RAKESH KAPOORversusSTATE OF HIMACHAL PRADESH

                        [2012] 13 S.C.R. 148


A                        RAKESH KAPOOR
                                   v.
                 STATE OF HIMACHAL PRADESH
                (Criminal Appeal No. 1839 of 2012)
                        NOVEMBER 22, 2012
B
           [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

         Prevention of Corruption Act, 1988 - ss. 7 and 13(2) -
    Prosecution under - Demand and acceptance of illegal
C   gratification - Conviction by trial court - High Court confirmed
    conviction uls. 13(2) while setting aside conviction u/s. 7 - On
    appeal, held: Conviction uls. 13(2) cannot be sustained in
    absence of the substantive charge uls. 13(1)(a) and also in
    view of acquittal u/s. i' - Conviction is also not sustainable in
o   view of lacuna in the prosecution case as regards demand of
           .
    acqwtted.
                                                         .
    the bribe - Accused is entitled to benefit of doubt and hence


       The appellant-accused was prosecuted u/ss. 7 and
  13(2) of Prevention of Corruption Act, 1988. The
E prosecution case was that the accused had demanded
  money from PW1-complainant for granting licence to run
  his hotel by a telephone call. PW-1 made a complaint to
  the police. The police laid a trap. PW-3 was the shadow
  witness. The accused was charged uls. 7 and 13(2) of the
F Act. The treated currency notes were recovered from the
  accused. Trial Court convicted him u/ss. 7 and 13(2) of
  the Act. High Court set aside the conviction u/s. 7 and
  confirmed the conviction u/s. 13(2). Hence the present
  appeal.
G
        Allowing the appeal, the Court
        HELD: 1. The criminal misconduct which is defined
    in Section 13(1)(a) of Prevention of Corruption Act, 1988
H                                 148
     RAKESH KAPOOR v. STATE OF HIMACHAL                149
                 PRADESH
has not been included in the charge. In such a                A
circumstance, the accused lost an important opportunity
to defend himself, particularly, when he was acquitted u/
s. 7 of the Act. In the light of the undisputed factual
position that conviction of the appellant u/s. 7 has been
set aside by the High Court and in the absence of any         B
appeal by the State against such acquittal and
substantive charge u/s.13(1 )(a), the conviction u/s.13(2)
cannot be sustained. [Para 9) [157-G-H; 158-A-B]

     Joseph Kurian Philip Jose vs. State of Kera/a (1994) 6   C
SCC 535: 1994 (4) Suppl. SCR 122; Wakil Yadav and Anr.
vs. State of Bihar (2000) 10 SCC 500 - relied on.

    2.1 Except the oral testimony of PWs 1 and 3, there
is no other proof in respect of the demand of bribe
money and the 1.0. could not collect the telephone call       D
details from the department concerned. Accordingly,
there is no material/evidence for the demand of bribe.
Even the official witness, who helped in the search of the
accused, was examined as PW-14 but did not support the
prosecution case and turned hostile. In the absence of        E
the demand and acceptance, the accused is entitled to
the benefit of doubt. [Para 11) [159-E-H 160-A]

    Banarsi Dass vs. State of Haryana (2010) 4 SCC 450:
2010 (4) SCR 383 - relied on.
                                                              F
   C.M. Girish Babu vs. CBI (2009) 3 SCC 779: 2009 (2)
SCR 1021; Suraj Mal vs. State (Delhi Admn.) (1979) 4 SCC
725 - referred to.
     2.2 Another important aspect which is in favour of the   G
appellant accused is that the order, namely, granting
licence in favour of PW-1 - the complainant was made
ready before the alleged occurrence. When the order
itself was ready and available that too in the hands of the
complainant, the demand of the accused as claimed by          H
    150      SUPREME COURT REPORTS              [2012) 13 S.C.R.


