Shiv Kumar Sharma vs The State Of Rajasthan

CRIMINAL APPEAL NO. 1050 OF 2022 [Arising out of Special Leave Petition (Criminal) No.2403 of 2017]

SHIV KUMAR SHARMA APPELLANT(S)

VERSUS

STATE OF RAJASTHAN RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. The appeal challenges the judgment and order dated

06.01.2017 passed by the learned Single Judge of the High

Court of Judicature for Rajasthan at Jaipur thereby

dismissing the appeal filed by the appellant/accused, which

was in turn filed thereby challenging the judgment and order

dated 24.10.2013 passed by the learned Special Judge,

Prevention of Corruption Act No. 1, Jaipur (hereinafter

referred to as “the Special Judge”), convicting the appellant

for the offences punishable under Section 13(1)(d)(ii) read

with Section 15 of the Prevention of Corruption Act, 1988

(‘PC Act’ for short) and under Section 477A of Indian Penal 2

Code, 1860 (“IPC” for short) and sentencing him to suffer

rigorous imprisonment for one year and a fine of Rs. 5000/­

each for both the offences.

3. The Special Judge, vide order dated 03.06.2004, framed

the following charges against the appellant:

“Firstly in the year 1994, on 25.04.1994 and around the same time, while working as public servant, you had conspired with the co­accused Bhagwan Sahai and in furtherance of that criminal conspiracy, you had received an advance of Rs. 15,000/­ out of the approved amount of Rs. 91,500/­ with regard to construction of rooms and varandha in the Primary School, Mankot and Bhagwan Sahai had submitted the work of Rs. 14,508/­ in three muster rolls and the voucher of construction material of Rs. 18,994/­ thereby informed the expenditure as Rs. 33,502/­ which was accepted at page No. 71 and 72 of M.B. No. 51 and mentioned as Rs. 34,580.13 by Shiv Kumar Sharma but later on, on complaint, the said amount of Rs. 34,580/­ was modified to Rs. 25,911/­.

In the same manner, in furtherance of the aforesaid criminal conspiracy, an advance of Rs. 28,000/­ was received out of the approved amount of Rs. 80,000/­ for construction of rooms and varandha in Primary School Surjanpur and Sh.

Bhagwan Sahai had shown the expenditure of Rs. 61,843.40 including the expenses of 7 muster rolls amounting to Rs. 36,552/­ and the voucher of construction amounting to Rs. 25,291.40. The said amount was entered by Sh. Shiv Kumar Sharma at page No. 71­72 of M.B. No. 51 as Rs. 68,776/­ but on complaint, the said amount of Rs. 3

68,776/­ was reduced to 45,582/­ by cutting. In the enquiry, only work worth Rs.

28,264.42 was found at Surjanpur and work worth Rs. 25,911/­ was found at Mankot and thus, you have shown the excess expenditure of labour and construction which was excess of Rs.

7,698/­ at Mankot and Rs. 16,644/­ at Surjanpur, totalling Rs. 22,353/­ for which the excess payment was made and wrongful loss was caused to the State Government and wrongful gain was received by you. You also created false record by cutting in the records. The said act of you being the public servant is a criminal offence. Thus, you have committed a punishable offence under section 417, 477A read with section 120B IPC and offence under section 13(1)(d)(2) of the Prevention of Corruption Act, 1988, for which I have taken cognizance.”

4. It appears that a complaint was made to the authorities

regarding malpractices in the construction of rooms and

varandha in Primary School, Mankot and Surjanpur. It was

the prosecution case that, in the Measurement Book with

regard to Mankot, the amount was reduced from Rs.

34,580/­ to Rs. 25,911/­ by the appellant after the

complaint was made. With regard to the construction work

at Surjanpur, after the complaint was made, the amount

was reduced to Rs.45,582/­ from Rs.68,776/­.

5. After the receipt of the complaint, Mr. Mahesh Prasad

Mathur was appointed as an Inquiry Officer. After

completion of inquiry, he submitted an inquiry report. On 4

the basis of the inquiry report, the crime came to be

registered. The chargesheet was filed. The appellant pleaded

not guilty and claimed to be tried. The learned Special

Judge, at the conclusion of the trial, convicted the appellant

as aforesaid. The appellant filed an appeal before the High

Court and the High Court confirmed the order of the learned

Special Judge. Hence the present appeal.

