Mr.Vrushal Sinha v.

Bhaskar Sehagal

ADVANCED ARGUMENTS Issue-1: Whether or not on the facts and circumstances of the case, the learned special Judge was correct in convicting Mr. Vrushal Sinha u/s. 7, 13(1) (d) r/w s. 13(2) of P.C. Act, 1988 ? 1.1 Essentials of offence u/s. 7, P.C. Act, 1988: It is most respect fully submitted before the Honble High Court that, to establish an offence u/s. 7 of the P.C. Act, 1988, it is necessary that: (i) The accused was a public servant or expected to be a public servant at the time when the offence was committed. (ii) The accused accepted or obtains or agreed to accept or attempted to obtain illegal gratification from some person. (iii) (iv) For himself or for any other person. Such gratification was not a remuneration to which the accused was legally entitled. (v) The accused accepted such gratification as a motive or reward for: (a) doing or forbearing to do an official act, or (b) doing or forbearing to show favour or disfavour to someone in the exercise of his official function, or (c) rendering or attempting to render any service or disservice to some one with the central or any state Govt. or parliament or the legislature of any state, or with any local authority or Govt.

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Mr.Vrushal Sinha v. Bhaskar Sehagal

company referred in s. 2 cl.(c) or with any public servant , whether named or otherwise.

But all the major ingredients of the offence u/s. 7, P.C. Act, 1988 are absent except the fact that the appellant was a public servant, at the time of happening of the event. 1.2 No demand or acceptance from Appellant: That the appellant has never made any such demand of Rs. 10,000 for sanctioning the bill of the complainant. That u/s. 7 of the Act, the mere absence of the word demand does-not indicate that demand on the part of the accused is not an essential element of the offence and therefore there is no requirement to prove the demand as an independent fact. If such an interpretation is accepted, the result may be catastrophic and any one may come forward to leave an allegation of corruption or bribery against a Govt. servant by just pushing money in to the pocket or throwing the same at his table and without even telling him the cause of it. In Ram Krishna v. State of Delhi1 , where in Justice Chandrasekhar Aiyer, speaking for the court, said in para 9 as the word obtains on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver The word obtains therefore, has been intentionally used by the legislature and it has a definite meaning. Therefore before any one can be proceeded against under these provisions, it is necessary to prove that it was a result of demand that money was passed on. Passing of money is a consequence of the demand. Obtains means to secure or gain

AIR 1956 SC 476 ; 1956 Cr.L.J. 837

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Mr.Vrushal Sinha v. Bhaskar Sehagal

something as a result of request or effort2. In case of obtainment the initiative vest in the person who receives and in that context a demand or request from him will be the primary requisite for an offence u/s. 13(1) (d) of the Act3. 1.3 S. 20 of the Act requires that the prosecution should prove that the accused accepted or agreed to accept the amount as a gratification. Accept means to take or receive with a consenting mind. It is therefore upon the prosecution to prove not only the passing of money into the hands of accused, but also that he took it with a consenting mind. These would necessities proof of either an agreement to accept prior to the actual acceptance or his consent to accept the same as gratification at the time money was offered4. But in the present case there was neither any prior agreement nor the actual acceptance on the part of the housing commissioner, the bare fact is that money was planted by the PW-3 and same was recovered by the trap. 1.4 Even if one accepts gratification or a valuable thing for any other person, he comes within the plain meaning of the words for himself or for any other person of the section, but an unconscious or unknowing transmitter or bearer would not come within the section. For instance if any postal or railway authority or any other carrier or agent who is asked to accept or carry money or valuable thing without knowing that it is the bribe for somebody else, he cannot to be said to have accepted bribe or valuable thing within the meaning of the section. This must go along with the idea of acceptance a conscious mind that the gratification or the valuable thing is for another person before such acceptance can come within the operation of the section5.

2 3

Shorter Oxford Dictionary. C. K. Damodaran v. Govt. of India, 1997 Cr.L.J. 739 (SC); 1997 (1) Crimes 75 (SC) 4 State v. Meena Ketan, AIR 1952 Orissa 267 5 M.C.Mitra v. State, AIR 1951 Cal 524

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Mr.Vrushal Sinha v. Bhaskar Sehagal

