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PETITIONER: BHUPESH DEB GUPTA (DEAD) BY L.RS.

       Vs.

RESPONDENT: STATE OF TRIPURA

DATE OF JUDGMENT22/09/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SINGH, JASWANT KOSHAL, A.D.

CITATION:  1978 AIR 1672            1979 SCR  (1) 906  1979 SCC  (1)  87

ACT:      Criminal  Procedure   Code,  1973  (Act  II  of  1974), Sections 211,  212, 213,  214 and  215-Charge should  not be vaguer and  every particular  required to  be stated must be furnished  so  that  the  accused  may  not  be  misled  and prejudiced.      Penal   Code,   1872-Section   161,   ingredients   of- Presumptions  under   Section  4(1)  of  the  Prevention  of Corruption Act-Scope of Section 4(1) of POCA.

HEADNOTE:      Bhupesh Deb  Gupta, the  original appellant  was tried, found guilty  of the  charge of  receiving Rs. 75/- from one Nikhil Chakraborty  on or  about 2-12-1961,  convicted of an offence under  Section 161  I.P.C. and  sentenced to  suffer rigorous imprisonment  for two  months. The  High  Court  in appeal, while  confirming the  conviction under  section 161 I.P.C., reduced  the sentence  to a  fine of Rs. 200/- only, taking into  account the  age and  the long  lapse  of  time between the  date of  offence and  the date  of  conviction. During the  pendency of  the appeal  by  special  leave  the original   appellant   died   and   therefore,   his   legal representative was  granted leave  to  continue  the  appeal under Section 494(2) of the Crl.P.C.      Allowing the appeal the Court, ^      HELD :  (1) Before the accused can be held guilty of an offence under  Section 161  of the  Indian Penal  Code,  the following ingredients will have to be proved:           1.    The accused at the time of the offence was a                public servant.           2.       That  he  accepted  from  some  person  a                gratification.           3.    That  such gratification  was  not  a  legal                remuneration due to him.           4.   That the  accused accepted  the gratification                as  a   motive  or  reward  for  one  of  the                following purposes:                (a)   doing or  forbearing to  do an official                     act;                (b)  showing or  forbearing to show favour or

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                   disfavour to  someone in the exercise of                     his official functions;                (c)  rendering or  attempting to  render, any                     service or  disservice to  someone, with                     the Central  or any  State Government or                     Parliament or  the  Legislature  of  any                     State, or with any public servant.      In the instant case, the fourth ingredient has not been fulfilled due  to the  defect in the charge framed as to the motive and also the non-examination of Nikhil Chakraborty as a witness  on the  ground "his  whereabouts are  not known". [909D-E]      (2) A  reading of  Section 4(1)  of the  Prevention  of Corruption Act  and Explanation to Section 161 of the Indian Penal Code  would show  that when  it  is  proved  that  the accused has accepted a gratification it shall be presumed 907 unless the  contrary is  proved that  he accepted  it  as  a motive or  reward such  as  is  mentioned  in  Section  161. Section 161,  therefore, provides  presumption in  favour of the prosecution. When once it is proved that the accused had accepted an  illegal gratification it shall be presumed that it  is   for  one  of  the  purposes  in  Section  161.  The Explanation to  Section 161 makes it clear that a person who receives a  gratification as a motive for doing what he does not intend to do, or as a reward for doing what has not done comes within  the words,  "a motive  or reward  for  doing". [911D-F]      (3) The  prosecution would  be entitled  to rely on the presumption  under   Section  4(1)   of  the  Prevention  of Corruption Act  and Explanation to Section 161 I.P.C. if the necessary averments  were made in the charge and the accused was  given  an  opportunity  to  explain  the  circumstances against him and to meet the charge which the prosecution was trying to make out against the accused. [912A-B]      In the instant case; it cannot be said that the accused was not  prejudiced by  the frame of the charge, because (a) It is  admitted that though the accused was a public servant in exercise  of his official position, he could not secure a job which he promised. [911H and 912H]      (b) It  is not  the case  of the  prosecution that  the accused received  a gratification but he had no intention to do what he promised. [912A]      (c)  Nor   was  it  alleged  in  the  charge  that  the gratification was  intended  for  being  paid  to  a  public servant. The  prosecution case is that the gratification was for inducing  a  public  servant  to  show  favour  in  this respect. [912A, C]      (d) It  is, no  doubt, true  that  the  accused  cannot complain  of   any  defect  in  the  charge  if  he  is  not prejudiced.  Even   in  Section   313  (old   section   342) examination of  the accused,  the purpose for receipt of the gratification was  not put to him and explanation asked for. [912A-D]      (e) The  High Court  understood the  charge as  meaning that the  money was  sent by Nikhil Chakraborty on behalf of Sachindra Deb. [912F]      and (f) The charge and the judgment of the Courts below indicate that  the   Courts proceeded  on the basis that the gratification was received by the accused for showing favour as a  ’public servant’, while the basis of the charge sought to  be   made  out  in  the  present  appeal  is  that  "the gratification was  paid to  the accused  for  influencing  a public servant." [912G]