A the prosecution is highly improbable. This aspect has
  also not been properly explained. [Para 12] [160-A-B, C]

      2.3 Thus in view of the lacunae in the prosecution
  case, by giving the benefit of doubt to the accused, the
B judgment of the High Court and the trial Court is set aside
  and the accused is acquitted of the remaining offence
  under Section 13(2) of the Act. [Para 13] [160-D]

                         Case Law Reference:

c     1994 (4) Suppl. SCR 122 relied on                Para 7
      (2000) 1o sec 500           relied on            Para 8
      2010 (4) SCR 383            relied on            Para 10
      200~ (2) SCR 1021           referred to          Para 10
D
      (1979) 4 sec 125            referred to          Para 10
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1839 of 2012.

E        From the Judgment & Order dated 08.09.2011 of the High
    Court of Himachal Pradesh at Shimla in Cr. Appeal No. 713
    of 2008.

     Parag P. Tripathi, Kunal Bahri, Mukesh Anand, Suresh
F Chandra Tripathy for the Appellant.

          Kiran Bala Sahay, Mohit Kumar Shah for the Respondent.

          The Judgment of the Court was delivered by

          P. SATHASIVAM, J. 1. Leave granted.
G
        2. This appeal is directed against the final judgment and
    order dated 08.09.2011 passed by the High Court of Himachal
    P~adesh at Shimla in Criminal Appeal No. 713 of 2008
    whereby the High Court while partly allowing the appeal filed
H
     RAKESH KAPOOR v. STATE OF HIMACHAL                         151
          PRADESH [P. SATHASIVAM, J.]

by the appellant herein set aside the conviction under Section         A
7 of the Prevention of Corruption Act, 1988 (for short 'the P.C.
Act') and upheld the conviction and sentence awarded by the
trial Court under Section 13(2) of the P.C. Act.

     3. Brief facts:                                                   B
      (a) In January, 2003, the appellant had been posted as
Divisional Tourism Development Officer, Dharamshala, H.P.
His duty includes issuing permits for running of buildings as
guest houses/hotels, by registering them as such and fixing the
tariff for different types of rooms/accommodation in the said          C
buildings.

     (b) One Nirwan Singh is having a Tea Orchard and a house
in Cheelgari in Dharamshala. He executed a general power of
attorney in favour of the complainant - Sukhjit Singh Sidhu for        D
managing his aforesaid properties. He renovated the said
house and converted and converted it into a hotel and sought
permission for registration and for fixing of tariff for the same
from the appellant herein.

      (c) On 28.04.2003, the appellant officially inspected the site   E
of the hotel. After inspection, the appellant found everything in
order and asked the complainant to go ahead with the running
of the hotel. The complainant also requested him to give official
permission to run the same. On 02.05.2003, the appellant
recorded a note for registration of the same fixing tariff for         F
different rooms. However, formal letter of registration and order
of fixation of tariff had not been issued.

     (d) It is the case of the prosecution that on 04.05.2003, the
complainant received a telephonic call from the appellant at           G
about 4.00 p.m. informing him that his case for registration of
hotel and fixation of tariff had been cleared and that he could
collect the registration certificate on the next day by paying him
Rs. 10,000/-.

    (e) The complainant being an Ex-serviceman not inclined            H
    152     SUPREME COURT REPORTS                [2012] 13 S.C.R.


A to give bribe and therefore, he shared this conversation with
  his friend Ashwani Bhatia (PW-3) and on 05.05.2003, both of
  them went to the Police Station, A.C. Zone, Dharamshala and
  lodged a complaint. They carried with them ten currency notes
  of the denomination of Rs.1,000/- each and produced the same
B before the police. The currency notes of Rs. 1,000/- each
  amounting to Rs.10,000/- were treated by the Vigilance Police
  with phenolphthalein powder and their numbers were noted
  down and handed over to the complainant asking him to give
  the same to the accused on demand with a direction to not to
C tamper with the same in any manner. The police asked
  Ashwani Bhatia (PW-3) to act as a shadow witness and
  requested him to go to the office of the appellant with the
  complainant and give signal to them as and when the bribe
  money stood paid.