1.5 In a criminal trail the responsibility to prove a particular offence is always on the prosecution and mere recovery of money does not exclude the possibility that the accused was an innocent recipient of the same. The person to whom the gratification is offered must be conscious of the fact that the gratification is meant for him or for some other person6. The gratification must be impressed with the character of being illegal remuneration, which is knowingly given as such and knowingly accepted as such. If the victim has not slightest notion that the money or other illegal gratification which passes from him is not as a motive or reward for doing of forbearing to do any official act or for showing or forbearing to show favour or disfavour to the victim, then it is indeed difficult to hold that such transaction will amount to an offence7. 1.6 In anti corruption cases, offence is complete only when illegal gratification is accepted8. Where, accused a building inspector in a municipal corporation is alleged to have demanded illegal gratification for getting a plan sanctioned. As per instruction from the accused, the amount was paid to the peon outside his office and the tainted money was recovered from the possession of the peon in a trap. There is no allegation that the accused accepted the bribe himself. There is nothing to suggest that by abusing his position as a public servant the accused obtained pecuniary advantage, HC held, prima facie the accused can not be liable for the offence u/s. 7, 13(1)(d)of the P. C. Act, 1988 and quashed the F.I.R.9. 1.7 That mere acceptance, although, which is not in the present case, but as alleged by the complainant, without there being other evidence, would not be sufficient for convicting the appellant u/s 7, 13 (1) (d) r/w 13 (2) of the Act. That the complainant has also failed to prove the guilt of the appellant beyond the reasonable doubt, but has been trying to convince the
6 7

Permanand v. state, AIR 1955 NOC (All) 2726 Rabindranath Mukherjee v. State, AIR 1956 Cal. 116 8 Shayamlal sharma v. King Emperor 9 Prakash Chandra Sharma v. State of Punjab, 1994 (1) Crimes 335 (P & H)

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Mr.Vrushal Sinha v. Bhaskar Sehagal

court by mere preponderance of probabilities, which are also not certain and highly improbable. In the bribery case the complainant is an interested witness and his evidence must be considered with great caution and it can be accepted when it is corroborated in material particulars by other evidence adduced by the prosecution10. So, also in the present case, the failure of the complainant to prove the guilt is not even proved by the evidences on record as required by section 7 & 13 of the Act. Hence, the appellant should not be subjected to any further trauma for the offence, which we has never commit and the conviction order be quashed. 1.8 That, where the prosecution case was one intergraded story, which the trial Court has accepted and convicted the appellant u/s 161 IPC and section 5 (1) (d) r/w section 5 (2) of P.C. Act 1947. The HC in appeal although disbelieved the vital part of the prosecution story, affirmed the order of the conviction. It was held that although there were highly suspicious against the appellant, the HC has disbelieved on the essential part of the prosecution case on which the other part was depended should not have upheld the conviction of the appellant11. 1.9 In the case of State of MP v. J.B.Singh12 the responded police officer was convicted by the special judge for offence u/s 161 IPC and section 5 (2) r/w 5 (1) (d) of the P.C. Act, 1947 on the allegation that he demanded and accepted a sum of rupees 200 for the complainant, and the amount was recovered from the rest room at the police station. On appeal the HC set aside the conviction and recorded an order of acquittal. On appeal by the state the SC confirmed the acquittal judgment of the HC on the ground that the necessary ingredients of the offence were not established.

10 11

Jaswant Singh v. State of Punjab, AIR 1973 SC 707 Haridev Sharma v. State (Delhi Administration) AIR 1978 SC 1489 12 2000 CrLJ 4591 SC

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Mr.Vrushal Sinha v. Bhaskar Sehagal

1.10 That in the present case also, all the major ingredients of offence are absent and also the story of prosecution is reliable to the extent that the complainant has made construction of some houses and had also done some dewatering work and for this the bill of Rs. 39,000 was pending in the department and recommended by the executive engineer, but the contention of the respondent that for sanctioning of aforesaid bill, there was demand of Rs. 10,000 from the appellant is totally false and is only conspiracy against the appellant for the reason of personal enmity of the complainant for the appellant.

Issue- 2: Whether or not on the facts and circumstances of the case, the cause for complainant was the personal enmity between the two? 2.1 That the complainant Mr. Bhaskar Sehagal is a contractor by occupation and has been black listed by the appellant, due to this reason a feeling of enmity is developed and in order to take revenge a false report has been lodged against the appellant and has planted the money in the drawer of the appellant and gave a concrete shape to the conspiracy by charging an innocent, devoted and honest public servant for the charge of corruption u/s. 7, 13(1)(d) r/w s. 13 (2) of the Act. 2.2 Where a public servant is charged with the offence of acceptance of bribe, and the marked currency notes which are used for the purpose of the trap are treated with phenolphthalein powder so that the handling of the notes by the public servant can be detected by the chemical process and witness secured by the vigilance officers to witness the giving of the notes to the recovery of the same from the public servant are not local and independent person, but are interested person on inimical terms with the public servant the charge can-not be said to have been established. In T. Subramaniam v. State of T.N13, where the appellant
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2006 (II) LSCT 201

