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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1839  OF 2012 (Arising out of SLP (Crl.) No. 23 of 2012

Rakesh Kapoor         .... Appellant(s)

Versus

State of Himachal Pradesh             .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the final judgment and  

order  dated  08.09.2011  passed  by  the  High  Court  of  

Himachal Pradesh at Shimla in Criminal Appeal No. 713 of  

2008  whereby  the  High  Court  while  partly  allowing  the  

appeal filed by the appellant herein set aside the conviction  

under Section 7 of the Prevention of Corruption Act, 1988 (for  

short ‘the P.C. Act’) and upheld the conviction and sentence  

awarded by the trial Court under Section 13(2) of the P.C.  

Act.

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3) Brief facts:

(a) In  January,  2003,  the  appellant  had  been  posted  as  

Divisional Tourism Development Officer,  Dharamshala, H.P.  

His duty includes issuing permits for running of buildings as  

guest houses/hotels, by registering them as such and fixing  

the tariff for different types of rooms/accommodation in the  

said buildings.   

(b) One Nirwan Singh is having a Tea Orchard and a house  

in Cheelgari in Dharamshala.  He executed a general power  

of attorney in favour of the complainant - Sukhjit Singh Sidhu  

for managing his aforesaid properties.  He renovated the said  

house  and  converted  and  converted  it  into  a  hotel  and  

sought permission for registration and for fixing of tariff for  

the same from the appellant herein.   

(c) On  28.04.2003,  the  appellant  officially  inspected  the  

site  of  the  hotel.   After  inspection,  the  appellant  found  

everything in order and asked the complainant to go ahead  

with  the  running  of  the  hotel.  The  complainant  also  

requested him to give official permission to run the same.  

On 02.05.2003, the appellant recorded a note for registration  2

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of the same fixing tariff for different rooms. However, formal  

letter  of registration and order of fixation of tariff had not  

been issued.   

(d) It is the case of the prosecution that on 04.05.2003, the  

complainant received a telephonic call from the appellant at  

about 4.00 p.m. informing him that his case for registration  

of hotel and fixation of tariff had been cleared and that he  

could collect the registration certificate on the next day by  

paying him Rs. 10,000/-.   

(e) The complainant being an Ex-serviceman not inclined to  

give bribe and therefore, he shared this conversation with his  

friend  Ashwani  Bhatia  (PW-3)  and  on  05.05.2003,  both  of  

them went to the Police Station, A.C. Zone, Dharamshala and  

lodged a complaint.   They carried with them ten currency  

notes of the denomination of Rs.1,000/- each and produced  

the  same  before  the  police.   The  currency  notes  of  Rs.  

1,000/- each amounting to Rs.10,000/- were treated by the  

Vigilance  Police  with  phenolphthalein  powder  and  their  

numbers  were  noted  down  and  handed  over  to  the  

complainant asking him to give the same to the accused on  

demand with a direction to not to tamper with the same in  3

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any manner.  The police asked Ashwani Bhatia (PW-3) to act  

as a shadow witness and requested him to go to the office of  

the appellant with the complainant and give signal to them  

as and when the bribe money stood paid.   

(f) Thereafter, the members of the raiding party (Vigilance  

Police) took shelter near the office of the accused.  At about  

6.55 p.m., after  receiving signal from the shadow witness,  

the raiding party caught hold of the appellant.  The appellant  

was asked to produce the currency notes taken by him as  

bribe and the same had been taken out from the right pocket  

of  his  pant.   The number  of  the  currency notes  were got  

tallied as the same which were shown to the police earlier.  

The appellant was arrested and grounds of arrest intimated  

to him.   The case was committed to the Court  of Special  

Judge, Kangra at Dharamshala.   

