SOUNDARAJANversusSTATE REP. BY THE INSPECTOR OF POLICE VIGILANCE ANTICORRUPTION DINDIGUL

                         [2023] 4 S.C.R. 133                              133


                         SOUNDARAJAN                                      A
                                  v.
  STATE REP. BY THE INSPECTOR OF POLICE VIGILANCE
              ANTICORRUPTION DINDIGUL
                 (Criminal Appeal No. 1592 of 2022)                       B
                           APRIL 17, 2023
        [ABHAY S. OKA AND RAJESH BINDAL, JJ.]
       Prevention of Corruption Act, 1988 : ss. 7, 13(1)(d), r/w 13(2)
– Illegal gratification – Appellant-Sub-Registrar demanded
                                                                          C
gratification of Rs.500/- from the complainant-PW 2, for handing
over the registered sale deed – Complaint filed – Trap laid and in
presence of shadow witness PW-3, the appellant caught red-handed
while accepting the bribe – However, complainant did not support
the prosecution and was declared hostile – Trial court convicted
and sentenced the appellant for the offences punishable u/s 7 and         D
s. 13(2) r/w s. 13(1)(d) – Upheld by the High Court – On appeal,
held : To attract s. 7, the demand for gratification has to be proved
by the prosecution beyond a reasonable doubt – It is not a simple
demand for money, but it has to be a demand for gratification – On
facts, the complainant did not support the prosecution – In his
                                                                          E
examination-in-chief, he did not say anything about the demand
made by the appellant – PW-3 did not say that the appellant made a
specific demand of gratification in his presence to PW-2 – No
circumstantial evidence of demand for gratification – Thus, the
offences punishable u/s. 7 and s. 13(2) r/w s. 13(1)(d) not established
– Furthermore, there was omission or error to frame charge, which         F
may lead to acquittal – Thus, the impugned judgment quashed and
set aside – Code of Criminal Procedure, 1973 – s.464.
      Code of Criminal Procedure, 1973: s. 464 – Effect of omission
to frame or absence of, or error in, charge – Held: Under s. 464,
omission to frame a charge or any error in charge is never fatal          G
unless, in the opinion of the Court, a failure of justice has in fact
been occasioned thereby – Instant case is of omission to frame a
proper charge, and whatever charge has been framed is, per se
defective – However, by reason of the said omission, the accused
not prejudiced insofar as his right to defend is concerned.
                                                                          H
                                 133
134            SUPREME COURT REPORTS                          [2023] 4 S.C.R.


A           Neeraj Dutta v. State (Govt. of NCT of Delhi) 2022 SCC
            online SC 1724 - relied on.
            Mohan Singh v. State of Bihar (2011) 9 SCC 272; Union
            of India v. Ex-GNR Ajeet Singh (2013) 4 SCC 186 -
            referred to.
B
                              Case Law Reference
      (2011) 9 SCC 272                   Referred to              Para 8
      (2013) 4 SCC 186                   Referred to              Para 8
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
C     1592 of 2022.
            From the Judgment and Order dated 08.01.2019 of the High Court
      of Judicature at Madras at Madurai in CRLAMD No. 140 of 2012.
             S. Nagamuthu, Sr. Adv., B. Balaji, M. P. Parthiban, Duvvuri
D     Subrahmanya Bhanu, Ms. Shalini Mishra, Raja Rajeshwaran S., Advs.
      for the Appellant.
            Dr. Joseph Aristotle S., Shobhit Dwivedi, Ms. Vaidehi Rastogi,
      Advs. for the Respondent.
            The Judgment of the Court was delivered by
E
            ABHAY S. OKA, J.
            FACTS
            1. The appellant was convicted for the offences punishable under
      Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention
F     of Corruption Act, 1988 (for short, ‘the PC Act’). The appellant was
      sentenced to undergo imprisonment for one year and to pay a fine of Rs.
      2,000/-. High Court, by the impugned judgment, has confirmed the
      conviction and sentence of the appellant.
             2. The appellant was holding the post of Sub-Registrar at
G     Kannivadi, Dindigul District, Tamil Nadu. The complainant M.
      Sundaramoorthy (PW-2), had purchased land measuring 16.05 cents.
      Accordingly, on 12th July 2004, sale deed was presented before the
      appellant who was the Sub-Registrar in the concerned office. The
      complainant and his vendors were present. According to the case made
      out by the complainant in his complaint, apart from getting the sale deed
H
  SOUNDARAJAN v. STATE REP. BY THE INSP. OF POLICE                               135
  VIG. ANTICORRUPTION DINDIGUL [ABHAY S. OKA, J.]

