Dr. Tapan Kumar Sharma -- Revisionist v. State of Uttarakhand and Another

On the basis of a written complaint made by one Shri Rajendra Singh Mehta, submitted to the office of the Vigilance Establishment, Sector Nainital, an FIR bearing Case Crime No. 03 of 2023 was registered under Section 7 of the Prevention of Corruption Act, 1988.

6. In the complaint, it was alleged that the revisionist had demanded an undue monetary advantage (bribe) in connection with work-related payment concerning the complainant’s firm. Acting upon the complaint, the Vigilance Establishment formed a trap team and prepared a trap memo/panchnama.

7. The complainant was provided with currency notes, the numbers of which were recorded in the trap memo. It is also recorded that the trap team equipped the complainant with a Digital Voice Recorder (DVR) for recording the trap proceedings.

8. The trap team, along with the complainant and a shadow witness, proceeded to the designated location. The prosecution claims that during the trap proceedings, money was recovered by the Vigilance Team, and on that basis, a case was registered against the revisionist.

9. After completion of investigation, a charge sheet was filed before the Special Judge (P.C. Act). Along with the charge sheet, the prosecution also filed the SFSL report relating to the DVR. As per the report, the DVR allegedly containing the trap conversation was found to be “corrupted”.

10. The revisionist filed an application for discharge, asserting that the case records do not disclose the essential ingredients of the offence under Section 7 of the P.C. Act. After hearing both sides, the Trial Court rejected the discharge 2 Criminal Revision No. 75 of 2024- Dr. Dr. Tapan Kumar Sharma v State of Uttarakhand and Another. Ashish Naithani J. application on 20.11.2023, and on the same day, framed charge under Section 7 of the Prevention of Corruption Act.

11. The revisionist has now filed the present Criminal Revision, contending that the Trial Court erred in rejecting the discharge application and framing the charge.

13. Heard learned counsel for the parties and perused the records. Learned Senior Counsel Mr. U.K. Uniyal, assisted by Mr. Harshit Sanwal, argued that the impugned order dated 20.11.2023 rejecting the discharge application and framing charge under Section 7 of the Prevention of Corruption Act, 1988, has been passed without proper judicial application of mind. It was submitted that the very foundation of the prosecution case is absent, as the material on record does not indicate any specific demand of illegal gratification by the revisionist.

14. The learned counsel drew the Court’s attention to the complainant's statement and submitted that nowhere does the complainant attribute a clear and conscious demand of bribe to the revisionist. According to the learned counsel, the prosecution’s own documents show that the due amount of ₹86,400/- had already been released to the complainant’s firm before the alleged trap, thereby negating the existence of any motive or reason for the revisionist to demand money from the complainant.

15. It was further argued that although a digital voice recorder (DVR) was used in the trap proceedings, the SFSL report records that the DVR was corrupted and no audio could be retrieved. Since the DVR recording would have been the best electronic evidence of demand and acceptance, counsel claimed that its absence weakens the State’s case to the extent that no charge could have been validly framed. 3 Criminal Revision No. 75 of 2024- Dr. Dr. Tapan Kumar Sharma v State of Uttarakhand and Another. Ashish Naithani J.

16. The learned Senior Counsel also submitted that the mandatory requirement under Section 17A of the Prevention of Corruption Act which mandates prior approval of the competent authority before any inquiry or investigation relating to acts done in discharge of official duties was not complied with.

17. Opposing the revision, learned A.G.A. Mr. Bhaskar Chandra Joshi, submitted that the Trial Court has committed no illegality in rejecting the discharge application. Learned counsel submitted that at the stage of framing of charge, the Court is not required to undertake a meticulous evaluation of evidence or determine whether the material will ultimately result in conviction. It is sufficient if the material placed by the prosecution creates a prima facie case warranting trial.

18. The learned State counsel argued that recovery of currency notes during the trap proceedings corroborates the allegation against the revisionist. According to the State, the trap operation and recovery memo form sufficient basis to proceed against the revisionist, and the question of whether demand was actually made is a matter to be tested by evidence during trial.