6. Mr. Ritesh Agrawal, the learned counsel appearing on

behalf of the appellant submits that both the High Court and

the learned Trial Court have grossly erred in not giving due

weightage to the evidence of PW­8 Mr. Mahesh Prasad

Mathur as well as PW14­Jai Bhagwan, the Investigating

Officer.

7. The learned counsel further submits that there is no

material to show that the appellant either had made any

demand or by abusing his position as a public servant, had

obtained for himself or any other person any valuable thing

or pecuniary advantage. It is submitted that in the absence

of any material to show that the appellant attempted to

obtain for himself or any other person any valuable thing or

pecuniary advantage, the conviction under Section 13(1)(d)(ii)

read with Section 15 of the PC Act was not tenable. He 5

further submits that for an offence punishable under Section

477A of the IPC, the prosecution is required to establish that

the alleged act was willful with an intent to defraud. It is his

submission that no such evidence has come up on record.

8. Learned counsel therefore, submits that the concurrent

orders of conviction are liable to be set aside and the accused

is entitled to be acquitted.

9. Dr. Manish Singhvi, learned Additional Advocate

General for the State of Rajasthan vehemently opposes the

appeal. He submits that the scope of interference in

concurrent findings of fact is very limited. He submits that

the learned Trial Court and the High Court, upon correct

appreciation of evidence, have found that the appellant had

manipulated the record with dishonest intention. He

submitted that only after the complaint was made to the

higher authorities, the appellant, in order to save his skin,

had manipulated the record and as such, the case clearly

falls under Section 477A of the IPC.

10. No doubt that the scope of interference in the

concurrent findings of the fact is very limited. Unless the

findings are found to be perverse or impossible, the Court

would refrain from interfering with the concurrent findings of 6

fact. However, it is settled that when the findings recorded by

the courts below are found to be recorded by ignoring the

material evidence or the appreciation of evidence is

manifestly erroneous, they would not come in the way of this

Court in interfering with the same.

11. For an offence punishable under Section 13(1)(d)(ii) read

with Section 15 of the PC Act, it is necessary to establish

that a public servant has attempted to obtain for himself or

for any other person any valuable thing or pecuniary

advantage. In the present case, no such material has come

on record. On the contrary, the evidence of PW14­Jai

Bhagwan, the Investigating Officer would clearly show that

the payment of the construction material was directly made

to the Gram Sewak by the Panchayat Samiti. It would further

reveal that the bill of the material was also directly sent to

Gram Sewak by the Panchayat Samiti. There was no

verification done by the appellant. It is clearly admitted that

the appellant was not aware of the amount paid to the Gram

Sewak with respect to the construction material. It is further

admitted that at the relevant time, there were around 100 to

125 panchayat works going on under the supervision of the

present appellant. It is further admitted that there was no 7

material placed on record to show that the corrections in Ex­

article­2 from Ex­P­22 to Ex­27 was made by the appellant

after the complaint. It will be relevant to refer to the following

part of deposition of PW14­Jai Bhagwan, the I.O.:

“I had not found any criminal charges against Shiv Kumar in my investigation report sent to the Headquarter and had only recommended for Departmental Enquiry. However, on the decision of the higher officials, charge sheet was filed.”

12. PW14 further admits that the amount paid by the

Panchayat Samiti was as per the amount corrected by the

appellant. It is further admitted that there was no evidence

to show that the accused Bhagwan Sahai and the appellant

had made corrections together. He further admits that Shiv

Kumar Sharma, that is the present appellant, had made a

complaint to the District Magistrate about the irregularity in

the construction work by Bhagwan Sahai, Gram Sewak.

13. These vital aspects that the appellant did not have any

role to play in either the sanctioning of the money or making

of payment, have been totally ignored by both the Courts.

The evidence that in the investigation, the Investigating

Officer had not found any criminal intent has also been

ignored. In that view of the matter, the conviction under 8 Section 13(1)(d)(ii) read with Section 15 of the PC Act is

totally unsustainable.

