DELHI HIGH COURT
Ashutosh Kumar, J.
Jagbir Singh —Appellant
versus
Central Bureau of Investigation —Respondent
Crl.A.977/2015
Delivered on 10.10.2017

IMPORTANT POINT
For establishment the offence u/s 13(2) and 13(1)(d) of Prevention of Corruption Act, the ingredients of the public servant having abused his position and by abusing that position he has obtained for himself or any other person any valuable thing or pecuniary advantage, has to be proved.

Headnote:Prevention of Corruption Act, 1988—Section 13(1)(d) r/w 13(2)—Indian Penal Code, 1860—Sections 218 and 417—Preliminary enquiry directed by High Court against engineers and officials of MCD who by their negligence or connivance had caused large scale unauthorised construction—FIR was registered against appellant who was Junior Engineer (Building) MCD and Executive Engineer and against unauthorised construction site a Motel owner—Earlier appellant had got FIR registered alleging unauthorised construction at Motel site and show cause had been issued for demolition and removal of unauthorised construction—Appellant claimed to have carried out demolition of some part of unauthorised construction at Motel site and charges for demolition process were shown recovered from Motel site management and report to that effect was submitted by appellant—Officials of MCD Head quarters and Building Department of Zone did not confirm said demolition—Conviction of appellant by trial court—Appeal—If accused had submitted a false report it ought to have been with approval of superior staff of MCD or else the report would not have been accepted—CBI had not sent up the management of Motel for facing trial—If an act said to have been unauthorisedly done and it did not give benefit to the person, then said act could not be stated to be for any gainful acquisition for wrong doer—If Motel was not benefited and was not put on trial, there would not be justification for trying and convicting appellant who allegedly tried to help Motel—No evidence was in support of any monetary gain by appellant at the instance of management of Motel—Conviction was liable to be set aside.

       Held: From the conspectus of the entire records, it appears that the FIR was registered on the basis of a preliminary enquiry which was initially directed against one R.P.Dabas, Executive Engineer (Building), MCD, Najafgarh zone, New Delhi. The enquiry ultimately led to the registration of the FIR against three persons but only the appellant was put on trial. The ground taken by the CBI for not sending up the other two viz. the Executive Engineer referred to above and the management of the Uppal Orchid Motel is that there was no material against them for their prosecution. It does not appear to be probable that the Executive Engineer would not have known that there had not been any demolition at Samalkha i.e. at the Uppal Orchid Motel. The other aspect which strikes the Court is that the notice of demolition was received by the management of the hotel and in fact the demolition charges also were paid. It could be argued that with the proposal of demolition and payment of demolition charges of a lesser amount, the gaze of the MCD would have been diverted for any further demolition or action at the hotel but to jump to such a conclusion, necessary/positive evidence were required to be pitched in by the prosecution. Admittedly, the file of the Uppal Orchid Motel has not been closed. The prosecution case against the Motel was initiated on the report of the appellant only. Several attempts were made, according to the evidence, by the appellant to have the unauthorized construction demolished but such attempts did not succeed. It appears rather curious and not clearly understandable as to why on 07.06.2005, no resistance was met by the appellant in demolishing the structure. It also is, in a way, obtuse that the appellant did not consider necessary to take the police force with him at the Motel for the demolition when in the past such attempts at demolition could not succeed because of the non-availability of the police force. But that cannot be the sole basis for taking a view that no demolition had taken place at the Motel and the report forwarded by the appellant on 07.06.2005 was a false report. If it were a false report, it ought to have been with the approval of the superior staff of the MCD or else the report would not have been accepted. The fact that the entire issue was raked up by the appellant; the file of the Motel was not closed after partial demolition and; the report about partial demolition give an impression that perhaps some demolition action had taken place at the Motel.

       What is even more surprising is that if deliberately false report was submitted and that was only for the purposes of helping the Motel, there was no reason for the CBI to have not sent up the management of the Motel for facing trial. If an act which is said to have been unauthorisedly done and it does not give any benefit to the person, then that act cannot be stated to be, for any gainful acquisition for the wrong doer. If Uppal Orchid Motel was not benefitted and was not put on trial, there would be no justification for trying and convicting the appellant who allegedly was trying to help the Motel. On this score alone, the prosecution case becomes doubtful.

       For the offence under Section 218 IPC to be established, it would be of extreme importance that the public servant who is being prosecuted, ought to know that the report which is being forwarded is incorrect and that it is for the purpose of causing loss or injury to public or to save any person from illegal punishment or save a property from being forfeited. If there is no evidence on record brought forward by the prosecution that Uppal Orchid Motel was benefitted in any manner, then the prosecution under Section 218 must necessarily fail. If there would have been any gain to the Motel, it was necessary for the management of the Motel to have been tried for establishing whether the report dated 07.06.2005 enured in his favour and that it was deliberately done for helping the management of the Motel.

       Similarly, this Court is at a loss to understand as on what material, the appellant has been convicted and sentenced under Section 13(2) read with Section 13(1)(d) of the P.C Act, 1988. Admittedly, there is no telephonic call or any evidence in support of any monetary gain by the appellant at the instance of the management of the Uppal Orchid Motel. (Paras 25, 26, 28 and 29)

       Result: Appeal allowed.