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 74 of 1972.      Appeal by  Special Leave  from the  Judgement and Order dated 30-7-71  of the Judicial Commissioner Court, Tripur in Crl.A.21/67.      M. K.  Ramamurthi, J. Ramarurthi and Miss R. Vaigai for the Appellant.      E. C. Agarwala and R. N. Sachthey for the Respondent.      The Judgment of the Court was delivered by      KAILASAM, J.-This  appeal is  by special  leave against the  judgment  of  the  Judicial  Commissioner  at  Agartala convicting the appellant, 908 Bhupesh Deb  Gupta of  an offence  under Section  161 Indian Penal Code and sentencing him to a fine of Rs. 200/-      Pending appeal  in this  Court, the  appellant died and his widow  brought on record as the legal representative  of Bhupesh Deb  Gupta, as  she was  adversely affected  by  the sentence of  fine and  conviction under Section 161,  as, it deprived her of receiving the pay and other allowances which the  accused  would  have  been  entitled  to  but  for  his conviction.      The accused  Bhupesh Deb  Gupta alias Erick was working as an  Upper  Division  Clerk  in  the  Tripura  Territorial Council in  the year  1959. While  investigating some  other offence,  P.W.   1  Shri  T.  Ganguly  who  was  the  Deputy Superintendent of  Police in  Tripura in  1963  came  across certain  postal   envelopes  in  the  Office  of  the  Chief Executive Engineer  which disclosed  that  the  accused  was receiving  bribes.  After  investigation,  the  accused  was charged with  various offences.  In this  appeal we are only concerned with the charge that the accused received a sum of Rs. 75/-  from Nikhil  Chakraborty  as  gratification  as  a motive or  reward for  showing favour  to him and that on or about 2nd  December, 1961  he received Rs.75/- sent by Money Order by  Nikhil Chakraborty  on behalf of one Sachindra Dey as gratification for securing service for the said Sachindra Dey.      The trail  Court found the accused guilty of the charge of receiving  Rs. 75/-  from Nikhil  Chakraborty on or about 2nd December,  1961 and  convicted him  of an  offence under Section 161  Indian Penal  Code and  sentenced him to suffer rigorous imprisonment for two months. The Trial Court framed other charges  but found  him guilty of another charge which need not  be referred  to as finally he was acquitted by the High Court  of all charges except the one referred to above. The High Court while confirming the conviction under Section 161 Indian Penal Code regarding the receipt of Rs. 75/- from Nikhil Chakraborty  reduced the  sentence to  a fine  of Rs. 200/- only,  taking into  account the age and the long lapse of time  between  the  date  of  offence  and  the  date  of conviction.      The charge with which we are concerned as framed by the Sub-Judge, Agartala reads as follows:           "That you  Shri Bhupesh Deb Gupta, alias Erick Deb      Gupta, Assistant,  Civil  Secretariat,  Tripura,  while      working as  Upper Division  Clerk in  the Office of the      Chief Executive  Officer  of  the  Tripura  Territorial      Council (now  defunct) accepted on or before 2nd day of      December,  1961   a  gratification   other  than  legal      remuneration of an amount of 909