19. With regard to the argument relating to non-availability of DVR audio, it was submitted that even if electronic evidence is not available, the oral testimony of trap witnesses is sufficient to justify framing of charge. The State contended that the absence of DVR evidence is not fatal at this stage.

20. The learned State Counsel also submitted that Section 17A is not attracted, as demand of illegal gratification does not fall within the scope of acts done in discharge of official duties. Therefore, according to the State, no prior approval was required before conducting the trap proceedings.

21. It was argued that revisional jurisdiction is narrow in scope and cannot be exercised to re-appreciate evidence or to substitute the Trial Court’s findings merely because another view is possible. The State therefore prayed that the revision be dismissed. 4 Criminal Revision No. 75 of 2024- Dr. Dr. Tapan Kumar Sharma v State of Uttarakhand and Another. Ashish Naithani J.

22. This Court proceeds to observe that the foundation of the State’s case rests on the alleged demand and acceptance of illegal gratification. However, from a plain reading of the material produced along with the charge-sheet, there is no direct evidence of any demand made by the revisionist from the complainant. The statement of the complainant recorded during investigation does not specifically attribute any demand of money to the revisionist. The alleged audio recording, which could have been the best corroborative evidence, has been found to be corrupted and unreadable as per the SFSL report, thereby leaving the prosecution without any reliable primary evidence of demand or acceptance.

23. Further, it remains undisputed that the amount claimed by the complainant towards his work had already been cleared and paid by the department prior to the alleged trap operation. Once the payment stood disbursed, no occasion existed for the revisionist to demand any further gratification. The element of motive which forms the backdrop for demand thus stands negated on the face of record.

24. The Court also notices that the State has not placed on record any material to show compliance of the mandatory requirement under Section 17-A of the Prevention of Corruption Act, which protects public servants from investigation for acts done in discharge of official duty without prior approval of the competent authority. The alleged acts of the revisionist, even as per the State’s case, were connected with his official functions, and therefore an inquiry undertaken without such approval cannot be sustained.

24. It further emerges that during the trap proceedings, the person actually caught with the tainted currency was one Mr. Anil Joshi, and not the present revisionist. The only link sought to be established is an alleged telephonic call between them, which too has neither been produced nor verified. Such indirect inference, unsupported by any contemporaneous evidence, cannot justify framing of charge under Section 7 of the Act, which requires clear proof of both demand and acceptance of illegal gratification. 5 Criminal Revision No. 75 of 2024- Dr. Dr. Tapan Kumar Sharma v State of Uttarakhand and Another. Ashish Naithani J.

25. The learned Special Judge, while rejecting the discharge application, has not undertaken any objective scrutiny of these aspects and has instead proceeded to frame charge mechanically. The law is well settled that at the stage of framing of charge, the court must be satisfied that the basic ingredients of the offence exist on the record; mere suspicion, conjecture, or the existence of an incomplete chain of events cannot substitute the legal requirement of establishing a prima facie case.

26. In the present matter, neither demand nor acceptance is supported by any admissible or credible material. The entire State’s version, therefore, fails to disclose the essential ingredients constituting an offence under Section 7 of the Prevention of Corruption Act. Continuation of proceedings in such circumstances would amount to an abuse of the process of law. ORDER Accordingly, the criminal revision is allowed. The impugned order dated 20.11.2023 passed by the learned Special Judge (Prevention of Corruption Act), Haldwani, District Nainital, in Special Sessions Trial No. 49 of 2023, is set aside. Consequently, the revisionist Dr. Tapan Kumar Sharma is discharged from the charge under Section 7 of the Prevention of Corruption Act, 1988. (Ashish Naithani, J.) 6 Criminal Revision No. 75 of 2024- Dr. Dr. Tapan Kumar Sharma v State of Uttarakhand and Another. Ashish Naithani J.