(g) Vide judgment dated 16.10.2008, the Special Judge, on  

perusal of the record, held the appellant guilty and convicted  

him for the offences punishable under Sections 7 and 13(2)  

of the P.C. Act.   Vide order dated 03.11.2008, the Special  

Judge  sentenced  the  appellant  to  undergo  Rigorous  

Imprisonment  (RI)  for  two  years  and  to  pay  a  fine  of  4

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Rs.10,000/-,  in  default,  to  further  undergo  simple  

imprisonment for 6 months.   

(h) Being  aggrieved,  the  appellant  preferred  an  appeal  

being Criminal Appeal No. 713 of 2008 before the High Court  

of  Himachal  Pradesh.    The  High  Court,  by  impugned  

judgment dated 08.09.2011, partly allowed the appeal and  

set aside the conviction under Section 7 of the P.C. Act and  

confirmed the same under Section 13(2) of the said Act.  

(i) Aggrieved  by  the  said  order  of  the  High  Court,  the  

appellant  preferred  this  appeal  by  way  of  special  leave  

petition.

4) Heard Mr. Parag P. Tripathi, learned senior counsel for  

the appellant and Ms. Kiran Bala Sahay, learned counsel for  

the respondent-State.

5) Mr. Tripathi,  learned senior counsel  for  the appellant,  

after taking us through all the materials, the decision of the  

trial  Judge and the reasoning of the High Court  submitted  

that conviction of the appellant under Section 13(2) of the  

P.C. Act is unsustainable in law since his conviction under  

Section 7 has been set aside by the High Court.  He further  

submitted  that  inasmuch as  Section 13(2)  of  the  P.C.  Act  5

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merely  provides  for  punishment  for  criminal  misconduct  

which is defined in Section 13(1), the substantive provision  

applicable in the case is Section 13(1)(a) of the P.C. Act.  He  

further  pointed  out  that  Section  13(1)(a)  was  held  

inapplicable  since  the  offence  under  Section  7  was  not  

proved, hence, there cannot be any conviction under Section  

13(2) without there being a conviction under Section 7 of the  

Act.   He  further  submitted  that  in  the  absence  of  any  

evidence for the demand of bribe, the conviction is liable to  

be set aside.  He also pointed out that though according to  

the prosecution, a demand was made to Shri S.S. Sidhu (PW-

1), the complainant, over mobile phone, no call record was  

produced and reliance based on the contradictory statement  

of Shri Dharam Chand (PW-18), I.O., cannot be accepted.  He  

further  submitted  that  since  the  order,  viz.,  registration  

certificate  was made ready before the alleged demand of  

bribe on 02.05.2003, the entire case of the prosecution for  

demand and acceptance does not hold good.  On the other  

hand, Ms. Kiran Bala Sahay, learned counsel for the State  

supported the case of the prosecution and, according to her,  

the High Court was fully justified in convicting the appellant.   6

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6) We have carefully considered the rival contentions and  

perused all the relevant materials.  

7) At  the foremost,  in  order  to  understand the stand of  

both the parties, it is useful to refer the charge sheet which  

reads as under:

“IN THE COURT OF SH. C.B. BAROWALIA, SPECIAL JUDGE,  KANGRA AT DHARAMSHALA

STATE VS. RAKESH KAPOOR

CHARGE SHEET  CC2/05

I,  C.B.  Barowalia,  Special  Judge,  Kangra  at  Dharamshala  do  hereby  charge  you  accused  Rakesh  Kapoor son of Shri Joginder Paul (HAS Officer), resident of  H.No. 702, Old Chari Road, Dharamshala, District Kangra  as under:-

That  on 05.05.2003,  at  about  6.55 p.m.  while  you  were posted as Divisional Tourism Development Officer at  Dharamshala  and  being  a  Public  Servant  obtained  Rs.10,000/-  for  the  registration  of  Hotel  of  Shri  N.S.  Gill  which was your official duty as a motive for doing the said  official act and thereby committed an offence punishable  under Section 7 of the Prevention of Corruption Act, 1988  and within my cognizance.  

