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IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mr. Pankaj Bhandari, J.
Dr. Rajendra Prasad Sharma - Appellant
Versus
State Of Rajasthan - Respondent
Criminal Appeal No. 1052 of 2018
Decided On : 27-11-2018
PREVENTION OF CORRUPTION ACT - SECTION 13(1)(E) - SECTION 20 - SECTION 120-B IPC - DISPROPORTIONATE ASSETS - PROOF OF INCOME AND EXPENDITURE - PRESUMPTION - PRIVATE PRACTICE - FORFEITURE OF PROPERTY - The prosecution failed to prove the known-sources of income of the appellant, his expenditure, and relied on the challan paper which was not exhibited before the Court and not put to the accused-appellants under Section 313 Cr.P.C. The Court erred in drawing a presumption under Section 20 of the Act, which is inapplicable to Section 13(1)(e) of the Prevention of Corruption Act. The conviction was based on the challan paper and not on substantive evidence. The order of forfeiture of property was also contrary to the Act.
Fact of the Case:
The appellants were convicted for offences under the Prevention of Corruption Act and IPC for possessing disproportionate assets. The prosecution alleged that the appellant No.1, a government servant, had amassed wealth beyond his known sources of income and that the other appellants had conspired with him.
Finding of the Court:
The Court found that the prosecution had failed to prove the known-sources of income of the appellant No.1, his expenditure, and had relied on the challan paper which was not exhibited before the Court and not put to the accused-appellants under Section 313 Cr.P.C. The Court also found that the trial Court had erred in drawing a presumption under Section 20 of the Act, which is inapplicable to Section 13(1)(e) of the Prevention of Corruption Act. The Court held that the conviction was based on the challan paper and not on substantive evidence and that the order of forfeiture of property was also contrary to the Act.
Issues: 1. Whether the prosecution had proved the known-sources of income of the appellant No.1 and his expenditure? 2. Whether the Court erred in drawing a presumption under Section 20 of the Act, which is inapplicable to Section 13(1)(e) of the Prevention of Corruption Act? 3. Whether the conviction was based on the challan paper and not on substantive evidence? 4. Whether the order of forfeiture of property was contrary to the Act?
Ratio Decidendi: 1. The prosecution failed to produce evidence regarding the known-sources of income of the appellant No.1 and his expenditure. 2. Section 20 of the Prevention of Corruption Act is inapplicable to Section 13(1)(e) of the Prevention of Corruption Act. 3. The conviction was based on the challan paper and not on substantive evidence. 4. The order of forfeiture of property was contrary to the Act.
Final Decision: The appeal was allowed, the judgment of conviction and sentence passed by the Court below was quashed and set aside, and the appellants were acquitted of the charges levelled against them.
JUDGMENT
Pankaj Bhandari, J. - The matter has come up on the stay application filed by the appellants. With the consent of counsel for the parties, the matter was heard at length for deciding the appeal itself.
2. Appellants have preferred this appeal aggrieved by judgment and order dated 17.05.2018 passed by Special Judge Anti Corruption Cases, Kota, whereby, appellant No.1 and 2 have been convicted for offence under Section 120-B IPC and Section 13(1) (e) read with Section 13(2) of Prevention of Corruption Act and appellants No.3 to 7 have been convicted for offence under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act read with Section 120-B of IPC. Appellants No.1 and 2 have been sentenced to six months simple imprisonment for offence under Section 120-B IPC and seven years rigorous imprisonment for offence under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act and fine of Rs. 50,00,000/- each have been imposed. On non-payment of fine to further undergo three years simple imprisonment. Appellants No.3 and 4 have been sentenced to three years rigorous imprisonment and fine of Rs. 5,00,000/- each, on non-payment of fine to further undergo six months rigorous imprisonment. Appellants No.5 to 7 have been sentenced to five years rigorous imprisonment and fine of Rs. 5,00,000/- and on non-payment of fine to further undergo one year simple imprisonment.
3. In brief, the factual matrix of the case are that a complaint was registered against the appellant No.1 at Anti Corruption Bureau, Jaipur on 11.10.1998. In furtherance of the report, residential premises of appellant No.1 and his hospital were searched by the Anti Corruption Bureau Team. After due investigation, charge-sheet was filed against the appellants, whereby appellants No.1 & 2 were charged for offence under Section 120-B IPC and Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act and rest of the appellants were charged under section Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act read with Section 120-B IPC.
4. Appellants denied the charges and sought trial, whereupon sixteen witnesses were examined on behalf of the prosecution and thirty documents were exhibited. Sixty five articles were also exhibited before the Court. Appellants were examined under Section 313 Cr.P.C., 1973 In defence, six witnesses were examined on behalf of the appellants. Learned Court below after hearing the arguments have convicted and sentenced the appellants as herein above mentioned aggrieved by which the present appeal has been preferred.
5. It is contended by counsel for the appellants that the Court below has committed grave error and illegality in convicting the appellants under the Prevention of Corruption Act, without there being any evidence. It is also contended that the Court below has considered the challan paper for convicting the appellants. Challan paper is not material evidence and the same cannot be made basis of conviction, moreover the challan paper were not put to the accused-appellants under Section 313 Cr.P.C., 1973
6. Counsel for the appellants has placed reliance on "Rishi Nandan Pandit & Ors. v. State of Bihar" 2000 Cr.L.R. (SC)52, wherein, the Apex Court has held that the material collected during investigation cannot be made basis of conviction unless the same is proved by leading substantive evidence in the Court.
7. It is contended that there was no evidence namesake with regard to income of the appellants during the period from 1982 to 1998. There was no evidence with regard to the assets, his expenditure and purchase by the appellants, there was no calculation with regard to disproportionate assets of the appellants. It is also contended that prior to joining government service, appellant No.1 has worked as an agent in Life Insurance Corporation of India from 1971 to 1981 which income was also not considered and Court below merely mentioned that income be considered as o
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