typed on a stamp paper of Rs.880/-, he paid a sum of Rs.190/- towards            A
the registration charges of the sale deed. A receipt for the said amount
was issued by the appellant. On 16th July 2004, when the complainant
visited the appellant’s office, he was informed to bring FMB Sketch
from the concerned Government office. According to the complainant,
on 31st July 2004, the said sketch was produced by him. After the sketch         B
was produced, the appellant informed him that he would have to make a
site visit. Accordingly, the complainant arranged for transport for the
appellant to enable him to make a site visit. After noticing trees on the
land, the appellant instructed the complainant to get a TOPO Sketch
from the concerned office to show that the land subject matter of sale
was cultivable. Thereafter, the complainant obtained requisite documents         C
and handed over the same to the appellant on 6 th August 2004 at 11.30
am. According to the complainant, at that time, the appellant demanded
gratification of Rs.500/- for handing over the registered sale deed. As
the complainant was not willing to give gratification, on 11th August 2004,
he filed a complaint with the Inspector of Police of the Anti-Corruption         D
Unit.
       3. Based on the complaint, a trap was laid on 12th August 2004,
which was unsuccessful. According to the prosecution case, the trap
was again laid on 13th August 2004. It was successful, and in the presence
of the shadow witness Michael (PW-3), the appellant was caught red-              E
handed while accepting the bribe.
        4. The prosecution examined 12 witnesses. PW-1 N.Dhanam
Jeyan was examined to prove the sanction order. As stated earlier, PW-
2 M.Sundaramoorthy is the complainant and PW-3 Michael is the shadow
witness. No other witness is relevant for proving the alleged demand             F
made by the appellant. The complainant (PW-2) did not support the
prosecution and was declared as hostile. The appellant examined two
defence witnesses, S. Kathiresan and Kalaiselvi to bring on the record
audit report of the office in which the appellant was working and a
circular issued by the Inspector General of Registration, which required
the Sub-Registrar to visit a land subject matter of sale deed for ascertaining   G
its valuation.
       SUBMISSIONS
      5. The learned senior counsel Mr S.Nagamuthu, appearing for
the appellant, submitted that there was no charge framed as regards the          H
136             SUPREME COURT REPORTS                            [2023] 4 S.C.R.


A     demands made on 6th August 2004 and 13th August 2004. Inviting our
      attention to the first charge framed by the Special Court, he urged that
      the charge is about the alleged demand made on 12th July 2004 when the
      sale deed was registered. He submitted that even according to the
      prosecution case, there was no demand made on 12th July 2004 at the
B     time of the registration of the sale deed. He submitted that because of
      this material defect in the charge and omission to frame a proper charge
      regarding demand allegedly made on 6th August 2004 and 13th August
      2004, grave prejudice has been caused to the appellant, who could not
      defend himself properly.

C            6. The learned senior counsel for the appellant submitted that, in
      any event, the complainant had not supported the prosecution, and the
      shadow witness (PW-3) did not depose that in his presence there was
      any demand of the sum of Rs.500/- by the appellant for returning the
      sale deed to the complainant. He urged that the offence punishable under
      Section 7 was not made out without proof of demand. He urged that as
D     no offence was made out under Section 7, even the offence under clause
      (d) of sub-section (1) of Section 13 was not established.
             7. Dr Joseph Aristotle, the learned counsel representing the State
      Government, submitted that in view of Section 464 of the Code of Criminal
      Procedure, 1973 (for short ‘CrPC’), no defect or omission in the framing
E     of charge is fatal to the prosecution case unless any prejudice caused
      due to the said omission or failure of justice is established by the accused.
      He submitted that, in this case, prejudice has not been shown.
             8. He relied on this Court’s decisions in the cases of Mohan
      Singh v. State of Bihar1 and Union of India v. Ex-GNR Ajeet Singh2.
F     The learned counsel lastly relied upon a decision of the Constitution
      Bench in the case of Neeraj Dutta v. State (Govt. of NCT of Delhi)3
      for submitting that a demand for gratification can be established even on
      the basis of circumstantial evidence.
             FINDING ON PROOF OF DEMAND
G
             9. We have considered the submissions. It is well settled that for
      establishing the commission of an offence punishable under Section 7

      1
        (2011) 9 SCC 272
      2
        (2013) 4 SCC 186
      3
H       2022 SCC online SC 1724
  SOUNDARAJAN v. STATE REP. BY THE INSP. OF POLICE                              137
  VIG. ANTICORRUPTION DINDIGUL [ABHAY S. OKA, J.]