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Mr.Vrushal Sinha v. Bhaskar Sehagal

was charged u/s. 5 of P.C. Act, 1947, the Honble SC held that mere receipt of Rs. 200 by appellant from the PW-1, will not be sufficient to fasten guilt u/s 5 (1) (a) or 5 (1) (d) of the PC Act 1947, in the absence of any evidence of demand and acceptance of amount as illegal gratification. Here the cause for the complaint was also the personal enmity of the complainant for the appellant and the court held that if the reason explained and explanation given is probable and reasonable then the appellant had to be acquitted. 2.3 Where the evidence disclosed that the complainant was inimical towards the accused SubInspector of Police as the brother of the complainant was arrested twice on earlier occasions by the accused, the evidence of the complainant regarding demand and acceptance of bribe lacked corroboration by independent and disinterested witnesses, it was held that the accused was entitled to be acquitted14. 2.4 In State of U.P. v. Ram Asrey15, where, the accused Tahsildar was prosecuted for heavy demanded and accepted a sum of Rs 15 /- as illegal gratification for issuing a certificate in favour of a complainant to the effect that he belongs to a backward class. He contended that he was falsely implicated since he had made a complaint against the person involved in a movement organized by the Communist Party against the Tahsil Staff and the complainant was one of the persons, who was arrested on his complaint. The trial court convicted the accused, but the HC acquitted him. On appeal to the SC, the SC also upheld the decision of HC and acquitted appellant. In the present case also the base of litigation arise from inimical terms of complainant toward the appellant and nothing else, and such litigations should not be encouraged and same be quashed.

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Ram Narayan Yadav v. State of U.P., 1990 CrLJ 937 UP 1990 SCC (Cri) 603

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Mr.Vrushal Sinha v. Bhaskar Sehagal

2.5 Where, accused, revenue patwari was trapped in which the panch witnesses were found to be inimical towards the accused. For this reason, among others the HC held that the order of conviction and sentence of the trial court is not sustainable16. Mere recovery of tainted money from the accused supported by the evidence of police is not sufficient to sustain the conviction where the evidence showed that there is suspicion about demand of bribe coupled with other circumstances that the complainant and his son were inimically disposed against the accused17. Also in State of A.P. v/s T. Venkateswara Rao18, where the accused at the instance of the municipal engineer who had enmity with the accused and had reason to join hands with the said contractor / complainant and hence his evidence cannot be relied. The HC also come to the conclusion that the occasion of demanding bribe on 14-04-1987 or 2404-1987 did not arise because though there was only one tender for the work advertised by the municipality, but the same had not been accepted and the agreement having not been executed, the stage of awarding the work order had not reached and therefore could not have been a demand for any bribe and in view of the improbability in accepting the bribe, HC gave the benefit of doubt to the accused and allowed the appeal. In SC also, found that there is no merit in the appeal and dismissed the same. Therefore, the order of conviction of accused should be quashed / set aside.

Issue3: Whether or not on the facts and circumstances of the case, the Housing Commissioner possesses power to influence the complainant in the matter of the pending bills?
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Dhanpat Rai v. State of Haryana 1993 (1) Crimes 1158 (P & H) M .S. Ramnathan v. State 1996 CrLJ 2273 (Mad) 18 2004 (1) Crimes 437 (SC)

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Mr.Vrushal Sinha v. Bhaskar Sehagal

3.1 That it is very much evident from the facts of the present case that the file which was pending before the Housing Commissioner in the matter of construction bills, has been sent by him with remark 2 days before the trap incident. Therefore the alleged bill file was not with him, when the trap was organized. So, when the file was not with the appellant and has been sent by him and the matter is not within the ambit of his power how can he demand bribe from the complaint? The only bare fact stand, that the complainant is abusing the judicial process by false report, frivolous evidences and baseless arguments and highly improbable contentions. Further in a cantina of judicial pronouncement, under such factual matrix, the accused is liable to be acquitted and petition be dismissed, the authorities relied upon in respect of this contention are discussed in the following paras:3.2 In State of M.P. v. Vishnu Prasad Babele19, the accused who was working as Reader to Executive Magistrate, allegedly accepted bribe for releasing on bail was acquitted on ground that prosecution failed to demand of bribe and discrepancies noticed in testimony of prosecution witness and due to the statement of the said magistrate that the order of release was already passed two days prior to the date of trap. 3.3 In Suryahban v. State of Maharashtra20, where the accused Patwari, a public servant is alleged to have demanded and accepted amount from complainant as illegal gratification for making entries in mutation register in favour of complainant party and there was documentary evidence showing that the said mutation was already effected by accused in the knowledge of complainant and his brothers and the same was certified and approved by the Revenue Inspector on the date prior to making of alleged demand of bribe and also there was no independent evidence about the demand of bribe by the accused, it cannot be said that the

