Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1050 OF 2022
[Arising out of Special Leave Petition (Criminal) No.2403 of 2017]
SHIV KUMAR SHARMA APPELLANT(S)
VERSUS
STATE OF RAJASTHAN RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
Leave granted.
1.
2. The appeal challenges the judgment and order dated
06.01.2017 passed by the learned Single Judge of the High
Court of Judicature for Rajasthan at Jaipur thereby
dismissing the appeal filed by the appellant/accused, which
was in turn filed thereby challenging the judgment and order
dated 24.10.2013 passed by the learned Special Judge,
Prevention of Corruption Act No. 1, Jaipur (hereinafter
referred to as “the Special Judge”), convicting the appellant
for the offences punishable under Section 13(1)(d)(ii) read
with Section 15 of the Prevention of Corruption Act, 1988
(‘PC Act’ for short) and under Section 477A of Indian Penal
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Code, 1860 (“IPC” for short) and sentencing him to suffer
rigorous imprisonment for one year and a fine of Rs. 5000/
each for both the offences.
3. The Special Judge, vide order dated 03.06.2004, framed
the following charges against the appellant:
“Firstly in the year 1994, on 25.04.1994
and around the same time, while working
as public servant, you had conspired with
the coaccused Bhagwan Sahai and in
furtherance of that criminal conspiracy, you
had received an advance of Rs. 15,000/
out of the approved amount of Rs. 91,500/
with regard to construction of rooms and
varandha in the Primary School, Mankot
and Bhagwan Sahai had submitted the
work of Rs. 14,508/ in three muster rolls
and the voucher of construction material of
Rs. 18,994/ thereby informed the
expenditure as Rs. 33,502/ which was
accepted at page No. 71 and 72 of M.B. No.
51 and mentioned as Rs. 34,580.13 by Shiv
Kumar Sharma but later on, on complaint,
the said amount of Rs. 34,580/ was
modified to Rs. 25,911/.
In the same manner, in furtherance of
the aforesaid criminal conspiracy, an
advance of Rs. 28,000/ was received out of
the approved amount of Rs. 80,000/ for
construction of rooms and varandha in
Primary School Surjanpur and Sh.
Bhagwan Sahai had shown the expenditure
of Rs. 61,843.40 including the expenses of 7
muster rolls amounting to Rs. 36,552/ and
the voucher of construction amounting to
Rs. 25,291.40. The said amount was
entered by Sh. Shiv Kumar Sharma at page
No. 7172 of M.B. No. 51 as Rs. 68,776/
but on complaint, the said amount of Rs.
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68,776/ was reduced to 45,582/ by
cutting. In the enquiry, only work worth Rs.
28,264.42 was found at Surjanpur and
work worth Rs. 25,911/ was found at
Mankot and thus, you have shown the
excess expenditure of labour and
construction which was excess of Rs.
7,698/ at Mankot and Rs. 16,644/ at
Surjanpur, totalling Rs. 22,353/ for which
the excess payment was made and wrongful
loss was caused to the State Government
and wrongful gain was received by you. You
also created false record by cutting in the
records. The said act of you being the public
servant is a criminal offence. Thus, you
have committed a punishable offence under
section 417, 477A read with section 120B
IPC and offence under section 13(1)(d)(2) of
the Prevention of Corruption Act, 1988, for
which I have taken cognizance.”
It appears that a complaint was made to the authorities
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regarding malpractices in the construction of rooms and
varandha in Primary School, Mankot and Surjanpur. It was
the prosecution case that, in the Measurement Book with
regard to Mankot, the amount was reduced from Rs.
34,580/ to Rs. 25,911/ by the appellant after the
complaint was made. With regard to the construction work
at Surjanpur, after the complaint was made, the amount
was reduced to Rs.45,582/ from Rs.68,776/.
5. After the receipt of the complaint, Mr. Mahesh Prasad
Mathur was appointed as an Inquiry Officer. After
completion of inquiry, he submitted an inquiry report. On
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the basis of the inquiry report, the crime came to be
registered. The chargesheet was filed. The appellant pleaded
not guilty and claimed to be tried. The learned Special
Judge, at the conclusion of the trial, convicted the appellant
as aforesaid. The appellant filed an appeal before the High
Court and the High Court confirmed the order of the learned
Special Judge. Hence the present appeal.
