Mere disregard of some code or procedure is not enough to establish guilt under Prevention of Corruption Act #indianlaws

Where the attempt of the prosecution was to bring the case within the fold of clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the chargesheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the appellant in issuing the said letter, prosecution under Prevention of Corruption Act is not warranted.

Mere disregard of relevant provisions of some Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused

In a trial under Prevention of Corruption Act, what is required by the prosecution to be proved was the question before the Court. In the present matter four persons were implicated as accused persons in FIR registered under Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (‘PC Act’) and Section 409 read with Section 34 of Indian Penal Code (‘IPC’). After investigation, when the chargesheet was filed, one more person (Appellant) was also added as an accused. Chargesheet was filed under Section 13(2) read with 13(1)(d) of the PC Act and under Sections 468 and 471 read with Section 34 of IPC. Charges were framed by the trial Court against the accused persons. Matter went on trial and resulted in acquittal of A-2 and A-3 from all the charges and conviction of A-1, A-4 and A-5 (i.e. the Appellant) under Sections 13(2) read with 13(1)(d) of the PC Act. These accused persons i.e. A-1, A-4 and A-5 were, however, acquitted of the charges under Sections 468 and 471 read with Section 34 of IPC.

No appeal was filed by the State against the acquittal of A-2 and A-3. A-1, A-4 and A-5 filed appeals in the High Court challenging their conviction. His appeal was taken up by the High Court for hearing and was ultimately dismissed by the High Court vide the impugned judgment.

The case of the prosecution was that all the accused persons colluded together and A-1, A-2 and A-4 disbursed the amount to A-3, the nominee, on the basis of some false certificate and in this way, the appellant abused his official position to obtain pecuniary advantage.

Court referred to the provisions of Section 13(1)(d) of the PC Act, which reads as under:

“13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,-

xxxx

(d) If he,-

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or”

The prosecution sought to cover the case of the appellant under sub-clause (ii) and not under sub-clause (i) and sub-clause (iii). Insofar as sub-clause (ii) was concerned, it stipulated that a public servant is said to commit the offence of criminal misconduct if he, by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.

Thus, the ingredients required to be proved are:

(1) The public servant has abused his position.

(2) By abusing that position, he has obtained for himself or for any other person any valuable thing or pecuniary advantage.

It was observed that it was not even the case set up by the prosecution that appellant had taken that money from some person and had obtained any pecuniary advantage thereby. It was the obligation of the prosecution to satisfy the aforesaid mandatory ingredients which could implicate the appellant under the provisions of Section 13(1)(d)(ii). The attempt of the prosecution was to bring the case within the fold of clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the chargesheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the appellant in issuing the said letter.

It was held that in the instant case, prosecution miserably failed to prove the charge beyond reasonable doubt and the courts below have not looked into the matter in a proper perspective. Appeal accordingly was allowed.

[A. Sivaprakash vs. State of Kerala]

SC, 10.05.2016

Criminal Appeal No. 131 of 2007