D      (f) Thereafter, the members of the raiding party (Vigilance
  Police) took shelter near the office of the accused. At about
  6.55 p.m., after receiving signal from the shadow witness, the
  raiding party caught hold of the appellant. The appellant was
  asked to produce the currency notes taken by him as bribe and
E the same had been taken out from the right pocket of his pant.
  The number of the currency notes were got tallied as the same
  which were shown to the police earlier. The appellant was
  arrested and grounds of arrest intimated to him. The case was
  committed to the Court of Special Judge, Kangra at
F Oharamshala.

       (g) Vide judgment dated 16.10.2008, the Special Judge,
  C)n perusal of the record, held the appellant guilty and convicted
  him for the offences punishable under Sections 7 and 13(2) of
  the P.C. Act. Vide order dated 03.11.2008, the Special Judge
G sentenced the appellant to undergo Rigorous Imprisonment (RI)
  for two years and to pay a fine of Rs.10,000/-, in default, to
  fwrther undergo simple imprisonment for 6 months.

      (h) Being aggrieved, the appellant preferred an appeal
H b~ing Criminal Appeal No. 713 of 2008 before the High Court
      RAKESH KAPOOR v. STATE OF HIMACHAL                        153
           PRADESH [P. SATHASIVAM, J.]
of Himachal Pradesh. The High Court, by impugned judgment              A
dated 08.09.2011, partly allowed the appeal and set aside the
conviction under Section 7 of the P.C. Act and confirmed the
same under Section 13(2) of the said Act.

    (i) Aggrieved by the said order of the High Court, the             B
appellant preferred this appeal by way of special leave petition.

     4. Heard Mr. Parag P. Tripathi, learned senior counsel for
the appellant and Ms. Kiran Bala Sahay, learned counsel for
the respondent-State.
                                                                       c
      5. Mr. Tripathi, learned senior counsel for the appellant,
after taking us through all the materials, the decision of the trial
Judge and the reasoning of the High Court submitted that
conviction of the appellant under Section 13(2) of the P.C. Act
is unsustainable in law since his conviction under Section 7 has       D
been set aside by the High Court. He further submitted that
inasmuch as Section 13(2) of the P.C. Act merely provides for
punishment for criminal misconduct which is defined in Section
13(1), the substantive provision applicable in the case is
Section 13(1)(a) of the P.C. Act. He further pointed out that          E
Section 13(1)(a) was held inapplicable since the offence under
Section 7 was not proved, hence, there cannot be any
conviction under Section 13(2) without there being a conviction
under Section 7 of the Act. He further submitted that in the
absence of any evidence for the demand of bribe, the conviction
                                                                       F
is liable to be set aside. He also pointed out that though
according to the prosecution, a demand was made to Shri S.S.
Sidhu (PW-1), the complainant, over mobile phone, no call
record was produced and reliance based on the contradrctory
statement of Shri Dharam Chand (PW-18), 1.0., cannot be
accepted. He further submitted that since the order, viz.,             G
registration certificate was made ready before the alleged
demand of bribe on 02.05.2003, the entire case of the
prosecution for demand and acceptance does not hold good.
On the other hand, Ms. Kiran Bala Sahay, learned counsel for
                                                                       H
    154       SUPREME COURT REPORTS                [2012] 13 S.C.R.


A   the State supported the case of the prosecution and, according
    to her, the High Court was fully justified in convicting the
    appellant.

