Full Judgment Text
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PETITIONER:
BHUPESH DEB GUPTA (DEAD) BY L.RS.
Vs.
RESPONDENT:
STATE OF TRIPURA
DATE OF JUDGMENT22/09/1978
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
SINGH, JASWANT
KOSHAL, A.D.
CITATION:
1978 AIR 1672 1979 SCR (1) 906
1979 SCC (1) 87
ACT:
Criminal Procedure Code, 1973 (Act II of 1974),
Sections 211, 212, 213, 214 and 215-Charge should not be
vaguer and every particular required to be stated must be
furnished so that the accused may not be misled and
prejudiced.
Penal Code, 1872-Section 161, ingredients of-
Presumptions under Section 4(1) of the Prevention of
Corruption Act-Scope of Section 4(1) of POCA.
HEADNOTE:
Bhupesh Deb Gupta, the original appellant was tried,
found guilty of the charge of receiving Rs. 75/- from one
Nikhil Chakraborty on or about 2-12-1961, convicted of an
offence under Section 161 I.P.C. and sentenced to suffer
rigorous imprisonment for two months. The High Court in
appeal, while confirming the conviction under section 161
I.P.C., reduced the sentence to a fine of Rs. 200/- only,
taking into account the age and the long lapse of time
between the date of offence and the date of conviction.
During the pendency of the appeal by special leave the
original appellant died and therefore, his legal
representative was granted leave to continue the appeal
under Section 494(2) of the Crl.P.C.
Allowing the appeal the Court,
^
HELD : (1) Before the accused can be held guilty of an
offence under Section 161 of the Indian Penal Code, the
following ingredients will have to be proved:
1. The accused at the time of the offence was a
public servant.
2. That he accepted from some person a
gratification.
3. That such gratification was not a legal
remuneration due to him.
4. That the accused accepted the gratification
as a motive or reward for one of the
following purposes:
(a) doing or forbearing to do an official
act;
(b) showing or forbearing to show favour or
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disfavour to someone in the exercise of
his official functions;
(c) rendering or attempting to render, any
service or disservice to someone, with
the Central or any State Government or
Parliament or the Legislature of any
State, or with any public servant.
In the instant case, the fourth ingredient has not been
fulfilled due to the defect in the charge framed as to the
motive and also the non-examination of Nikhil Chakraborty as
a witness on the ground "his whereabouts are not known".
[909D-E]
(2) A reading of Section 4(1) of the Prevention of
Corruption Act and Explanation to Section 161 of the Indian
Penal Code would show that when it is proved that the
accused has accepted a gratification it shall be presumed
907
unless the contrary is proved that he accepted it as a
motive or reward such as is mentioned in Section 161.
Section 161, therefore, provides presumption in favour of
the prosecution. When once it is proved that the accused had
accepted an illegal gratification it shall be presumed that
it is for one of the purposes in Section 161. The
Explanation to Section 161 makes it clear that a person who
receives a gratification as a motive for doing what he does
not intend to do, or as a reward for doing what has not done
comes within the words, "a motive or reward for doing".
[911D-F]
(3) The prosecution would be entitled to rely on the
presumption under Section 4(1) of the Prevention of
Corruption Act and Explanation to Section 161 I.P.C. if the
necessary averments were made in the charge and the accused
was given an opportunity to explain the circumstances
against him and to meet the charge which the prosecution was
trying to make out against the accused. [912A-B]
In the instant case; it cannot be said that the accused
was not prejudiced by the frame of the charge, because (a)
It is admitted that though the accused was a public servant
in exercise of his official position, he could not secure a
job which he promised. [911H and 912H]
(b) It is not the case of the prosecution that the
accused received a gratification but he had no intention to
do what he promised. [912A]
(c) Nor was it alleged in the charge that the
gratification was intended for being paid to a public
servant. The prosecution case is that the gratification was
for inducing a public servant to show favour in this
respect. [912A, C]
(d) It is, no doubt, true that the accused cannot
complain of any defect in the charge if he is not
prejudiced. Even in Section 313 (old section 342)
examination of the accused, the purpose for receipt of the
gratification was not put to him and explanation asked for.
