RAKESH KAPOOR v. STATE OF HIMACHAL PRADESH

Judgment

13 S.C.R. 148 RAKESH KAPOOR v. STATE OF HIMACHAL PRADESH (Criminal Appeal No. 1839 of 2012) NOVEMBER 22, 2012 A B [P. SATHASIVAM AND RANJAN GOGOi, JJ.] Prevention of Corruption Act, 1988 - ss. 7 and 13(2) - Prosecution under - Demand and acceptance of illegal C gratification - Conviction by trial court - High Court confirmed conviction uls. 13(2) while setting aside conviction u/s. 7 - On appeal, held: Conviction uls. 13(2) cannot be sustained in absence of the substantive charge uls. 13(1)(a) and also in view of acquittal u/s. i' - Conviction is also not sustainable in o view of lacuna in the prosecution case as regards demand of the bribe - Accused is entitled to benefit of doubt and hence . acqwtted. . The appellant-accused was prosecuted u/ss. 7 and 13(2) of Prevention of Corruption Act, 1988. The E prosecution case was that the accused had demanded money from PW1-complainant for granting licence to run his hotel by a telephone call. PW-1 made a complaint to the police. The police laid a trap. PW-3 was the shadow witness. The accused was charged uls. 7 and 13(2) of the F Act. The treated currency notes were recovered from the accused. Trial Court convicted him u/ss. 7 and 13(2) of the Act. High Court set aside the conviction u/s. 7 and confirmed the conviction u/s. 13(2). Hence the present appeal. G H Allowing the appeal, the Court HELD: 1. The criminal misconduct which is defined in Section 13(1)(a) of Prevention of Corruption Act, 1988 148 RAKESH KAPOOR v. STATE OF HIMACHAL PRADESH 149 has not been included in the charge. In such a A circumstance, the accused lost an important opportunity to defend himself, particularly, when he was acquitted u/ s. 7 of the Act. In the light of the undisputed factual position that conviction of the appellant u/s. 7 has been set aside by the High Court and in the absence of any B appeal by the State against such acquittal and substantive charge u/s.13(1 )(a), the conviction u/s.13(2) cannot be sustained. [Para 9) [157-G-H; 158-A-B] Joseph Kurian Philip Jose vs. State of Kera/a (1994) 6 C SCC 535: 1994 (4) Suppl. SCR 122; Wakil Yadav and Anr. vs. State of Bihar (2000) 10 SCC 500 - relied on.

2.1 Except the oral testimony of PWs 1 and 3, there is no other proof in respect of the demand of bribe money and the 1.0. could not collect the telephone call D details from the department concerned. Accordingly, there is no material/evidence for the demand of bribe. Even the official witness, who helped in the search of the accused, was examined as PW-14 but did not support the prosecution case and turned hostile. In the absence of E the demand and acceptance, the accused is entitled to the benefit of doubt. [Para 11) [159-E-H 160-A] Banarsi Dass vs. State of Haryana (2010) 4 SCC 450: 2010 (4) SCR 383 - relied on. F