      6. We have carefully considered the rival contentions and
B perused all the relevant materials.

         7. At the foremost, in order to understand the stand of both
    the parties, it is useful to refer the charge sheet which reads
    as under:

C         "IN THE COURT OF SH. C.B. BAROWALIA, SPECIAL
          JUDGE, KANGRA AT DHARAMSHALA

          STATE VS. RAKESH KAPOOR

          CHARGE SHEET CC2/05
D
               I, C.B. Barowalia, Special Judge, Kangra at
          Dharamshala do hereby charge you accused Rakesh
          Kapoor son of Shri Joginder Paul (HAS Officer), resident
          of H.No. 702, Old Chari Road, Dharamshala, District
          Kangra as under:-

           That on 05.05.2003, at about 6.55 p.m. while you were
          posted as Divisional Tourism Development Officer at
          Dharamshala and being a Public Servant obtained
          Rs.10,000/- for the registration of Hotel of Shri N.S. Gill
F         which was your official duty as a motive for doing the said
          official act and thereby committed an offence punishable
          under Section 7 of the Prevention of Corruption Act, 1988
          and within my cognizance.

G          That on the above said date, time and place you being
          Divisional Tourism Development Officer at Dharamshala,
          District Kangra accepted a gratification of Rs.10,000/-
          other than legal remuneration from the complainant for
          registration of his Hotel and thus you committed the offence
H         of criminal misconduct punishable under Section 13(2) of
     RAKESH KAPOOR v. STATE OF HIMACHAL                     155
          PRADESH [P. SATHASIVAM, J.]
    the Prevention of Corruption Act, 1988 and within my           A
    cognizance.

    And I hereby direct that you be tried by this Court for the
    aforesaid charges.

                                                         Sd/-      B
                                               Special Judge
                                      Kangra at Dharamshala"

A reading of the charge sheet shows that the claim made by
the prosecution in paras 2 and 3 is one and the same. It is not    c
in dispute that the High Court on appreciation of the evidence
led in by the prosecution and the stand taken by the defence
exonerated the appellant in respect of the offence punishable
under Section 7 of the P.C Act. Now, the moot question for
consideration is whether in the absence of Section 7, conviction
                                                                   0
under Section 13(2) is permissible, particularly, when there is
no reference to Section 13(1)(a) of the P.C. Act. It is not in
dispute that Section 13(2) only speaks about punishment for
committing criminal misconduct. Section 13(2) reads thus:

    "13. Criminal misconduct by a public servant.- (1) xxx         E
    xxx
    (2) Any public servant who commits criminal misconduct
    shall be punishable with imprisonment for a term which
    shall be not less than one year but which may extend to        F
    seven years and shall also be liable to fine."

We have already extracted the charge sheet which contains the
offence under Sections 7 and 13(2) of the P.C. Act. The
relevant substantive provision is Section 13(1)(a) which reads
thus:                                                              G

    "13. Criminal misconduct by a public servant.- (1) A
    public servant is said to commit the offence of criminal
    misconduct,-
                                                                   H
    156       SUPREME COURT REPORTS                  [2012] 13 S.C.R.


A         (a) if he habitually accepts or obtains or agrees to accept
          or attempts to obtain from any person for himself or for any
          other person any gratification other than legal remuneration
          as a motive or reward such as is mentioned in section 7;
          or
B         xxxxxX'
   In the light of the language used in Section 13(1)(a) and in view
   of the conclusion by the High Court that the offence under
   Section 7 has not made out, the prosecution has not explained
<C how Section 13(1)(a) is applicable. In this regard, it is useful
   to refer the decision of this Court in Joseph Kurian Philip Jose
   vs. State of Kerala, (1994) 6 SCC 535. The case relates to
   popularly known as 'Punalur Liquor Tragedy' in Kerala in which
   certain persons died and others received injuries due to
o  consumption of poisonous adulterated arrack, ethyl alcohol
   adulterated with methyl alcohol. After investigation, a case under
   Section 272 IPC and Section 57(a) of the Kerala Abkari Act
   was registered. After trial, A-1 was convicted and sentenced
   under Sections 272 and 328 of the IPC along with the relevant
E provisions of the Kerala Abkari Act and the High Court
   confirmed the same, who filed an appeal before this Court. The
   High Court, however, set aside the similar conviction and
   sentence of A-4 recorded by the Court of Sessions and instead
   convicted him under Section 109 IPC for having abetted
ft commission of offence punishable under Sections 272 and 328
   IPC whereunder, without specificity, he was awarded rigorous
   imprisonment for two years. The said order was also under
   challenge before this Court. In para 13, this Court has held as
   under:

G         "............ Going by the High Court findings, Section 109
          IPC could in no case be attracted and more so without
          charge to that effect put to A-4 to plead at the trial. Section
          109 IPC is by itself an offence though punishable in the
          context of other offences. A-4 suffered a trial for
H         substantive offences under the IPC and the Abkari Act.
     RAKESH KAPOOR v. STATE OF HIMACHAL                     157
          PRADESH [P. SATHASIVAM, J.]
    When his direct involvement in these crimes could not be       A
    established, it is difficult to uphold the view of the High
    Court that he could lopsidedly be taken to have answered
    the charge of abetment and convicted on that basis. There
    would, as is plain, be serious miscarriage of justice to the
    accused in causing great prejudice to his defence. The         B
    roles of the perpetrator and the abettor of the crime are
    distinct, standing apart from each other. The High Court
    was thus in error in employing Section 109 IPC to hold A-
    4 guilty. We thus set aside the conviction of A-4 and order
    his acquittal on all charges".                                 c
     8. In Wakil Yadav and Another vs. State of Bihar, (2000)
10 SCC 500, this Court hP.ld that when the appellant was
charged and convicted along with others for offences under
Section 302 read with Section 149 IPC, the High Court cannot
convict him for the offence under Section 302 read with Section    D
109 in appeal. In that case, it is undisputed that no charge was
framed against the appellant with the aid of Section 109. As in
Joseph Kurian (supra), here again, this Court held that Section
109 IPC is a distinct offence. In this way, this Court held that
"the appellant having faced trial for being a member of an         E
unlawful assembly which achieved the common object of
killing the deceased, could in no event be substitutedly
convicted for offence under Section 302 /PC with the aid of
Section 109 /PC. There was obviously thus not only a legal
flaw but also a great prejudice to the appellant in projecting     F
his defence. He, on such error committed by the High Court,
has rightly eamed his acquittal .... • By saying so, this Court
allowed the appeal of the accused and set aside the conviction
and sentence imposed on him.
                                                                   G
     9. The criminal misconduct which is defined in Section
13(1 )(a) has not been included in the charge. In such a
circumstance, the accused lost an important opportunity to
defend himself, particularly, when he was acquitted under
Section 7 of the Act. By applying the ratio rendered in the        H
     158      SUPREME COURT REPORTS                 [2012) 13 S.C.R.


A    above decisions and in the light of the undisputed factual
     position that conviction of the appellant under Section 7 has
     been set aside by the High Court and in the absence of any
     appeal by the State against such acquittal and substantive
     charge under Section 13(1 )(a), the conviction under Section
B    13(2) cannot be sustained.