[912A-D]
(e) The High Court understood the charge as meaning
that the money was sent by Nikhil Chakraborty on behalf of
Sachindra Deb. [912F]
and (f) The charge and the judgment of the Courts below
indicate that the Courts proceeded on the basis that the
gratification was received by the accused for showing favour
as a ’public servant’, while the basis of the charge sought
to be made out in the present appeal is that "the
gratification was paid to the accused for influencing a
public servant." [912G]
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
74 of 1972.
Appeal by Special Leave from the Judgement and Order
dated 30-7-71 of the Judicial Commissioner Court, Tripur in
Crl.A.21/67.
M. K. Ramamurthi, J. Ramarurthi and Miss R. Vaigai for
the Appellant.
E. C. Agarwala and R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by
KAILASAM, J.-This appeal is by special leave against
the judgment of the Judicial Commissioner at Agartala
convicting the appellant,
908
Bhupesh Deb Gupta of an offence under Section 161 Indian
Penal Code and sentencing him to a fine of Rs. 200/-
Pending appeal in this Court, the appellant died and
his widow brought on record as the legal representative of
Bhupesh Deb Gupta, as she was adversely affected by the
sentence of fine and conviction under Section 161, as, it
deprived her of receiving the pay and other allowances which
the accused would have been entitled to but for his
conviction.
The accused Bhupesh Deb Gupta alias Erick was working
as an Upper Division Clerk in the Tripura Territorial
Council in the year 1959. While investigating some other
offence, P.W. 1 Shri T. Ganguly who was the Deputy
Superintendent of Police in Tripura in 1963 came across
certain postal envelopes in the Office of the Chief
Executive Engineer which disclosed that the accused was
receiving bribes. After investigation, the accused was
charged with various offences. In this appeal we are only
concerned with the charge that the accused received a sum of
Rs. 75/- from Nikhil Chakraborty as gratification as a
motive or reward for showing favour to him and that on or
about 2nd December, 1961 he received Rs.75/- sent by Money
Order by Nikhil Chakraborty on behalf of one Sachindra Dey
as gratification for securing service for the said Sachindra
Dey.
The trail Court found the accused guilty of the charge
of receiving Rs. 75/- from Nikhil Chakraborty on or about
2nd December, 1961 and convicted him of an offence under
Section 161 Indian Penal Code and sentenced him to suffer
rigorous imprisonment for two months. The Trial Court framed
other charges but found him guilty of another charge which
need not be referred to as finally he was acquitted by the
High Court of all charges except the one referred to above.
The High Court while confirming the conviction under Section
161 Indian Penal Code regarding the receipt of Rs. 75/- from
Nikhil Chakraborty reduced the sentence to a fine of Rs.
200/- only, taking into account the age and the long lapse
of time between the date of offence and the date of
conviction.
The charge with which we are concerned as framed by the
Sub-Judge, Agartala reads as follows:
"That you Shri Bhupesh Deb Gupta, alias Erick Deb
Gupta, Assistant, Civil Secretariat, Tripura, while
working as Upper Division Clerk in the Office of the
Chief Executive Officer of the Tripura Territorial
Council (now defunct) accepted on or before 2nd day of
December, 1961 a gratification other than legal
remuneration of an amount of
909
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Rs. 75/- through money order from Shri Sachindra Deb,
remitted by Shri Nikhil Chakraborty for showing in
exercise of your official function, favour to the said
Sachindra Deb, on the plea of securing service for the
said Sachindra Deb and thereby committed an offence
punishable under Section 161 of the Indian Penal Code
and within the cognizance of this Court".
The charge states that accused was a public servant and
that he accepted a gratification other than legal
remuneration of an amount of Rs.75/- from Nikhil Chakraborty
for showing, in exercise of his official function, favour to
Sachindra Deb by securing service for Sachindra Deb. Before
the accused can be held guilty of an offence under Section
161 of the Indian Penal Code, the following ingredients will
have to be proved.
1. The the accused at the time of the offence
was a public servant.
2. That he accepted from some person a
gratification.
3. That such gratification was not a legal
remuneration due to him.