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    Rs. 75/-  through money  order from Shri Sachindra Deb,      remitted by  Shri Nikhil  Chakraborty  for  showing  in      exercise of  your official function, favour to the said      Sachindra Deb,  on the plea of securing service for the      said Sachindra  Deb and  thereby committed  an  offence      punishable under  Section 161  of the Indian Penal Code      and within the cognizance of this Court".      The charge states that accused was a public servant and that  he   accepted  a   gratification  other   than   legal remuneration of an amount of Rs.75/- from Nikhil Chakraborty for showing, in exercise of his official function, favour to Sachindra Deb  by securing service for Sachindra Deb. Before the accused  can be  held guilty of an offence under Section 161 of the Indian Penal Code, the following ingredients will have to be proved.           1.    The  the accused  at the time of the offence                was a public servant.           2.       That  he  accepted  from  some  person  a                gratification.           3.    That  such gratification  was  not  a  legal                remuneration due to him.           4.   That the  accused accepted  the gratification                as  a   motive  or  reward  for  one  of  the                following purposes:                (a)   doing or  forbearing to  do an official                     act;                (b)  showing or  forbearing to show favour or                     disfavour to some one in the exercise of                     his official functions                (c)  rendering or  attempting to  render, and                     service or  disservice to  someone, with                     the Central  or any  State Government or                     Parliament or  the  Legislature  of  any                     State, or with any public servant.      It is  not in dispute that the first three requirements are  satisfied,  namely,  that  the  accused  was  a  public servant, that  he accepted  a  gratification  and  that  the gratification was  not a  legal remuneration due to him. The contention that  was raised  by Mr.  Ramamurthy, the learned counsel appearing  for  the  accused,  is  that  the  fourth requirement has  not been  fulfilled. He  submitted that the prosecution  case   is  not   clear  as   to   whether   the gratification was accepted as a motive or reward for showing a favour in exercise of his official function or whether the gratification was  accepted for  payment to  another  public servant. In  order to  appreciate  the  contentions  of  the learned counsel it is necessary to state what has been found by the High Court against the appellant. 910      Nikhil Chakraborty was not examined as the summons sent to him  were  returned  unserved  on  the  ground  that  his whereabouts  are  not  known.  The  only  witness  that  was examined was  the person on whose behalf the money was sent, namely, Sachindra  Deb. Sachindra Deb turned hostile leaving the prosecution  with only  a few  documents to  rely on  to prove their  case. The documents relied on are Exhibits P-5, P-6, P-7  and P-3b. P-6 is the earliest in point of time. It is a  letter written by the accused to Nikhil Chakraborty on 23-11-61. The  letter acknowledges  an earlier  letter  from Nikhil Chakraborty.  It  refers  to  the  matter  about  the gentleman of  Kamalpur presumably  Sachindra Deb  and states that he  was given word that a job of social worker would be given. It  further states  that the recruitment will be done in the  last week  of December.  By that  letter the accused asked Nikhil  Chakraborty to  remit a sum of Rs. 80/- or Rs.

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90/- by  T.M.O. which  was to be given to the gentleman "who is Office  Head Clerk".  On receipt  of this letter, a money order  (Exhibit  P-5)  for  Rs.  75/-  was  sent  by  Nikhil Chakraborty on  31-11-1961  at  Agartala  Post  Office.  The accused signed  the money order form and received the money. The receipt  was received back at Kamalpur post office on 2- 12-1961. After  the receipt  of Rs.  75/- the  accused again wrote on  3-12-1961 (Exhibit  P-7) asking for the balance of Rs. 15/-  to be remitted. It is also indicated that in all a sum of  Rs. 150/-  will have  to be  given. The Courts below accepted the  prosecution case  that Exhibits  P-6, P-7 were written by  the accused,  and that  the money  order receipt (Exh. P-5)  was signed by him. The trial Judge also compared the signature  of the accused in Exh. P-5 and the writing in P-6 and  P-7 with  his admitted  signatures and  found  that exhibits P-6  and P-7  and the signature in Exh. P-5 were of the accused.  The learned counsel for the appellant does not question  the   correctness  of   these  findings.   It  is, therefore, clear that the accused under Exhibit P-6 demanded a sum  of Rs.  90/- for securing a job for Sachindra Deb and in response to that letter money order for Rs. 75/- was sent by Nikhil  Chakraborty and  received by  the accused.  Again under Exhibit P-7 on 3-12-1961 the accused had asked for the balance of  Rs. 15/-.  There can  be  no  doubt  that  these documents prove that the accused was a public servant at the relevant time  and received  an illegal  gratification which was not  due to  him as  legal remuneration. It is not clear from the  correspondence whether  the  person  "Office  Head Clerk"  is   a  public  servant.  But  the  learned  counsel appearing for  the State referred us to Exhibit P-3b another letter by  the accused to Nikhil Chakraborty dated 21-2-1962 wherein the  accused stated  that the recruitment to the job of the candidate had been postponed 911 due to  elections and  all appointments were stopped for the time being. This letter also refers to an order of the Chief Commissioner. It  is submitted  that the  internal  evidence furnished by  the appellant  and a  reading of these letters would show  that the  person to  whom the money was intended was a  public servant. On behalf of the State Government our attention was  drawn to the presumption that is available to the prosecution  under Section  4(1) of  the  Prevention  of Corruption Act  which provides that when it is proved in any trial of  an offence  punishable under  Section 161  of  the Indian Penal  Code, that  an accused person had accepted for himself or  for any other person, any gratification it shall be presumed  unless the  contrary is proved that he accepted that  gratification  as  a  motive  or  reward  such  as  is mentioned in  Section 161  or, as  the case  may be, without consideration or  for a  consideration which  he knows to be inadequate. The  explanation to  Section 161  states that  a person who  receives a  gratification as  a motive for doing what he does not intend to do, or as a reward for doing what he has  not done, comes within the words "A motive or reward for doing".      A  reading   of  Section  4(1)  of  the  Prevention  of Corruption Act  and Explanation to Section 161 of the Indian Penal Code  would show  that when  it  is  proved  that  the accused has  accepted a  gratification it  shall be presumed unless the  contrary is  proved that  he accepted  it  as  a motive or  reward such  as is mentioned in Section 161. This Section, therefore,  provides a presumption in favour of the prosecution. When  once it  is proved  that the  accused had accepted an illegal gratification, it shall be presumed that it is  for one of the purposes mentioned in Section 161. The

