an incentive was granted to the extent of Rs.1,000/- per 10,000 saplings by R.S.C.D.C.C. through District Rural Development Agency (D.R.D.A.). To achieve the aforesaid objects and for upliftment of scheduled caste families, the nursery growers Shri Mishri Lal and Kanhaiya Lal, were motivated to grow nursery and for the purpose of growing the nursery the benefit under the scheme prepared by the Rajasthan Scheduled Caste Development Cooperative Corporation Ltd. was extended. As the Forest Department was not releasing the said amount therefore was paid by the District Rural Development Agency (D.R.D.A.). The order for payment was passed by the Project Director Shri B.K.Meena. Accused [9] Ram Kumar Swami, under the instructions of the Project Director Shri B.K.Meena, prepared a note sheet and the same was placed before the immediate senior accused Dr.Vinod Bhargav. Dr. Vinod Bhargava further prepared a note and refer the same for perusal to his immediate senior Shri B.K.Meena which is reproduced as under: “ अवलोकनाथर् व यिद मान् य हो तो शुƮ -पऽ हस् ताक्षराथर् हेतु ूस् तुत है ." Upon perusal of the relevant record and note sheet, it appears that the decision was taken at the level of the Project Director Shri B.K.Meena. The accused-Ram Kumar Swami being a Junior Accountant prepared a note sheet and placed the same before the immediate senior Dr.Vinod Bhargava and accused-Dr.Vinod Bhargava putting the aforesaid note placed before the Project Director-Shri B.K.Meena. It was for Shri B.K.Meena, the Project Director, to take a decision and the alleged payment can only be released to the nursery growers after his approval. The Prosecution Witness PW-6 Bhanwar Lal has admitted in his cross examination that the Project Manager and Project Director both are jointly liable for the offence and the Project Director-Shri B.K.Meena is prima facie responsible for the illegal payments, who has approved the payment but has not been made accused in this case. [10] Similarly the accused- Ram Kumar Swami was working as Junior Accountant and was not supposed to be taken any independent decision. His duty in the instant case was to obey the orders and instructions of his senior. Thus, these aspects of the matter have not been properly considered by the trial Court while convicting the accused-appellants Dr.Vinod Bhargava and Ram Kumar Swami under Section 13 (1) (d) (2) of the Prevention of Corruption Act, 1988 and sentencing them to undergo rigorous imprisonment for one year and a fine of Rs.5,000/- each, in default of payment of fine to further undergo simple imprisonment for three months. As held by the Hon'ble Supreme Court and the High Courts and as per the settled preposition of law, the learned trial Court has utterly failed to appreciate the evidence of the witnesses and the material available on record. Looking to the overall facts and circumstances of the case, this Court is of the view that the trial Court has not properly appreciated the evidence led by the witnesses and also not carefully gone through the documents available on record. Therefore, the impugned judgment dated 17..6.2000 passed by the Special Judge A.C.D. Cases, Jaipur deserves to be set aside. Consequently, both the criminal appeals are allowed and the impugned judgment dated 17.6.2000 passed [11] by the Special Judge A.C.D. Cases, Jaipur is hereby quashed and set aside. The accused-appellant-Dr.Vinod Bhargava ( in S.B.Criminal Appeal No. 331/2000) and accused-appellant- Ram Kumar Swami ( in S.B.Criminal Appeal No.362/2000) are acquitted from the offence under Section 13 (1) (d) (2) of the Prevention of Corruption Act, 1988. Both the accused- appellants are on bail. They need not surrender and their bail bonds stand discharged. (K.S. RATHORE),J. teekam/