Soundarajan v. State Rep. by the Insp. of Police

133 [2023] 4 S.C.R. 133 SOUNDARAJAN v. STATE REP. BY THE INSPECTOR OF POLICE VIGILANCE ANTICORRUPTION DINDIGUL (Criminal Appeal No. 1592 of 2022) APRIL 17, 2023 [ABHAY S. OKA AND RAJESH BINDAL, JJ.] Prevention of Corruption Act, 1988 : ss. 7, 13(1)(d), r/ w 13(2) – Illegal gratification – Appellant-Sub-Registrar d emanded gratification of Rs.500/- from the complainant-PW 2 , for handing over the registered sale deed – Complaint filed – Trap l aid and in presence of shadow witness PW-3, the appellant caught re d-handed while accepting the bribe – However, complainant did n ot support the prosecution and was declared hostile – Trial co urt convicted and sentenced the appellant for the offences punishab le u/s 7 and s. 13(2) r/w s. 13(1)(d) – Upheld by the High Court – O n appeal, held : To attract s. 7, the demand for gratification has to be proved by the prosecution beyond a reasonable doubt – It is not a simple demand for money, but it has to be a demand for gratificatio n – On facts, the complainant did not support the prosecut ion – In his examination-in-chief, he did not say anything about the demand made by the appellant – PW-3 did not say that the appellant made a specific demand of gratification in his presence to PW-2 – No circumstantial evidence of demand for gratification – Thus, the offences punishable u/s. 7 and s. 13(2) r/w s. 13(1)(d) not est ablished – Furthermore, there was omission or error to frame charge, which may lead to acquittal – Thus, the impugned judgment quashe d and set aside – Code of Criminal Procedure, 1973 – s.464. Code of Criminal Procedure, 1973: s. 464 – Effect of omissio n to frame or absence of, or error in, charge – Held: Under s. 464, omission to frame a charge or any error in charge is never fatal unless, in the opinion of the Court, a failure of just ice has in fact been occasioned thereby – Instant case is of omissio n to frame a proper charge, and whatever charge has been framed is, per se defective – However, by reason of the said omission , the accused not prejudiced insofar as his right to defend is con cerned. Neeraj Dutta v. State (Govt. of NCT of Delhi) 2022 SCC online SC 1724 - relied on. Mohan Singh v. State of Bihar (2011) 9 SCC 272; Union of India v. Ex-GNR Ajeet Singh (2013) 4 SCC 186 - referred to. Case Law Reference

(2011) 9 SCC 272 Referred to Para 8

(2013) 4 SCC 186 Referred to Para 8 CRIMINAL APPELLA TE JURISDICTION: Criminal Appeal No. 1592 of 2022. From the Judgment and Order dated 08.01.2019 of the High Court of Judicature at Madras at Madurai in CRLAMD No. 140 of 2012. S. Nagamuthu, Sr. Adv., B. Balaji, M. P. Parthiban, Du vvuri Subrahmanya Bhanu, Ms. Shalini Mishra, Raja Rajeshwaran S., Advs. for the Appellant. Dr. Joseph Aristotle S., Shobhit Dwivedi, Ms. Vaidehi Rasto gi, Advs. for the Respondent. The Judgment of the Court was delivered by

ABHAY S. OKA, J. FACTS

¶1The appellant was convicted for the offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, ‘the PC Act’). The appellant w as sentenced to undergo imprisonment for one year and to pay a fine of Rs. 2,000/-. High Court, by the impugned judgment, has confirmed the conviction and sentence of the appellant.