4. That the accused accepted the gratification
as a motive or reward for one of the
following purposes:
(a) doing or forbearing to do an official
act;
(b) showing or forbearing to show favour or
disfavour to some one in the exercise of
his official functions
(c) rendering or attempting to render, and
service or disservice to someone, with
the Central or any State Government or
Parliament or the Legislature of any
State, or with any public servant.
It is not in dispute that the first three requirements
are satisfied, namely, that the accused was a public
servant, that he accepted a gratification and that the
gratification was not a legal remuneration due to him. The
contention that was raised by Mr. Ramamurthy, the learned
counsel appearing for the accused, is that the fourth
requirement has not been fulfilled. He submitted that the
prosecution case is not clear as to whether the
gratification was accepted as a motive or reward for showing
a favour in exercise of his official function or whether the
gratification was accepted for payment to another public
servant. In order to appreciate the contentions of the
learned counsel it is necessary to state what has been found
by the High Court against the appellant.
910
Nikhil Chakraborty was not examined as the summons sent
to him were returned unserved on the ground that his
whereabouts are not known. The only witness that was
examined was the person on whose behalf the money was sent,
namely, Sachindra Deb. Sachindra Deb turned hostile leaving
the prosecution with only a few documents to rely on to
prove their case. The documents relied on are Exhibits P-5,
P-6, P-7 and P-3b. P-6 is the earliest in point of time. It
is a letter written by the accused to Nikhil Chakraborty on
23-11-61. The letter acknowledges an earlier letter from
Nikhil Chakraborty. It refers to the matter about the
gentleman of Kamalpur presumably Sachindra Deb and states
that he was given word that a job of social worker would be
given. It further states that the recruitment will be done
in the last week of December. By that letter the accused
asked Nikhil Chakraborty to remit a sum of Rs. 80/- or Rs.
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90/- by T.M.O. which was to be given to the gentleman "who
is Office Head Clerk". On receipt of this letter, a money
order (Exhibit P-5) for Rs. 75/- was sent by Nikhil
Chakraborty on 31-11-1961 at Agartala Post Office. The
accused signed the money order form and received the money.
The receipt was received back at Kamalpur post office on 2-
12-1961. After the receipt of Rs. 75/- the accused again
wrote on 3-12-1961 (Exhibit P-7) asking for the balance of
Rs. 15/- to be remitted. It is also indicated that in all a
sum of Rs. 150/- will have to be given. The Courts below
accepted the prosecution case that Exhibits P-6, P-7 were
written by the accused, and that the money order receipt
(Exh. P-5) was signed by him. The trial Judge also compared
the signature of the accused in Exh. P-5 and the writing in
P-6 and P-7 with his admitted signatures and found that
exhibits P-6 and P-7 and the signature in Exh. P-5 were of
the accused. The learned counsel for the appellant does not
question the correctness of these findings. It is,
therefore, clear that the accused under Exhibit P-6 demanded
a sum of Rs. 90/- for securing a job for Sachindra Deb and
in response to that letter money order for Rs. 75/- was sent
by Nikhil Chakraborty and received by the accused. Again
under Exhibit P-7 on 3-12-1961 the accused had asked for the
balance of Rs. 15/-. There can be no doubt that these
documents prove that the accused was a public servant at the
relevant time and received an illegal gratification which
was not due to him as legal remuneration. It is not clear
from the correspondence whether the person "Office Head
Clerk" is a public servant. But the learned counsel
appearing for the State referred us to Exhibit P-3b another
letter by the accused to Nikhil Chakraborty dated 21-2-1962
wherein the accused stated that the recruitment to the job
of the candidate had been postponed
911
due to elections and all appointments were stopped for the
time being. This letter also refers to an order of the Chief
Commissioner. It is submitted that the internal evidence
furnished by the appellant and a reading of these letters
would show that the person to whom the money was intended
was a public servant. On behalf of the State Government our
attention was drawn to the presumption that is available to
the prosecution under Section 4(1) of the Prevention of
Corruption Act which provides that when it is proved in any
trial of an offence punishable under Section 161 of the
Indian Penal Code, that an accused person had accepted for
himself or for any other person, any gratification it shall
be presumed unless the contrary is proved that he accepted
that gratification as a motive or reward such as is
mentioned in Section 161 or, as the case may be, without
consideration or for a consideration which he knows to be
inadequate. The explanation to Section 161 states that a
person who receives a gratification as a motive for doing
what he does not intend to do, or as a reward for doing what
he has not done, comes within the words "A motive or reward
for doing".