Mr. Ritesh Agrawal, the learned counsel appearing on
6.
behalf of the appellant submits that both the High Court and
the learned Trial Court have grossly erred in not giving due
weightage to the evidence of PW8 Mr. Mahesh Prasad
Mathur as well as PW14Jai Bhagwan, the Investigating
Officer.
7. The learned counsel further submits that there is no
material to show that the appellant either had made any
demand or by abusing his position as a public servant, had
obtained for himself or any other person any valuable thing
or pecuniary advantage. It is submitted that in the absence
of any material to show that the appellant attempted to
obtain for himself or any other person any valuable thing or
pecuniary advantage, the conviction under Section 13(1)(d)(ii)
read with Section 15 of the PC Act was not tenable. He
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further submits that for an offence punishable under Section
477A of the IPC, the prosecution is required to establish that
the alleged act was willful with an intent to defraud. It is his
submission that no such evidence has come up on record.
8. Learned counsel therefore, submits that the concurrent
orders of conviction are liable to be set aside and the accused
is entitled to be acquitted.
9. Dr. Manish Singhvi, learned Additional Advocate
General for the State of Rajasthan vehemently opposes the
appeal. He submits that the scope of interference in
concurrent findings of fact is very limited. He submits that
the learned Trial Court and the High Court, upon correct
appreciation of evidence, have found that the appellant had
manipulated the record with dishonest intention. He
submitted that only after the complaint was made to the
higher authorities, the appellant, in order to save his skin,
had manipulated the record and as such, the case clearly
falls under Section 477A of the IPC.
10. No doubt that the scope of interference in the
concurrent findings of the fact is very limited. Unless the
findings are found to be perverse or impossible, the Court
would refrain from interfering with the concurrent findings of
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fact. However, it is settled that when the findings recorded by
the courts below are found to be recorded by ignoring the
material evidence or the appreciation of evidence is
manifestly erroneous, they would not come in the way of this
Court in interfering with the same.
11. For an offence punishable under Section 13(1)(d)(ii) read
with Section 15 of the PC Act, it is necessary to establish
that a public servant has attempted to obtain for himself or
for any other person any valuable thing or pecuniary
advantage. In the present case, no such material has come
on record. On the contrary, the evidence of PW14Jai
Bhagwan, the Investigating Officer would clearly show that
the payment of the construction material was directly made
to the Gram Sewak by the Panchayat Samiti. It would further
reveal that the bill of the material was also directly sent to
Gram Sewak by the Panchayat Samiti. There was no
verification done by the appellant. It is clearly admitted that
the appellant was not aware of the amount paid to the Gram
Sewak with respect to the construction material. It is further
admitted that at the relevant time, there were around 100 to
125 panchayat works going on under the supervision of the
present appellant. It is further admitted that there was no
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material placed on record to show that the corrections in Ex
article2 from ExP22 to Ex27 was made by the appellant
after the complaint. It will be relevant to refer to the following
part of deposition of PW14Jai Bhagwan, the I.O.:
“I had not found any criminal charges
against Shiv Kumar in my investigation
report sent to the Headquarter and had only
recommended for Departmental Enquiry.
However, on the decision of the higher
officials, charge sheet was filed.”
12. PW14 further admits that the amount paid by the
Panchayat Samiti was as per the amount corrected by the
appellant. It is further admitted that there was no evidence
to show that the accused Bhagwan Sahai and the appellant
had made corrections together. He further admits that Shiv
Kumar Sharma, that is the present appellant, had made a
complaint to the District Magistrate about the irregularity in
the construction work by Bhagwan Sahai, Gram Sewak.
13. These vital aspects that the appellant did not have any
role to play in either the sanctioning of the money or making
of payment, have been totally ignored by both the Courts.
The evidence that in the investigation, the Investigating
Officer had not found any criminal intent has also been
ignored. In that view of the matter, the conviction under
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Section 13(1)(d)(ii) read with Section 15 of the PC Act is
totally unsustainable.
14. That leaves us with conviction under Section 477A of
the IPC. For a conviction under Section 477A of the IPC, it
is necessary for the prosecution to establish that the
making of false entry or omission or alternation of such
entries has been done willfully with an intent to defraud. No
such material has been placed on record by the
prosecution. On the contrary, the evidence of PW8Mahesh
Prasad Mathur, who was appointed as an Inquiry Officer,
would show that the allegations made against the appellant
were not sustainable. It will be relevant to refer to the
deposition of PW8Mahesh Prasad Mathur, which reads
thus:
“When I went on the spot to conduct
enquiry then M.B. of Mankot and Surjpur
was given to me. On the basis of which on
dated 4.10 and 19.10.94 I had conducted
enquiry after visiting the spot. On the
instructions of C.O. I had prepared the
difference detail on 17.2.95. At page No.