19 20

1991 CrLJ 1983 1995 (1) CrLJ 107 (Bom)

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accused has obtained the said by using some corrupt or illegal means or otherwise abusing his official position as a public servant for effecting entries in the mutation register and therefore, his conviction u/s. 13(1)(d) r/w s. 13(2) would not be proper. Moreover the presumption drawn u/s. 20 of the Act in favour of prosecution for the offence of bribery has also been rebutted, dislodged and displaced by accused and therefore, conviction of accused for the offence u/s. 7 of the Act would also not be sustainable. 3.4 In Yeshwant v. State of Maharashtra21, in which the accused was acquitted by the HC as there were disappearances in the evidence of the complainant and the panch witness and the panch witness admitted in his evidence that the complainant was a court bird and as such he would have known that it was beyond the power of the accused who was a court cleark to demand an amount of Rs. 2000 from complainant as he had already executed the bond and also furnished the securities. Where from the prosecution witness it is proved that there was no work pending with the accused appellant. Therefore he could not have given any money as bribe. The prosecution story also suffers from contradictions, held that the prosecution has not been able to prove its case and the accused appellant deserves acquittal22. Further the reliance has been place on the Niranjan Bharti v. State of Orrisa23 and State of U.P. v. Jagdish Singh Malhotra24 Therefore the conviction order of appellant should be quashed/ set aside. Issue-4: Whether or not on the facts and circumstances of the case, the recovery of the amount from the accused is enough to charge the offence u/s. 7, 13(1)(d) r/w s. 13(2) of P.C. Act, 1988 ?

21 22

1996 (2) Crimes 323 (Bom) Kanhaiyalal v. State of Rajasthan, 1998 Cr.LJ 3155 (Raj) 23 2004 CrLJ NOC 100 (Orrisa) 24 2001 (10) SCC 215

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4.1 That, mere recovery of the amount from the accused is not enough to charge him u/s 7, 13 (1) (d) r/w Sec 13 (2) of the Act. There must be some other substantive evidence which must prove the story of prosecution beyond the reasonable doubt, that it is that amount which has been accepted by the accused to show favour or disfavour and the amount or valuable thing or consideration has been taken with consenting mind. But here in the present case the only fact is the recovery of money, which is also planted by the complainant, when he was in bathroom and has been falsely implicated under the offence of bribery. From the past three issues it has been established that no such offence has been made and nothing but the false and baseless claims of the respondent to which the court has countered. The above contention will further strengthen the position of appellant in this case.

4.2 Phenolphthalein test negative :- Further, the phenolphthalein test which was done after the recovery of planted money, a test which is major proof and sine-quo-non in the trapped incident is also negative, showing the appellant was never in the contact of the planted money. If the amount has been received or accepted by the appellant then test must be positive and here it is not so. This test further strengthens the position of the appellant in respect of the contention that he is falsely implicated in the case. The above submissions are supported by the following authorities. 4.3 The mere recovery of the money does not exclude the possibility that the accused was an innocent recipient of the same and the prosecution either fails or succeed according as it is proved that the notes were paid as bribe or not 25. The recovery of the currency notes from the person of the accused is an important link in proving the case of prosecution, for offence u/s

25

King v. S. N. Singh Rai AIR 1951 Orissa, also in Ram Singh Badar Singh v. State AIR 1960 Guj 7, P. K. Sabbaiah v. State AIR 1952 Tripura 9, Dwarka Prasad Kalyan Prasad v. State AIR 1955 Noc 4867 (MB)

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161 IPC and Sec 5 (2) of P.C. Act 1947. If the recovery becomes doubtful no conviction can be maintained26. Where the trap laid is for a public servant, it is desirable that the marked currency notes, which are used for the purpose of trap are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be determined by chemical processes and the court does not have to be depend on oral evidence which is sometime of a dubious character for the purpose of deciding the fait of the public servant27 . 4.4 That, to sustain conviction u/s 161 of IPC and u/s 5 (2) of P.C.Act 1947, it is not sufficient for the prosecution to prove the trap incident alone. But the prosecution should prove all the vital part of the prosecution story, on which the trap incident depends. The trap incident alone does not stand by itself. The vital parts are depended upon each other and the prosecution is bound to prove all vital parts. Some of the vital parts have been disbelieved, than the trap incident though proved does not stand by itself and cannot therefore form the basis of conviction28. Where a serious doubt as to whether the court of the accused from which the incrementing notes were recovered was actually worn by him or lying at the spot. In these circumstances it could not be said that prosecution had proved the guilt of the accused beyond reasonable doubt. Therefore the accused is entitled to benefit of doubt and conviction was not sustainable29. 4.5 The possession of amount of bribe must be active possession i.e. possession with the knowledge, if such active possession is not there then any person who is in the inimical towards the public servant may put the amount without the knowledge of the public servant and may signal the trap team to search the public servant and if alleged amount found within
26 27