A reading of Section 4(1) of the Prevention of
Corruption Act and Explanation to Section 161 of the Indian
Penal Code would show that when it is proved that the
accused has accepted a gratification it shall be presumed
unless the contrary is proved that he accepted it as a
motive or reward such as is mentioned in Section 161. This
Section, therefore, provides a presumption in favour of the
prosecution. When once it is proved that the accused had
accepted an illegal gratification, it shall be presumed that
it is for one of the purposes mentioned in Section 161. The
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Explanation to Section 161 makes it clear that a person who
receives a gratification as a motive for doing what he does
not intend to do, or as a reward for doing what he has not
done comes within the words "A Motive or reward for doing".
Relying on the two provisions referred to above, it was
submitted by the learned counsel for the State that the
prosecution having proved that the accused have received a
sum of Rs. 75/- as an illegal gratification, the Court
should presume the necessary motive or reward as is
mentioned in Section 161. While there can be no doubt that
the submission of the learned counsel for the State is
sound, we find that there is one obstacle in the way of the
prosecution succeeding on the facts of this case.
The charge states that the amount of Rs. 75/- was
remitted for showing favour in exercise of his official
function. It is admitted that though the accused was a
public servant, in exercise of his official position he
could not secure a job which he promised. It
912
is not the case of the prosecution that he received a
gratification but he had no intention to do what he
promised. Equally, it is not alleged in the charge that the
gratification was intended for being paid to a public
servant. The prosecution would be entitled to rely on the
presumption under Section 4(1) of the Prevention of
Corruption Act and Explanation to Section 161, IPC if the
necessary averments were made in the charge and the accused
was given an opportunity to explain the circumstances
appearing against him. While the charge mentions the
gratification being paid for showing favour in exercise of
his official function, the prosecution case is that the
gratification was for inducing a public servant to show
favour in this respect. It is, no doubt, true that the
accused cannot complain of any defect in the charge, if he
is not prejudiced. The accused when questioned under Section
342 of the Criminal Procedure Code, the purpose of receipt
of the gratification was not put to him and explanation
asked for. The second question which relates to the charge
is in the following terms:
"What have you got to say regarding the charge
brought by the complainant’s party that on 2nd
December, 1961 A.D. or any time near about that, you
received a gratification other than legal remuneration
of an amount of Rs. 75/ by post through Shri Nikhil
Chakraborty, from one Shri Sachin Deb, giving him
assurance of securing a service for him. The accused
answered that it was false."
It was not suggested that the money was intended to be
paid to another public servant or that he retained the money
without intending to do what he promised.
The wording of the charge framed by the Special Judge
is that the money was remitted by Nikhil Chakraborty for
showing, in exercise of official function, a favour to the
said Sachindra Deb on the plea of securing service for the
said Sachindra Deb. The High Court understood the charge as
meaning that the money was sent by Nikhil Chakraborty on
behalf of Sachindra Deb as a gratification for securing
service for the said Sachindra Deb. It appears from the
charge and from the judgment of the courts below that the
courts proceeded on the basis that the gratification was
received by the accused for showing favour as a public
servant. As the basis of the charge is entirely different
from what is sought to be made out now i.e. the
gratification was paid to the accused for influencing a
public servant, it cannot be said that the accused was not
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prejudiced by the frame of the charge. It would have been
open to the prosecution to rely on the presumption if the
charge was properly
913
framed and the accused was given an opportunity to meet the
charge which the prosecution was trying to make out against
the accused. On a careful scrutiny of the facts of the case,
we are unable to reject the contentions of the learned
counsel for the accused that he was prejudiced by the defect
in the charge and that he had no opportunity to meet the
case that is put forward against him.
In the result, we accept the contention of the learned
counsel for the appellant and allow the appeal and set aside
the conviction and sentence imposed on him.
S.R. Appeal allowed.
914