That  on  the  above  said  date,  time and  place  you  being  Divisional  Tourism  Development  Officer  at  Dharamshala,  District  Kangra  accepted a  gratification  of  Rs.10,000/-  other  than  legal  remuneration  from  the  complainant  for  registration  of  his  Hotel  and  thus  you  committed the offence of criminal misconduct punishable  under Section 13(2) of  the Prevention of  Corruption Act,  1988 and within my cognizance.   

And I hereby direct that you be tried by this Court  for the aforesaid charges.

Sd/- Special Judge

Kangra at Dharamshala”

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A reading of the charge sheet shows that the claim made by  

the prosecution in paras 2 and 3 is one and the same.  It is  

not  in  dispute  that  the  High  Court  on appreciation of  the  

evidence led in by the prosecution and the stand taken by  

the  defence  exonerated  the  appellant  in  respect  of  the  

offence punishable under Section 7 of the P.C Act.  Now, the  

moot question for consideration is whether in the absence of  

Section  7,  conviction  under  Section  13(2)  is  permissible,  

particularly, when there is no reference to Section 13(1)(a) of  

the  P.C.  Act.   It  is  not  in  dispute  that  Section 13(2)  only  

speaks  about  punishment  for  committing  criminal  

misconduct.  Section 13(2) reads thus:  

“13.  Criminal  misconduct  by  a  public  servant.- (1)  xxx xxx (2) Any public servant who commits criminal misconduct  shall  be punishable with imprisonment  for  a term which  shall be not less than one year but which may extend to  seven years and shall also be liable to fine.”

We have already extracted the charge sheet which contains  

the offence under Sections 7 and 13(2) of the P.C. Act. The  

relevant  substantive  provision  is  Section  13(1)(a)  which  

reads thus:

“13. Criminal misconduct by a public servant.- (1) A  public  servant  is  said to  commit  the offence of  criminal  misconduct,-

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(a) if he habitually accepts or obtains or agrees to accept  or attempts to obtain from any person for himself or for  any  other  person  any  gratification  other  than  legal  remuneration as a motive or reward such as is mentioned  in section 7; or     xxx xxx”

In the light of the language used in Section 13(1)(a) and in  

view of the conclusion by the High Court that the offence  

under Section 7 has not made out, the prosecution has not  

explained how Section 13(1)(a) is applicable.  In this regard,  

it  is  useful  to  refer  the  decision  of  this  Court  in  Joseph  

Kurian Philip Jose vs. State of Kerala, (1994) 6 SCC 535.  

The  case  relates  to  popularly  known  as  ‘Punalur  Liquor  

Tragedy’ in Kerala in which certain persons died and others  

received  injuries  due  to  consumption  of  poisonous  

adulterated  arrack,  ethyl  alcohol  adulterated  with  methyl  

alcohol.  After investigation, a case under Section 272 IPC  

and Section 57(a) of the Kerala Abkari Act was registered.  

After trial, A-1 was convicted and sentenced under Sections  

272 and 328 of the IPC along with the relevant provisions of  

the  Kerala  Abkari  Act  and  the  High  Court  confirmed  the  

same, who filed an appeal before this Court.  The High Court,  

however, set aside the similar conviction and sentence of A-4  

recorded by the Court of Sessions and instead convicted him  9

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under  Section  109  IPC  for  having  abetted  commission  of  

offence  punishable  under  Sections  272  and  328  IPC  

whereunder,  without  specificity,  he  was  awarded  rigorous  

imprisonment for two years.  The said order was also under  

challenge before this Court.  In para 13, this Court has held  

as under:

“…………Going by the High Court findings, Section 109 IPC  could in no case be attracted and more so without charge  to that effect put to A-4 to plead at the trial.  Section 109  IPC is by itself an offence though punishable in the context  of  other  offences.   A-4  suffered  a  trial  for  substantive  offences under the IPC and the Abkari Act.  When his direct  involvement in these crimes could not be established, it is  difficult to uphold the view of the High Court that he could  lopsidedly  be  taken  to  have  answered  the  charge  of  abetment and convicted on that basis.  There would, as is  plain, be serious miscarriage of justice to the accused in  causing great prejudice to his defence.  The roles of the  perpetrator  and  the  abettor  of  the  crime  are  distinct,  standing apart from each other.  The High Court was thus  in error in employing Section 109 IPC to hold A-4 guilty.  We  thus  set  aside  the  conviction  of  A-4  and  order  his  acquittal on all charges”.  

8) In  Wakil  Yadav  and  Another vs.  State  of  Bihar,  

(2000) 10 SCC 500, this Court held that when the appellant  

was charged and convicted along with others for offences   

under Section 302 read with Section 149 IPC, the High Court   

cannot convict him for the offence under Section 302 read   

with Section 109 in appeal.  In that case, it is undisputed that   

no charge was framed against the appellant with the aid of   

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Section 109.  As in Joseph Kurian (supra), here again, this  

Court held that  Section 109 IPC is a distinct offence.  In this  

way, this Court held that “the appellant having faced trial for   

being a member of an unlawful assembly which achieved the  

common object of killing the deceased, could in no event be   

substitutedly  convicted  for  offence  under  Section  302  IPC  

with the aid of Section 109 IPC.  There was obviously thus not  

only a legal flaw but also a great prejudice to the appellant in   

projecting his defence. He, on such error committed by the   

High Court, has rightly earned his acquittal….” By saying so,  

this Court allowed the appeal of the accused and set aside  

the conviction and sentence imposed on him.   

9) The  criminal  misconduct  which  is  defined  in  Section  

13(1)(a)  has  not  been included in  the  charge.   In  such  a  

circumstance, the accused lost an important opportunity to  

defend himself,  particularly,  when he was acquitted under  

Section 7 of the Act.  By applying the ratio rendered in the  

above decisions and in the light  of the undisputed factual  

position that conviction of the appellant under Section 7 has  

been set aside by the High Court and in the absence of any  

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charge under Section 13(1)(a), the conviction under Section  

13(2) cannot be sustained.  

10) Coming to the next argument that there was absolutely  

no demand for bribe and in the absence of such claim by the  

accused duly established by the prosecution, the conviction  

cannot be sustained.  In support of the above claim, learned  

counsel for the appellant relied on the decision of this Court  

in Banarsi Dass vs. State of Haryana, (2010) 4 SCC 450.  

It was an appeal under Article 136 of the Constitution of India  

filed  against  the  judgment  and  order  of  conviction  dated  

20.11.2002 passed by the learned single Judge of the High  

Court of Punjab and Haryana at Chandigarh.  In that case, it  

was contended before this Court that there is no evidence to  

prove demand and voluntary acceptance of the alleged bribe  

so  as  to  attract  the  offence  under  Section  5(2)  of  the  

Prevention of Corruption Act, 1947.  The other contentions  

were  also  raised  regarding  merits  with  which  we  are  not  

concerned.   The  accused  was  charged  for  the  offence  

punishable  under  Section 5(2)  of the  1947 Act  as  well  as  

Section 161 (since repealed) of the IPC. In para 23, this Court  

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held that “to constitute an offence under Section 161 IPC, it   

is  necessary  for  the  prosecution  to  prove  that  there  was   

demand of money and the same was voluntarily accepted by   

the accused”.  It was further held that “similarly in terms of  

Section 5(1)(d) of the Act, the demand and acceptance of   

the  money  for  doing  a  favour  in  discharge  of  his  official   

duties is sine qua non to the conviction of the accused”.  In  

para  25,  this  Court  quoted the decision rendered in  C.M.  