71,72 of the MB No. 51 (Article2) the
measurement have been recorded by the Jr.
Eng. That was found correct upon my
examination. Against this work of Rs.
25911/ payment of Rs. 13422/ was made
as labour charges, which is entered in the
MB from X to Y. I did not find any
irregularity in the work of village Mankot. In
case by mistake if any mistake is done in
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the total of MB, then at the time of
preparing bill on the basis of MB, this
mistake can be corrected by the account
branch. I had gone there three months after
ending of the famine relief works. At that
place (Surjanpur) for the supervision of the
material of work, there was no person
appointed. On the spot there was not
watchman, in the absence of which if
anyone would take the material lying there,
I cannot say. The Patties which have been
shown in the MB, the same were not found
on the spot, therefore, I had noted about it
in the Report. It is the responsibility of the
Gram Sewak to get conducted the
construction work. If the costs of Patties of
Rs. 6914/ would be included in my
evaluation of Rs. 40267/, then the
valuation amount becomes Rs. 47181/. Rs.
6914/ the cost of patties is written
according to BSR. When MB51 (Article2)
was received to me, at that time due to
mistake in total by J. En by cutting the
amount of Rs. 59273/ the amount 47183/
has been marked, whereupon the J. En put
his signatures. The payment of construction
material was made to the Sarpanch of the
Gram Panchayat, the agency which get
conducted the work while the muster roll’s
payment is made by the tehsil employees.
The payment of construction material was
made by the Panchayat.”
The above deposition would clearly show that the
15.
measurements recorded by the appellant were found to be
correct by the Inquiry Officer. He clearly admits that he did
not find any irregularity in the work of village Mankot. He
further admits that if any mistake was done in the total of
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Measurement Book at the time of preparing the bill, the
mistake could be corrected by the accounts branch.
16. PW8Mahesh Prasad Mathur further admitted that in
so far as Surjanpur is concerned, no person was appointed
as a watchman or a supervisor. He admits that in the
absence of a watchman, it is possible that the material lying
at the site could be taken by anybody. He admits that even
the patties were not found on the spot and has noted about
the same in the report. He further admits that if the cost of
patties of Rs. 6914/ were included in the valuation of Rs.
40,677/ then the valuation comes to Rs.47,181/.
PW8Mahesh Prasad Mathur has further admitted that
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the payment for the construction material was made directly
to the Sarpanch of the Gram Panchayat by the agency while
the muster roll’s payment was made by the tehsil
employees. Payment of the construction material was made
by the Panchayat. Thus, it could clearly be seen that the
appellant had no role whatsoever in either approving the
payment or making the payment.
18. The evidence of PW8Mahesh Prasad Mathur would
clearly show that at the most, the act of the appellant could
be termed as irregular. However, there was nothing on
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record to show that such irregularities were committed
willfully with an intent to defraud.
19. In that view of the matter, we find that even the
conviction in so far as Section 477A of the IPC is concerned,
is not sustainable in law.
Dr. Manish Singhvi, learned Additional Advocate
20.
General for the State of Rajasthan has submitted that since
the findings of fact are concurrent, the Court should be slow
in interfering with the same.
21. It is settled principle of law that concurrent findings of
fact cannot be interfered with unless shown to be perverse.
Concurrency, after all, is no answer to perversity.
22. This Court in the case of Mahesh Dattatray
1
had laid down
Thirthkar vs State of Maharashtra
certain principles when this Court is entitled to exercise
powers under Article 136 of the Constitution of India and
interfere with the findings of fact. One of the principles laid
down is thus:
“Where findings of subordinate courts are
shown to be perverse or based on no evi
dence or irrelevant evidence or there are ma
terial irregularities affecting the said findings
or where the court feels that justice has
1 (2009) 11 SCC 141
12
failed and the findings are likely to result in
unduly excessive hardship .”
