GIRDHARI SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Aggrieved by the order dated 23.10.2010, passed by the Special Judge, Designated Court (Empowered to Try Cases under Prevention of Corruption Act), Ajmer, whereby the learned Judge has framed charges against the petitioner for offence under Section 7, 13(1)(d), (2) of Prevention of Corruption Act, 1988 ('the Act', for short), the petitioner has approached this Corrt.

(2.) Mr. J.P. Gupta, the learned counsel for the petitioner, has raised the following contentions before this Court : firstly, no case is made out under Sections 7 and 13(1)(d) of the Act. Secondly, according to the complainant, the petitioner had demanded illegal gratification for accepting the bail / filling of the bail bonds. Whereas the FIR was lodged on 17.10.2006, the bail bonds were submitted on 16.10.2006 itself. Therefore, on 17.10.2006 no work was pending with the petitioner. Thus, there was no reason for the petitioner to demand any money on 17.10.2006. Thirdly, according to the prosecution, there is a taped conversation available. But the conversation does not show that a demand was aver made by the petitioner from the complainant. Fourthly, according to the prosecution, the money was not recovered from the possession of the petitioner. Instead, it was recovered from an alcove of the room in which the petitioner has his office. Moreover, the said office was being used by other police personnel. Thus, there is no evidence that the money was demanded and accepted by the petitioner. Fifthly, since the money was not physically accepted by the petitioner, the offence under Section 7 of the Act is not made out. Sixthly, no amount was obtained. Thus, the offence under Section 13(1)(d) of the Act is also not made out. Lastly, relying on the case of N.S. Kothari (Dr.) Vs. State of Rajasthan,2004 2 CrLR 948, the learned counsel has contended that there has to be an evidence of demand and acceptance before a charge under Section 13(1)(d) of the Act could be framed. Since there is no such evidence available on record, the charge for offence under Section 13(1)(d) of the Act could not be framed by the trial court.

(3.) On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has strenuously argued that the conversation was taped between the complainant and the petitioner, where the petitioner had demanded illegal gratification from the complainant; the transcript of the conversation is readily available in the charge-sheet. Secondly, Manish, an independent witness, in his statement recorded under Section 161 Cr.P.C., has clearly stated that on 19.10.2006, he was on duty when the complainant came and met the petitioner. Subsequently, both of them went into the petitioner's office. They stayed for some time. Thereafter, while the petitioner left, few other persons came and introduced themselves as officers of the ACB Department. They asked about the petitioner; once they were told that the petitioner had gone to the court, they went to the court. According to the complainant, when he had met the petitioner in his office, he told the complainant to put the money behind the picture of Lord Hanuman in the alcove. According to Nawal Kishore, the officers who conducted the raid, Rs.800/-, which were given to the complainant, were recovered from the alcove in the petitioner's office. Thus, according to the learned Public Prosecutor, the demand and acceptance clearly exist. Moreover, when the petitioner was confronted in the court by Mr. Nawal Kishore about the acceptance of illegal gratification, initially the petitioner denied having taken any money from the complainant. However, subsequently, he claimed that he had borrowed Rs.700/- five to seven days back from the complainant, which the complainant had returned. When Nawal Kishore asked the complainant about this statement, immediately the complainant denied the said statement. The complainant told Nawal Kishore that in accordance with the direction given by the petitioner, he had left the money in the alcove. Subsequently, the money was recovered from the alcove. Therefore, according to the learned Public Prosecutor, a grave suspicion is created for the trial court to frame the charges for the aforementioned offences.