of the PC Act, proof of demand of gratification and acceptance of the           A
gratification is a sine qua non. Moreover, the Constitution Bench in
the case of Neeraj Dutta3 has reiterated that the presumption under
Section 20 of the PC Act can be invoked only on proof of facts in
issue, namely, the demand of gratification by the accused and the
acceptance thereof.
                                                                                B
      10. As stated earlier, complainant PW-2 has not supported the
prosecution. He has not said anything in his examination-in-chief about
the demand made by the appellant. The public prosecutor cross-examined
PW-2. The witness stated that there was no demand of a bribe made by
the appellant. According to him, he filed a complaint as the return of the
sale deed was delayed. Though PW-2 accepted that he had filed the               C
complaint, in the cross-examination, he was not confronted with the
material portions of the complaint in which he had narrated how the
alleged demand was made. The public prosecutor ought to have
confronted the witness with his alleged prior statements in the complaint
and proved that part of the complaint through the concerned police officer      D
who had reduced the complaint into writing. However, that was not
done.
       11. Now, we turn to the evidence of the shadow witness (PW-3).
In the examination-in-chief, he stated that the appellant asked the PW-2
whether he had brought the amount. PW-3 did not say that the appellant          E
made a specific demand of gratification in his presence to PW-2. To
attract Section 7 of the PC Act, the demand for gratification has to be
proved by the prosecution beyond a reasonable doubt. The word used in
Section 7, as it existed before 26th July 2018, is ‘gratification’. There has
to be a demand for gratification. It is not a simple demand for money, but
it has to be a demand for gratification. If the factum of demand of             F
gratification and acceptance thereof is proved, then the presumption
under Section 20 can be invoked, and the Court can presume that the
demand must be as a motive or reward for doing any official act. This
presumption can be rebutted by the accused.
        12. There is no circumstantial evidence of demand for gratification     G
in this case. In the circumstances, the offences punishable under Section
7 and Section 13(2) read with Section 13(1)(d) have not been established.
Unless both demand and acceptance are established, offence of obtaining
pecuniary advantage by corrupt means covered by clauses (i) and (ii) of
Section 13(1)(d) cannot be proved.                                              H
138            SUPREME COURT REPORTS                          [2023] 4 S.C.R.


A        EFFECT OF THE FAILURE TO FRAME A PROPER
      CHARGE
            13. We must deal with another argument made by the learned
      senior counsel appearing for the appellant. That is about the failure to
      frame a proper charge for the offence punishable under Section 7. The
B     relevant portion of the charge reads thus:
            “You, working as the Sub Registrar at Kannivadi, Dindigul District
            from 27.10.2003 to 27.10.2003 and as such you are a public servant
            you registered the sale deed of 16.05 cents of land purchased by
            Sundaramoorthy on 12.07.2004 and demanded a sum of Rs.500/-
C           from Sundaramoorthy as gratification other than legal
            remuneration for returning the registered document and also
            received Rs.500/- as bribe, hence you disclosed the offences
            punishable u/s. 7 of Prevention of Corruption Act 1988 and triable
            by this Court.”
D           14. Thus, the Special Court omitted to frame a specific charge on
      demand allegedly made by the appellant on 6th and 13th August 2004 and
      acceptance thereof on 13th August 2004.
             15. Under Section 464 of CrPC, omission to frame a charge or
      any error in charge is never fatal unless, in the opinion of the Court, a
E
      failure of justice has in fact been occasioned thereby. In this case, from
      the perusal of the cross-examination of PW-3 and other prosecution
      witnesses made by the Advocate for the appellant, it is apparent that the
      appellant had clearly understood the prosecution case about the first
      alleged demand made on 6th August 2004 and the subsequent alleged
F     demand and acceptance on 13th August 2004. There is no doubt that this
      is a case of omission to frame a proper charge, and whatever charge
      has been framed is, per se defective. However, by reason of the said
      omission or defect, the accused was not prejudiced insofar as his right to
      defend is concerned. Therefore, in this case, the omission to frame charge
      and/or error in framing charge is not fatal.
G
             16. We find that, in this case, the charge has been framed very
      casually. The Trial Courts ought to be very meticulous when it comes to
      the framing of charges. In a given case, any such error or omission may
      lead to acquittal and/or a long delay in trial due to an order of remand
H     which can be passed under sub-section (2) of Section 464 of CrPC.
  SOUNDARAJAN v. STATE REP. BY THE INSP. OF POLICE                               139
  VIG. ANTICORRUPTION DINDIGUL [ABHAY S. OKA, J.]

Apart from the duty of the Trial Court, even the public prosecutor has a         A
duty to be vigilant, and if a proper charge is not framed, it is his duty to
apply to the Court to frame an appropriate charge.
       17. The appeal is allowed. The impugned judgments are quashed
and set aside, and the appellant is acquitted of the offences alleged against
him. The bail bonds of the appellant stand cancelled.                            B


Nidhi Jain                                                     Appeal allowed.
(Assisted by : Yash Chavan and Tamana, LCRAs)


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