This Court in the aforesaid case has referred to some of
23.
the earlier judgments of this Court on the issue. It will be
apposite to refer to the same, which are as under:
“ 29. Again in H.P. Admn. v. Om
Prakash [(1972) 1 SCC 249 : 1972 SCC (Cri)
88] this Court while considering its power
under Article 136 of the Constitution of India
on the question of interference with the find
ings of fact, observed as follows: (SCC p. 256,
para 4)
“ 4 . In appeals against acquittal by special
leave under Article 136, this Court has un
doubted power to interfere with the findings
of fact, no distinction being made between
judgments of acquittal and conviction,
though in the case of acquittals it will not or
dinarily interfere with the appreciation of evi
dence or on findings of fact unless the High
Court ‘acts perversely or otherwise improp
erly’.”
30. In Arunachalam v. P.S.R. Sadhanantham
[(1979) 2 SCC 297 : 1979 SCC (Cri) 454] this
Court while agreeing with the views ex
pressed in the aforementioned decisions of
this Court stated thus: (SCC p. 300, para 4)
“ 4 . … The power is plenary in the sense
that there are no words in Article 136 itself
qualifying that power. But, the very nature of
the power has led the court to set limits to it
self within which to exercise such power. It is
now the wellestablished practice of this
Court to permit the invocation of the power
under Article 136 only in very exceptional
circumstances, as when a question of law of
general public importance arises or a deci
13
. But,
sion shocks the conscience of the court
within the restrictions imposed by itself, this
Court has the undoubted power to interfere
even with findings of fact, making no distinc
tion between judgments of acquittal and con
viction, if the High Court, in arriving at those
findings, has acted ‘perversely or otherwise
improperly’.”
(emphasis supplied)
31. Again in State of U.P. v. Babul
Nath [(1994) 6 SCC 29 : 1994 SCC (Cri)
1585] this Court observed as follows: (SCC p.
33, para 5)
“ 5 . At the very outset we may mention that
in an appeal under Article 136 of the Consti
tution this Court does not normally reap
praise the evidence by itself and go into the
question of credibility of the witnesses and
the assessment of the evidence by the High
Court is accepted by the Supreme Court as
final unless, of course, the appreciation of
evidence and finding is vitiated by any error
of law of procedure or found contrary to the
principles of natural justice, errors of record
and misreading of the evidence, or where the
conclusions of the High Court are manifestly
perverse and unsupportable from the evi
dence on record.”
32. In Pattakkal Kunhikoya v. Thoopiyakkal
Koya [(2000) 2 SCC 185] it was held (SCC p.
186 c d ) that when an appeal arises under
Article 136 of the Constitution of India,
“[i]t is not the practice of the Supreme Court
to reappreciate the evidence for the purpose
of examining whether the finding of fact ar
rived at by the High Court and the subordi
nate court is correct or not. Exception can be
taken only in the event of serious miscarriage
14
but not other
of justice or manifest illegality
wise”.
(emphasis supplied)
33. In Mithilesh Kumari v. Prem Behari
Khare [(1989) 2 SCC 95] this Court has held
(SCC p. 99) that where findings of subordi
nate courts are shown to be
“ perverse or based on no evidence or irrele
vant evidence or there are material irregulari
ties affecting the said findings or where the
court feels that justice has failed and the find
ings are likely to result in unduly excessive
hardship, the Supreme Court could not de
cline to interfere merely on the ground that
findings in question are findings of fact ”.
(emphasis supplied)”
Recently, this Court in the case of
24. Ashoksinh
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Jayendrasinh vs. State of Gujarat had also held that
when the High Court has failed to appreciate the oral
evidence in correct perspective, this Court would certainly
be entitled to reappreciate the evidence. In the said case
also, this Court, finding that the conviction was recorded
after ignoring the vital evidence, has set aside the order of
conviction and acquitted the accused.
25. In the present case, as discussed hereinabove, both the
Trial Court and the High Court have failed to take into
consideration the relevant and vital admissions in the
2 (2019) 6 SCC 535
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evidence of PW8Mr. Mahesh Prasad Mathur and PW 14Jai
Bhagwan. In our view, the said admissions were vital.
Basing the order of conviction by ignoring the said vital
admissions, in our view, would bring the impugned
judgments in the realm of perversity.
26. As such, the appeal is allowed. The order of conviction
and sentence as recorded by the learned Special Judge,
Prevention of Corruption Act No.1, Jaipur and confirmed by
the High Court are quashed and set aside. The appellant is
acquitted of all the charges. The bail bonds stand
discharged.
Pending application(s), if any, shall stand disposed of.
27.
……............... J.
(B.R. GAVAI)
…………..………………………............. J.
(PAMIDIGHANTAM SRI NARASIMHA)
NEW DELHI
th
28 JULY, 2022