           10. Coming to the next argument that there was absolutely
     no demand for bribe and in the absence of such claim by the
     accused duly established by the prosecution, the conviction
     cannot be sustained. In support of the above claim, learned
C    counsel for the appellant relied on the decision of this Court in
     Banarsi Dass vs. State of Haryana, (2010) 4 SCC 450. It was
     an appeal under Article 136 of the Constitution of India filed
     against the judgment and order of conviction dated 20.11.2002
     passed by the learned single Judge of the High Court of Punjab
0    and Haryana at Chandigarh. In that case, it was contended
     before this Court that there is no evidence to prove demand
     and voluntary acceptance of the alleged bribe so as to attract
     the offence under Section 5(2) of the Prevention of Corruption
     Act, 1947. The other contentions were also raised regarding
I;   merits with which we are not concerned. The accused was
     charged for the offence punishable under Section 5(2) of the
     1947 Act as well as Section 161 (since repealed) of the IPC.
     In para 23, this Court held that "to constitute an offence under
     Section 161 IPC, it is necessary for the prosecution to prove
P    that there was demand of money and the same was voluntarily
     accepted by the accused". It was further held that "similarly in
     terms of Section 5(1 )(d) of the Act, the demand and
     acceptance of the money for doing a favour in discharge of his
     official duties is sine qua non to the conviction of the accused".
G    In para 25, this Court quoted the decision rendered in C.M.
     Girish Babu vs. CBI, (2009) 3 sec 779 and held that mere
     recovery of money from the accused by itself is not enough in
     the absence of substantive evidence of demand and
     acceptance. In the sama para, a reference was also made to
H    Suraj Mal vs. State (Delhi Admn.) (1979) 4 SCC 725 wherein
     RAKESH KAPOOR v. STATE OF HIMACHAL                        159
          PRADESH [P. SATHASIVAM, J.)
this Court took the view that mere recovery of tainted money          A
from the circumstances under which it is paid is not sufficient
to convict the accused when the substantive evidence in the
case is not reliable. This Court further held that mere recovery
by itself cannot prove the charge of the prosecution against the
accused in the absence of any evidence to prove payment of            8
bribe or to show that the accused voluntarily accepted the
money knowing it to be bribe. After underlying the above
principles, and noting that 2 prosecution witnesses turned
hostile, while giving the benefit of doubt on technical ground to
the accused, this Court, set aside the judgment of the High           C
Court and acquitted the accused of both the charges i.e. under
Section 161 IPC and under Section 5(2) of the 1947 Act.

     11. In the case on hand, though prosecution heavily relied
on the evidence of PW-1, the complainant that the demand was
made to him over mobile phone, admittedly the call details have       D
not been summoned. No doubt, the statement of PW-1,
according to the prosecution is corroborated by Ashwani
Bhatia (PW-3) who stated that he overheard PW-1 saying that
he had brought the money, when the latter went to the office of
the appellant in the evening of 05.05.2003. Interestingly, the 1.0.   E
who was examined as PW-18 has mentioned that PW-1
received the demand from the accused over landline and,
hence, he could not secure those call details. Whatever may
be the reason, the fact remains that except the oral testimony
of PWs 1 and 3, there is no other proof in respect of the             F
demand of bribe money and the 1.0. could not collect the call
details as stated by PW-1 from the department concerned.
Accordingly, learned senior counsel for the appellant is right in
contending that there is no material/evidence for the demand
of bribe. In the light of the categorical enunciation in Banarsi      G
Dass (supra), in the absence of the demand and acceptance,
the accused is entitled to the benefit of doubt. In addition to the
same, in the case on hand, even the official witness, Shri Madan
Singh-who helped in the search of the accused- Municipal
                                                                      H
    160      SUPREME COURT REPORTS              (2012] 13 S.C.R.


A Commissioner, was examined as PW-14 but did not support
  the prosecution case and turned hostile.

       12. Another important aspect which is in favour of the
  appellant accused is that the order, namely, granting licence
  in favour of PW-1 - the complainant was made ready before
8 the alleged occurrence i.e. on 02.05.2003. In fact, the original
  order was available on the table and the same was in the
  hands of PW-1. Admittedly, he did not hand over the original
  to the 1.0. and his only explanation was that he kept it under
  his custody to continue his business. As rightly pointed out,
C when the order itself was ready and available that too in the
  hands of the complainant, the demand of the accused as
  claimed by the prosecution is highly improbable. This aspect
  has also not been properly explained.

p       13. In the light of the above discussion and in view of the
  lacunae in the prosecution case, by giving the benefit of doubt
  to the accused, we hereby set aside the judgment of the High
  Court and the trial Court and acquit the accused of the
  remaining offence under Section 13(2) of the P.C. Act. Since
E the appellant was ordered to be released on bail on 13.02.2012
  by this Court, the bail bonds shall stand discharged. The appeal
  is allowed.

    K.K.T.                                       Appeal allowed.