Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1592 OF 2022
SOUNDARAJAN …APPELLANT
v.
STATE REP. BY THE INSPECTOR OF
POLICE VIGILANCE ANTICORRUPTION
DINDIGUL ...RESPONDENT
J U D G M E N T
ABHAY S. OKA, J.
FACTS
1. The 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 was sentenced to
Signature Not Verified
undergo imprisonment for one year and to pay a fine of Rs.
Digitally signed by
Indu Marwah
Date: 2023.04.17
17:50:15 IST
Reason:
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2,000/. High Court, by the impugned judgment, has
confirmed the conviction and sentence of the appellant.
2. The appellant was holding the post of SubRegistrar at
Kannivadi, Dindigul District, Tamil Nadu. The complainant
M. Sundaramoorthy (PW2), had purchased land measuring
th
16.05 cents. Accordingly, on 12 July 2004, sale deed was
presented before the appellant who was the SubRegistrar
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 said amount was issued by the appellant.
th
On 16 July 2004, when the complainant visited the
appellant's office, he was informed to bring FMB Sketch
from the concerned Government office. According to the
st
complainant, on 31 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 Sketch from the concerned office
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to show that the land subject matter of sale was cultivable.
Thereafter, the complainant obtained requisite documents
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and handed over the same to the appellant on 6 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 sale deed. As the complainant
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was not willing to give gratification, on 11 August 2004, he
filed a complaint with the Inspector of Police of the Anti
Corruption Unit.
th
3. Based on the complaint, a trap was laid on 12 August
2004, which was unsuccessful. According to the
th
prosecution case, the trap was again laid on 13 August
2004. It was successful, and in the presence of the shadow
witness Michael (PW3), the appellant was caught red
handed while accepting the bribe.
4. The prosecution examined 12 witnesses. PW1
N.Dhanam Jeyan was examined to prove the sanction
order. As stated earlier, PW2 M.Sundaramoorthy is the
complainant and PW3 Michael is the shadow witness. No
other witness is relevant for proving the alleged demand
made by the appellant. The complainant (PW2) did not
support the prosecution and was declared as hostile. The
appellant examined two defence witnesses, S. Kathiresan
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and Kalaiselvi to bring on the record audit report of the
office in which the appellant was working and a circular
issued by the Inspector General of Registration, which
required the SubRegistrar to visit a land subject matter of
sale deed for ascertaining its valuation.
SUBMISSIONS
The learned senior counsel Mr S.Nagamuthu,
5.
appearing for the appellant, submitted that there was no
charge framed as regards the demands made on 6th August
th
2004 and 13 August 2004. Inviting our attention to the
first charge framed by the Special Court, he urged that the
th
charge is about the alleged demand made on 12 July 2004
when the sale deed was registered. He submitted that even
according to the prosecution case, there was no demand
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made on 12 July 2004 at the time of the registration of the
sale deed. He submitted that because of this material defect
in the charge and omission to frame a proper charge
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regarding demand allegedly made on 6 August 2004 and
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13 August 2004, grave prejudice has been caused to the
appellant, who could not defend himself properly.
6. The learned senior counsel for the appellant submitted
that, in any event, the complainant had not supported the
prosecution, and the shadow witness (PW3) did not depose
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that in his presence there was any demand of the sum of
Rs.500/ by the appellant for returning 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 subsection (1) of
Section 13 was not established.
7. Dr 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 prejudice 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.
8. He relied on this Court's decisions in the cases of
1
and
Mohan Singh v. State of Bihar Union of India v. Ex
2
GNR Ajeet Singh . The learned counsel lastly relied upon a
decision of the Constitution Bench in the case of Neeraj
3
Dutta v. State (Govt. of NCT of Delhi) for submitting that
1 (2011) 9 SCC 272
2 (2013) 4 SCC 186
3 2022 SCC online SC 1724
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a demand for gratification can be established even on the
basis of circumstantial evidence.
FINDING ON PROOF OF DEMAND
9. We have considered the submissions. It is well settled
that for establishing the commission of an offence
punishable under Section 7 of the PC Act, proof of demand
of gratification and acceptance of the gratification is a sine
qua non . Moreover, the Constitution Bench in the case of
3
has reiterated that the presumption under
Neeraj Dutta
Section 20 of the PC Act can be invoked only on proof of
facts in issue, namely, the demand of gratification by the
accused and the acceptance thereof.
As stated earlier, complainant PW2 has not supported
10.
the prosecution. He has not said anything in his
examinationinchief about the demand made by the
appellant. The public prosecutor crossexamined PW2. 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 PW2
accepted that he had filed the complaint, in the cross
examination, he was not confronted with the material
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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.
11. Now, we turn to the evidence of the shadow witness
(PW3). In the examinationinchief, he stated that the
appellant asked the PW2 whether he had brought the
amount. PW3 did not say that the appellant made a
specific demand of gratification in his presence to PW2. To
attract Section 7 of the PC Act, the demand for gratification
has to be proved by the prosecution beyond a reasonable
th
doubt. The word used in Section 7, as it existed before 26
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
demand of gratification and acceptance thereof is proved,
then the presumption under Section 20 can be invoked,
and the Court can presume that the demand must be as a
motive or reward for doing any official act. This
presumption can be rebutted by the accused.
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12. There 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
13. We must deal with another argument made by the
learned senior counsel appearing for the appellant. That is
about the failure to frame a proper charge for the offence
punishable under Section 7. The relevant portion of the
charge reads thus:
"You, 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
legal remuneration for returning the
registered document and also received
Rs.500/ as bribe, hence you disclosed the
offences punishable u/s. 7 of Prevention of
Corruption Act 1988 and triable by this
Court."
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14. Thus, the Special Court omitted to frame a specific
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charge on demand allegedly made by the appellant on 6
th th
and 13 August 2004 and acceptance thereof on 13
August 2004.
15. Under Section 464 of CrPC, omission to frame a
charge or any error in charge is never fatal unless, in the
opinion of the Court, a failure of justice has in fact been
occasioned thereby. In this case, from the perusal of the
crossexamination of PW3 and other prosecution witnesses
made by the Advocate for the appellant, it is apparent that
the appellant had clearly understood the prosecution case
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about the first alleged demand made on 6 August 2004
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and the subsequent alleged demand and acceptance on 13
August 2004. There is no doubt that this is a case of
omission to frame a proper charge, and whatever 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.
We find that, in this case, the charge has been framed
16.
very casually. The Trial Courts ought to be very meticulous
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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 remand which can be
passed under subsection (2) of Section 464 of CrPC. 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.
17. The 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.
..……………………J.
(Abhay S. Oka)
....……….…………J.
(Rajesh Bindal)
New Delhi;
April 17, 2023.
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