Girish Babu vs. CBI, (2009) 3 SCC 779 and held that mere  

recovery of money from the accused by itself is not enough   

in  the  absence  of  substantive  evidence  of  demand  and   

acceptance.  In the sama para, a reference was also made to  

Suraj  Mal vs.  State  (Delhi  Admn.) (1979)  4  SCC  725  

wherein  this  Court  took  the  view  that  mere  recovery  of  

tainted money from the circumstances under which it is paid  

is not sufficient to convict the accused when the substantive  

evidence in the case is not reliable.  This Court further held  

that mere recovery by itself cannot prove the charge of the  

prosecution  against  the  accused  in  the  absence  of  any  

evidence  to  prove  payment  of  bribe  or  to  show that  the  

accused  voluntarily  accepted  the  money knowing it  to  be  13

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bribe.  After underlying the above principles, and noting that  

2  prosecution  witnesses  turned  hostile,  while  giving  the  

benefit  of  doubt  on technical  ground to  the  accused,  this  

Court,  set  aside  the  judgment  of  the  High  Court  and  

acquitted the accused of both the charges i.e. under Section  

161 IPC and under Section 5(2) of the 1947 Act.  

11) In the case on hand, though prosecution heavily relied  

on the evidence of PW-1, the complainant that the demand  

was  made  to  him over  mobile  phone,  admittedly  the  call  

details have not been summoned. No doubt, the statement  

of  PW-1,  according  to  the  prosecution  is  corroborated  by  

Ashwani Bhatia (PW-3) who stated that he overheard PW-1  

saying that he had brought the money, when the latter went  

to the office of the appellant in the evening of 05.05.2003.  

Interestingly,  the  I.O.  who  was  examined  as  PW-18  has  

mentioned that PW-1 received the demand from the accused  

over  landline  and,  hence,  he  could  not  secure  those  call  

details.  Whatever may be the reason, the fact remains that  

except the oral testimony of PWs 1 and 3, there is no other  

proof in respect of the demand of bribe money and the I.O.  

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could not collect the call details as stated by PW-1 from the  

department concerned.  Accordingly, learned senior counsel  

for  the  appellant  is  right  in  contending  that  there  is  no  

material/evidence for the demand of bribe.  In the light of the  

categorical  enunciation  in  Banarsi  Dass  (supra),  in  the  

absence  of  the  demand  and  acceptance,  the  accused  is  

entitled to the benefit of doubt.  In addition to the same, in  

the  case  on  hand,  even  the  official  witness,  Shri  Madan  

Singh-who helped in  the  search of the  accused-  Municipal  

Commissioner, was examined as PW-14 but did not support  

the prosecution case and turned hostile.

12) Another  important  aspect  which  is  in  favour  of  the  

appellant accused is that the order, namely, granting licence  

in favour of PW-1 – the complainant was made ready before  

the  alleged  occurrence  i.e.  on  02.05.2003.   In  fact,  the  

original order was available on the table and the same was in  

the hands of PW-1.  Admittedly, he did not hand over the  

original to the I.O. and his only explanation was that he kept  

it  under  his  custody  to  continue  his  business.   As  rightly  

pointed out, when the order itself was ready and available  

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that too in the hands of the complainant, the demand of the  

accused as claimed by the prosecution is highly improbable.  

This aspect has also not been properly explained.  

13) In the light of the above discussion and in view of the  

lacunae  in  the  prosecution  case,  by  giving  the  benefit  of  

doubt to the accused, we hereby set aside the judgment of  

the High Court and the trial Court and acquit the accused of  

the remaining offence under Section 13(2) of the P.C. Act.  

Since the appellant was ordered to be released on bail  on  

13.02.2012  by  this  Court,  the  bail  bonds  shall  stand  

discharged.  The appeal is allowed.             

...…………….…………………………J.               (P. SATHASIVAM)                                 

..…....…………………………………J.        (RANJAN GOGOI)                         

NEW DELHI; NOVEMBER 22, 2012.  

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