14. That leaves us with conviction under Section 477A of

the IPC. For a conviction under Section 477A of the IPC, it

is necessary for the prosecution to establish that the

making of false entry or omission or alternation of such

entries has been done willfully with an intent to defraud. No

such material has been placed on record by the

prosecution. On the contrary, the evidence of PW8­Mahesh

Prasad Mathur, who was appointed as an Inquiry Officer,

would show that the allegations made against the appellant

were not sustainable. It will be relevant to refer to the

deposition of PW8­Mahesh Prasad Mathur, which reads

thus:

“When I went on the spot to conduct enquiry then M.B. of Mankot and Surjpur was given to me. On the basis of which on dated 4.10 and 19.10.94 I had conducted enquiry after visiting the spot. On the instructions of C.O. I had prepared the difference detail on 17.2.95. At page No. 71,72 of the MB No. 51 (Article­2) the measurement have been recorded by the Jr. Eng. That was found correct upon my examination. Against this work of Rs. 25911/­ payment of Rs. 13422/­ was made as labour charges, which is entered in the MB from X to Y. I did not find any irregularity in the work of village Mankot. In case by mistake if any mistake is done in 9

the total of MB, then at the time of preparing bill on the basis of MB, this mistake can be corrected by the account branch. I had gone there three months after ending of the famine relief works. At that place (Surjanpur) for the supervision of the material of work, there was no person appointed. On the spot there was not watchman, in the absence of which if anyone would take the material lying there, I cannot say. The Patties which have been shown in the MB, the same were not found on the spot, therefore, I had noted about it in the Report. It is the responsibility of the Gram Sewak to get conducted the construction work. If the costs of Patties of Rs. 6914/­ would be included in my evaluation of Rs. 40267/­, then the valuation amount becomes Rs. 47181/­. Rs. 6914/­ the cost of patties is written according to BSR. When MB­51 (Article­2) was received to me, at that time due to mistake in total by J. En by cutting the amount of Rs. 59273/­ the amount 47183/­ has been marked, whereupon the J. En put his signatures. The payment of construction material was made to the Sarpanch of the Gram Panchayat, the agency which get conducted the work while the muster roll’s payment is made by the tehsil employees. The payment of construction material was made by the Panchayat.”

15. The above deposition would clearly show that the

measurements recorded by the appellant were found to be

correct by the Inquiry Officer. He clearly admits that he did

not find any irregularity in the work of village Mankot. He

further admits that if any mistake was done in the total of 10

Measurement Book at the time of preparing the bill, the

mistake could be corrected by the accounts branch.

16. PW8­Mahesh Prasad Mathur further admitted that in

so far as Surjanpur is concerned, no person was appointed

as a watchman or a supervisor. He admits that in the

absence of a watchman, it is possible that the material lying

at the site could be taken by anybody. He admits that even

the patties were not found on the spot and has noted about

the same in the report. He further admits that if the cost of

patties of Rs. 6914/­ were included in the valuation of Rs.

40,677/­ then the valuation comes to Rs.47,181/­.

17. PW8­Mahesh Prasad Mathur has further admitted that

the payment for the construction material was made directly

to the Sarpanch of the Gram Panchayat by the agency while

the muster roll’s payment was made by the tehsil

employees. Payment of the construction material was made

by the Panchayat. Thus, it could clearly be seen that the

appellant had no role whatsoever in either approving the

payment or making the payment.

18. The evidence of PW8­Mahesh Prasad Mathur would

clearly show that at the most, the act of the appellant could

be termed as irregular. However, there was nothing on 11

record to show that such irregularities were committed

willfully with an intent to defraud.

19. In that view of the matter, we find that even the

conviction in so far as Section 477A of the IPC is concerned,

is not sustainable in law.

20. Dr. Manish Singhvi, learned Additional Advocate

General for the State of Rajasthan has submitted that since

the findings of fact are concurrent, the Court should be slow

in interfering with the same.

21. It is settled principle of law that concurrent findings of

fact cannot be interfered with unless shown to be perverse.

Concurrency, after all, is no answer to perversity.

22. This Court in the case of Mahesh Dattatray

Thirthkar vs State of Maharashtra1 had laid down

certain principles when this Court is entitled to exercise

powers under Article 136 of the Constitution of India and

interfere with the findings of fact. One of the principles laid

down is thus:

“Where findings of subordinate courts are shown to be perverse or based on no evi­ dence or irrelevant evidence or there are ma­ terial irregularities affecting the said findings or where the court feels that justice has

1 (2009) 11 SCC 141 12

failed and the findings are likely to result in unduly excessive hardship.”