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Explanation to  Section 161 makes it clear that a person who receives a  gratification as a motive for doing what he does not intend  to do,  or as a reward for doing what he has not done comes  within the words "A Motive or reward for doing". Relying on  the two  provisions referred  to above,  it  was submitted by  the learned  counsel for  the State  that  the prosecution having  proved that  the accused have received a sum of  Rs. 75/-  as an  illegal  gratification,  the  Court should  presume   the  necessary  motive  or  reward  as  is mentioned in  Section 161.  While there can be no doubt that the submission  of the  learned counsel  for  the  State  is sound, we  find that there is one obstacle in the way of the prosecution succeeding on the facts of this case.      The charge  states that  the amount  of  Rs.  75/-  was remitted for  showing favour  in exercise  of  his  official function. It  is admitted  that though  the  accused  was  a public servant,  in exercise  of his  official  position  he could not secure a job which he promised. It 912 is not  the case  of the  prosecution  that  he  received  a gratification  but  he  had  no  intention  to  do  what  he promised. Equally,  it is not alleged in the charge that the gratification was  intended  for  being  paid  to  a  public servant. The  prosecution would  be entitled  to rely on the presumption  under   Section  4(1)   of  the  Prevention  of Corruption Act  and Explanation  to Section  161, IPC if the necessary averments  were made in the charge and the accused was  given  an  opportunity  to  explain  the  circumstances appearing  against   him.  While  the  charge  mentions  the gratification being  paid for  showing favour in exercise of his official  function, the  prosecution case  is  that  the gratification was  for inducing  a public  servant  to  show favour in  this respect.  It is,  no doubt,  true  that  the accused cannot  complain of  any defect in the charge, if he is not prejudiced. The accused when questioned under Section 342 of  the Criminal  Procedure Code, the purpose of receipt of the  gratification was  not put  to him  and  explanation asked for.  The second  question which relates to the charge is in the following terms:           "What have  you got  to say  regarding the  charge      brought  by   the  complainant’s   party  that  on  2nd      December, 1961  A.D. or  any time  near about that, you      received a  gratification other than legal remuneration      of an  amount of  Rs. 75/  by post  through Shri Nikhil      Chakraborty, from  one  Shri  Sachin  Deb,  giving  him      assurance of  securing a  service for  him. The accused      answered that it was false."      It was  not suggested that the money was intended to be paid to another public servant or that he retained the money without intending to do what he promised.      The wording  of the  charge framed by the Special Judge is that  the money  was remitted  by Nikhil  Chakraborty for showing, in  exercise of  official function, a favour to the said Sachindra  Deb on  the plea of securing service for the said Sachindra  Deb. The High Court understood the charge as meaning that  the money  was sent  by Nikhil  Chakraborty on behalf of  Sachindra Deb  as a  gratification  for  securing service for  the said  Sachindra Deb.  It appears  from  the charge and  from the  judgment of  the courts below that the courts proceeded  on the  basis that  the gratification  was received by  the accused  for showing  favour  as  a  public servant. As  the basis  of the  charge is entirely different from  what   is  sought   to  be   made  out  now  i.e.  the gratification was  paid to  the accused  for  influencing  a public servant,  it cannot  be said that the accused was not

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prejudiced by  the frame  of the  charge. It would have been open to  the prosecution  to rely  on the presumption if the charge was properly 913 framed and  the accused was given an opportunity to meet the charge which  the prosecution was trying to make out against the accused. On a careful scrutiny of the facts of the case, we are  unable to  reject the  contentions  of  the  learned counsel for the accused that he was prejudiced by the defect in the  charge and  that he  had no  opportunity to meet the case that is put forward against him.      In the  result, we accept the contention of the learned counsel for the appellant and allow the appeal and set aside the conviction and sentence imposed on him. S.R.                                         Appeal allowed. 914