¶2The appellant was holding the post of Sub-Registr ar at Kannivadi, Dindigul District, Tamil Nadu. The compl ainant M. Sundaramoorthy (PW-2), had purchased land measuring 16.05 cents. Accordingly, on 12 th July 2004, sale deed was presented before the appellant who was the Sub-Registrar in the concerned office. The complainant and his vendors were present. According to the case made out by the complainant in his complaint, apart from getting the sale deed typed on a stamp paper of Rs.880/-, he paid a sum of Rs.190/- towards the registration charges of the sale deed. A receipt for the sa id amount was issued by the appellant. On 16 th July 2004, when the complainant visited the appellant’s office, he was informed to bring F MB Sketch from the concerned Government office. According to the complainant, on 31 st July 2004, the said sketch was produced by him. After the sketch was produced, the appellant informed him that he would have to make a site visit. Accordingly, the complainant arranged for transport for the appellant to enable him to make a site visit. After noticing trees on the land, the appellant instructed the complainant to get a TOPO S ketch from the concerned office to show that the land subject matter of sale was cultivable. Thereafter, the complainant obtained requisite documents and handed over the same to the appellant on 6 th August 2004 at 11.30 am. According to the complainant, at that time, the appellant demanded gratification of Rs.500/- for handing over the registered s ale deed. As the complainant was not willing to give gratification, on 11 th August 2004, he filed a complaint with the Inspector of Police of the Anti-Corruption Unit.

¶3Based on the complaint, a trap was laid on 12 th August 2004, which was unsuccessful. According to the prosecution case, the trap was again laid on 13 th August 2004. It was successful, and in the presence of the shadow witness Michael (PW-3), the appellant was ca ught red-handed while accepting the bribe.

¶4The prosecution examined 12 witnesses. PW-1 N.Dhanam Jeyan was examined to prove the sanction order. As stated earlier, PW-2 M.Sundaramoorthy is the complainant and PW-3 Michael is the shadow witness. No other witness is relevant for proving the allege d demand made by the appellant. The complainant (PW-2) did not support t he prosecution and was declared as hostile. The appellant exam ined two defence witnesses, S. Kathiresan and Kalaiselvi to bring on the r ecord audit report of the office in which the appellant was wor king and a circular issued by the Inspector General of Registration, which required the Sub-Registrar to visit a land subject matter of sale deed for ascertaining its valuation. SUBMISSIONS

¶5The learned senior counsel Mr S.Nagamuthu, appearing for the appellant, submitted that there was no charge framed as regards the demands made on 6th August 2004 and 13 th August 2004. Inviting our attention to the first charge framed by the Special Court, he ur ged that the charge is about the alleged demand made on 12 th July 2004 when the sale deed was registered. He submitted that even accor ding to the prosecution case, there was no demand made on 12 th July 2004 at the time of the registration of the sale deed. He submitted th at because of this material defect in the charge and omission to frame a proper charge regarding demand allegedly made on 6 th August 2004 and 13 th August 2004, grave prejudice has been caused to the appellant, who could not defend himself properly.

¶6The learned senior counsel for the appellant submitted that, in any event, the complainant had not supported the prosecution, and the shadow witness (PW-3) did not depose that in his presence there was any demand of the sum of Rs.500/- by the appellant for returni ng the sale deed to the complainant. He urged that the offence punishable under Section 7 was not made out without proof of demand. He urged that as no offence was made out under Section 7, even the offence under clause

(d) of sub-section (1) of Section 13 was not established.

¶7Dr Joseph Aristotle, the learned counsel representing the State Government, submitted that in view of Section 464 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’), no defect or omission in the framing of charge is fatal to the prosecution case unless any prejud ice caused due to the said omission or failure of justice is established by the accused. He submitted that, in this case, prejudice has not been shown.

¶8He relied on this Court’s decisions in the cases of Mohan Singh v. State of Bihar 1 and Union of India v. Ex-GNR Ajeet Singh 2. The learned counsel lastly relied upon a decision of the Const itution Bench in the case of Neeraj Dutta v. State (Govt. of NCT of Delhi) 3 for submitting that a demand for gratification can be established even on the basis of circumstantial evidence. FINDING ON PROOF OF DEMAND

¶9We have considered the submissions. It is well settled that for establishing the commission of an offence punishable u nder Section 7 1 (2011) 9 SCC 272 2 (2013) 4 SCC 186 3 2022 SCC online SC 1724 of the PC Act, proof of demand of gratification and ac ceptance of the gratification is a sine qua non . Moreover, the Constitution Bench in the case of Neeraj Dutta 3 has reiterated that the presumption under Section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accu sed and the acceptance thereof.