23. This Court in the aforesaid case has referred to some of

the earlier judgments of this Court on the issue. It will be

apposite to refer to the same, which are as under:

“29. Again in H.P. Admn. v. Om Prakash [(1972) 1 SCC 249 : 1972 SCC (Cri) 88] this Court while considering its power under Article 136 of the Constitution of India on the question of interference with the find­ ings of fact, observed as follows: (SCC p. 256, para 4) “4. In appeals against acquittal by special leave under Article 136, this Court has un­ doubted power to interfere with the findings of fact, no distinction being made between judgments of acquittal and conviction, though in the case of acquittals it will not or­ dinarily interfere with the appreciation of evi­ dence or on findings of fact unless the High Court ‘acts perversely or otherwise improp­ erly’.”

30. In Arunachalam v. P.S.R. Sadhanantham [(1979) 2 SCC 297 : 1979 SCC (Cri) 454] this Court while agreeing with the views ex­ pressed in the aforementioned decisions of this Court stated thus: (SCC p. 300, para 4) “4. … The power is plenary in the sense that there are no words in Article 136 itself qualifying that power. But, the very nature of the power has led the court to set limits to it­ self within which to exercise such power. It is now the well­established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a deci­ 13

sion shocks the conscience of the court. But, within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of fact, making no distinc­ tion between judgments of acquittal and con­ viction, if the High Court, in arriving at those findings, has acted ‘perversely or otherwise improperly’.” (emphasis supplied)

31. Again in State of U.P. v. Babul Nath [(1994) 6 SCC 29 : 1994 SCC (Cri) 1585] this Court observed as follows: (SCC p. 33, para 5) “5. At the very outset we may mention that in an appeal under Article 136 of the Consti­ tution this Court does not normally reap­ praise the evidence by itself and go into the question of credibility of the witnesses and the assessment of the evidence by the High Court is accepted by the Supreme Court as final unless, of course, the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evi­ dence on record.”

32. In Pattakkal Kunhikoya v. Thoopiyakkal Koya [(2000) 2 SCC 185] it was held (SCC p. 186c­d) that when an appeal arises under Article 136 of the Constitution of India, “[i]t is not the practice of the Supreme Court to reappreciate the evidence for the purpose of examining whether the finding of fact ar­ rived at by the High Court and the subordi­ nate court is correct or not. Exception can be taken only in the event of serious miscarriage 14

of justice or manifest illegality but not other­ wise”.

(emphasis supplied)

33. In Mithilesh Kumari v. Prem Behari Khare [(1989) 2 SCC 95] this Court has held (SCC p. 99) that where findings of subordi­ nate courts are shown to be “perverse or based on no evidence or irrele­ vant evidence or there are material irregulari­ ties affecting the said findings or where the court feels that justice has failed and the find­ ings are likely to result in unduly excessive hardship, the Supreme Court could not de­ cline to interfere merely on the ground that findings in question are findings of fact”.

(emphasis supplied)”

24. Recently, this Court in the case of Ashoksinh

Jayendrasinh vs. State of Gujarat2 had also held that

when the High Court has failed to appreciate the oral

evidence in correct perspective, this Court would certainly

be entitled to re­appreciate the evidence. In the said case

also, this Court, finding that the conviction was recorded

after ignoring the vital evidence, has set aside the order of

conviction and acquitted the accused.

25. In the present case, as discussed hereinabove, both the

Trial Court and the High Court have failed to take into

consideration the relevant and vital admissions in the

2 (2019) 6 SCC 535 15

evidence of PW8­Mr. Mahesh Prasad Mathur and PW 14­Jai

Bhagwan. In our view, the said admissions were vital.

Basing the order of conviction by ignoring the said vital

admissions, in our view, would bring the impugned

judgments in the realm of perversity.

26. As such, the appeal is allowed. The order of conviction

and sentence as recorded by the learned Special Judge,

Prevention of Corruption Act No.1, Jaipur and confirmed by

the High Court are quashed and set aside. The appellant is

acquitted of all the charges. The bail bonds stand

discharged.

27. Pending application(s), if any, shall stand disposed of.

……............... J.

(B.R. GAVAI)

…………..………………………............. J.

(PAMIDIGHANTAM SRI NARASIMHA) NEW DELHI 28th JULY, 2022