State v. Harprasad Sharma, AIR 1958 All 334 Raghubir Singh v. State of Punjab AIR 1976 SC 19 28 Khursid Khan v. State of U.P. 1980 Mlj (Crl) 625 also Guru Pratap Singh v. State of Punjab 1984 (2) Crimes 139 29 Resham Singh v. State 1981 Cr.LJ 1691 (P & H)

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the vicinity of public servant, under such circumstances how can a public servant be charged for the offence of the bribery? When he has no knowledge of the amount recovered which has been alleged as his illegal gratification. Such allegation toward the public servant hampers the growth of nations also, as because of such false charges the true spirit of public service has been demoralized and lowers the efficiency of public servant as he suffers a mental harassment and also defamatory statement from staff and public at large. 4.6 In Salim Khan Sardar Khan v. State of Gujrat30, a case where the police constable was prosecuted were having accepted Rs 50 /- in the form of 5 10 /- Rs currency notes in a trap, for a prohibition area near the bus stand. The trial court believing the possibility of planting acquitted the accused. While the HC reversed the acquittal in appeal, being of the view that the accused, a police man in service would have known if the currency notes were inserted into his pocket by some other persons. While reversing this finding of HC and acquitting the accused the SC observed very clever people who are young and agile or often victimized by pick pockets and only when their valuable have been lost the fact is noticed by them. The process here is the reversible one instead of pocket being picked; currency notes have been inserted into. 4.7 The above observations are relevant in the fact of the present case also. In the present case the prosecution suffers from so many serious infirmities as pointed out above that the same lends support to the defense plea that the notes were planted31. Further the reliance has been placed on the following authorities:1. Ayyasami v. State of T.N.32 2. Aswini Kumar v. State of Punjub33
30 31

1985 Cr.LJ 1901 Niranjan Khatua v. State of Orissa, 199 Cr.LJ 2790 (Ori) 32 AIR 1992 SC 644 33 I 1994 CCR 395 P & H

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3. Lakshmi Narayan Goyel v. State of Rajasthan34 4. Ved Prakash v. State of H.P.35 5. Chandrabhan v. State (C.B.I.)36 6. Ramswaroop Rathore v. State of M.P.37 7. Purushothom v. State38 8. In re Paul satyaraj39 9. G. D. Ramaswamy v. state of Karnataka40 10. Killiram v. State of Rajashthan41 11. Ram Singh Badar Singh v. State42 12. State of T.N. v. Krishnan43 13. State of U.P. v. Jagdish Singh Malhotra44 14. K. Narsinhachari v. State Inspector of Police, Anti-Corruption Bureau45 15. Shyamlal Sharma v. King Empror46 Therefore, in the light of above authorities and submission made on behalf of appellant the order of acquittal be quashed or set aside.

34 35

1997 (3) Crimes 541 (Raj) II 1997 CCR 627 (Raj) 36 1998 Cr.LJ 6447 (Del) 37 2000 Cr.LJ 1882 (M.P.) 38 1969 Mad LW (Crl) 45 39 1969 Mad LW (Crl) 72 40 2004 CrLJ 3584 (Kar) 41 1985 Cr.LJ 504 42 AIR 1960 Guj 7 43 IV 2000 CCR 105 SC 44 2001 (10) SCC 215 45 2003 Cr.lj 3315 46 AIR 1949 All 483

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PRAYER It is, therefore, humbly prayed that in the light of issues raised, arguments advanced and authorities citied, in the interest of justice this criminal appeal may kindly be allowed and a judgement for the following relief may kindly be passed in favour of the appellant : 1. that, the order of conviction of the appellant by the learned special judge be quashed / set aside; 2. any other relief which may be deemed just or may be necessary in facts and circumstances of the case.

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Mr.Vrushal Sinha v. Bhaskar Sehagal

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Indore Date : 23-03-2007 / 24-03-2007

Submitted by Council for the appellant

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