¶10As stated earlier, complainant PW-2 has not supported t he prosecution. He has not said anything in his examination-in-chief about the demand made by the appellant. The public prosecutor cross-examined PW-2. The witness stated that there was no demand of a bribe made by the appellant. According to him, he filed a complaint as the return of the sale deed was delayed. Though PW-2 accepted that he had filed t he complaint, in the cross-examination, he was not confronted wi th the material portions of the complaint in which he had narrated how the alleged demand was made. The public prosecutor ought to have confronted the witness with his alleged prior statements in the complaint and proved that part of the complaint through the concerned police officer who had reduced the complaint into writing. However, that was not done.

¶11Now, we turn to the evidence of the shadow witness (PW-3). In the examination-in-chief, he stated that the appellant asked the PW-2 whether he had brought the amount. PW-3 did not say that the appellant made a specific demand of gratification in his presence to PW-2. To attract Section 7 of the PC Act, the demand for gratifica tion has to be proved by the prosecution beyond a reasonable doubt. The word used in Section 7, as it existed before 26 th July 2018, is ‘gratification’. There has to be a demand for gratification. It is not a simple demand for money, but it has to be a demand for gratification. If the factum of d emand of gratification and acceptance thereof is proved, then the pre sumption under Section 20 can be invoked, and the Court can presume th at the demand must be as a motive or reward for doing any official act . This presumption can be rebutted by the accused.

¶12There is no circumstantial evidence of demand for gratification in this case. In the circumstances, the offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) have not been established. Unless both demand and acceptance are established, offence of obtaining pecuniary advantage by corrupt means covered by clauses (i) and (ii) of Section 13(1)(d) cannot be proved. EFFECT OF THE FAILURE TO FRAME A PROPER CHARGE

¶13We must deal with another argument made by the learned senior counsel appearing for the appellant. That is about the fai lure to frame a proper charge for the offence punishable under Section 7. The relevant portion of the charge reads thus: “Y ou, working as the Sub Registrar at Kannivadi, Dindigul District from 27.10.2003 to 27.10.2003 and as such you are a public servant you registered the sale deed of 16.05 cents of land purchased by Sundaramoorthy on 12.07.2004 and demanded a sum of Rs.500/- from Sundaramoorthy as gratification other than leg al remuneration for returning the registered document and a lso received Rs.500/- as bribe, hence you disclosed the offe nces punishable u/s. 7 of Prevention of Corruption Act 1988 and triable by this Court.”

¶14Thus, the Special Court omitted to frame a specific charge on demand allegedly made by the appellant on 6 th and 13 th August 2004 and acceptance thereof on 13 th August 2004.

¶15Under Section 464 of CrPC, omission to frame a charge or any error in charge is never fatal unless, in the opinion of t he Court, a failure of justice has in fact been occasioned thereby. In this case, from the perusal of the cross-examination of PW-3 and other prosec ution witnesses made by the Advocate for the appellant, it is apparent that the appellant had clearly understood the prosecution case about the first alleged demand made on 6 th August 2004 and the subsequent alleged demand and acceptance on 13 th August 2004. There is no doubt that this is a case of omission to frame a proper charge, and what ever charge has been framed is, per se defective. However, by reason of the said omission or defect, the accused was not prejudiced insofar as his right to defend is concerned. Therefore, in this case, the omission to frame charge and/or error in framing charge is not fatal.

¶16We find that, in this case, the charge has been frame d very casually. The Trial Courts ought to be very meticulous when it comes to the framing of charges. In a given case, any such error or omission may lead to acquittal and/or a long delay in trial due to an order of r emand which can be passed under sub-section (2) of Section 464 of CrP C. Apart from the duty of the Trial Court, even the public prosecutor has a duty to be vigilant, and if a proper charge is not framed, it is his duty to apply to the Court to frame an appropriate charge.

¶17The appeal is allowed. The impugned judgments are quashed and set aside, and the appellant is acquitted of the offences alleged against him. The bail bonds of the appellant stand cancelled. Nidhi Jain Appeal allowed. (Assisted by : Yash Chavan and Tamana, LCRAs)