Allowed

Subhash Chandra Sharma v. State of U.P.

Allahabad HC8 May 2023BAIL/17168/2023

Case brief

AI extract

What is this about?

In a bail application under Section 7 of the Prevention of Corruption Act, 1988, the High Court observed that the prosecution failed to satisfy the 'demand and acceptance' acid test. The catch was delayed until after the applicant's arrest. Consequently, the bail was allowed subject to strict compliance conditions regarding court attendance and no adjournments.

What did the court decide?

Applicant Subhash Chandra Sharma released on bail with personal bond and two heavy sureties subject to strict conditions regarding attendance and conduct.

Subhash Chandra Sharma Vs State of U.P. — Corruption | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:98090

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Court No. - 49

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17168 of 2023

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Applicant :- Subhash Chandra Sharma Opposite Party :- State of U.P. Counsel for Applicant :- Anil Kumar Counsel for Opposite Party :- G.A.,Vikrant Rana

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Hon'ble Rajeev Misra,J.

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Heard Mr. V.P. Srivastava, the learned Senior Counsel assisted by Mr. Anil Kumar Shukla, the learned counsel for applicant, the learned A.G.A. for State and Mr. Vikrant Rana, the learned counsel representing complainant.

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Perused the record.

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This application for bail has been filed by applicant-Subhash Chandra Sharma seeking his enlargement on bail in Case Crime No. 0055 of 2023, under Section 7 Prevention of Corruption Act, 1988, Police Station-Kavi Nagar, District-Ghaziabad during the pendency of trial.

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Record shows that in respect of an incident which is alleged to have occurred on 19.01.2023, a prompt FIR dated 19.01.2023 was lodged by first informant-Inspector Ashok Kumar Sharma and was registered as Case Crime No. 0055 of 2023, under Section 7 Prevention of Corruption Act, 1988, Police StationKavi Nagar, District-Ghaziabad. In the aforesaid FIR, applicant has been nominated as the solitary named accused.

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The gravamen of the allegations made in the FIR is to the effect that applicant is alleged to have raised demand of Rs. 1,00,000/- for clearing the final bill of the contractor namely Anuj Kumar Gupta. The said fact was complained of by the complainant i.e. Rahul Kumar Gupta in whose favour the power of attorney was executed by the contractor only on 16.01.2023. Accordingly, the Anti Corruption Organization laid a trap on 19.01.2023. The applicant was caught red handed with cash of Rs. 1,00,000/- on 19.01.2023.

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Mr. V.P. Srivastava, the learned Senior Counsel assisted by Mr. Anil Kumar Shukla, the learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in aforementioned case crime number. Allegations

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made in the FIR are false and concocted. As such, applicant is being falsely prosecuted.

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It is then contended that applicant is working as a Junior Engineer in the department of Rural Engineering, Government of U.P. The contractor-Anuj Kumar Gupta was allotted a contract for some civil work. The estimate of the contract was said to be Rs. 17,59,000/-. Aa sum of Rs. 14,00,000/- was already paid to the contractor on 31.05.2022. With regard to the balance payment, it is submitted by the learned Senior Counsel that since the final payment can be made only after the proper calculations have been made, deductions have also been made towards G.S.T. and after approval has been accorded by the State Government, it cannot be said that demand as alleged would have been made by applicant. However, irrespective of above, the contractor was pressing for release of the balance amount of payment.

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According to the learned Senior Counsel, the balance amount of only Rs. 2,59,000/- was pending. It is in respect of the said balance amount that it is alleged by the complainant that a sum of Rs. 1,00,000/- was demanded by the applicant. However, up to this stage, there is nothing on record to suggest that the aforesaid formalities were completed before the date of the trap. On the above premise, he submits that the prosecution story as unfolded in the FIR is highly improbable.

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He has then invited the attention of the Court to the provisions contained in Section 7 of the Prevention of Corruption Act and on basis thereof, he contends that in order to invoke the provisions of Section 7 of the Prevention of Corruption Act, the acid test contemplated therein "Demand and Acceptance" as explained by the Constitution Bench in Neeraj Dutta Vs. State (NCT of Delhi) 2022 OnLine SC 1724 is required to be satisfied before an inference of guilt can be drawn. However, it cannot be concluded conclusively that the said test as referred to above is satisfied in the present case. It does not stand to reason that a person for payment of Rs. 2,59,000/- will pay a sum of Rs. 1,00,000/- towards commission.

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According to the learned Senior Counsel, the complaint has not been made by the original contractor but by the alleged power of attorney, in whose favour, the alleged power of attorney was executed a day earlier i.e. on 16.01.2023 whereas the complaint was made on 17.01.2023. Applicant is in jail since 19.01.2023. As such, he has been under incarceration for almost 3 and 1/2 months. The charge sheet has already been submitted. As such, the evidence sought to be relied upon by

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the prosecution now stands crystallized. Up to this stage, no such circumstance has emerged, on the basis of which it can be urged that custodial arrest of applicant is absolutely necessary during the course of trial. Even otherwise, applicant is a government servant and there are no chances of his running away from the trial or not co-operating with the trial.

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On the cumulative strength of above, the learned Senior Counsel contends that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. has opposed the present application for bail. He submits that on the complaint made by the complainant, a trap was laid by the Anti Corruption Cell and the applicant was recovered with cash of Rs. 1,00,000/-. The chemical test in respect of the recovery also proves the same. Up to this stage, no such circumstance has emerged, on the basis of which, the recovery itself can be doubted. Moreover, as per the submission urged by the learned Senior Counsel it cannot be inferred that no demand was made by the applicant to clear the pending dues of the contractor, Anuj Kumar Gupta. On the cumulative strength of above, he contends that applicant does no deserve any indulgence by this Court.

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Mr. Vikrant Rana, the learned counsel representing the complainant has also opposed the present application for bail. He has referred to various documents on record and on the basis of same bona-fide of the applicant has been doubted. He submits that the pending arrears of the contractor have been released subsequently i.e. after the applicant was taken into custody. This circumstance goes against the bona-fide of the applicant. As such, the bail application is liable to be rejected.

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In rejoinder, Mr. V.P. Srivastava, the learned Senior Counsel has contradicted the submission urged by the learned A.G.A. as well as Mr. Vikrant Rana, the learned counsel representing the complainant. He submits that up to this stage, the prosecution has not brought any document to show i.e. subsequently document was prepared by another employee of the department to ensure the pending payment of the contractor. There is also no denial of the fact that before the clearance of the final bill, correct calculations have to be finally made, the deductions towards G.S.T. have to be made and the approval of the State Government has to be obtained. In the absence of any denial of the said fact, the alleged demand alleged to have been made by the applicant is not liable to be accepted. In view of above, the acid test required to be satisfied for invoking the provisions of Section 7 of the Prevention of Corruption Act is not satisfied.

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As such, applicant is liable to be enlarged on bail.

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It is then contended that mere possession of money will not ipso-facto lead to the conclusion that an offence under Section 7 of the Prevention of Corruption Act is made out. Reference in this regard is made to the following judgments:

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(i). State of M.P. Vs. Madan Mohan Lal Varma (2013) 14 SCC 153.

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(ii). C. Sukumaran Vs. State of Kerala (2015) 11 SCC 314.

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(iii). Prabhat Kumar Gupta Vs. State of Rajasthan (2014) 14 SCC 516.

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(iv). M.R. Purushottam Vs. State of Karnataka (2015) 3 SCC 247.

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(v). B. Jayraj Vs. State of A.P. (2014) 13 SCC 55. (vi). G. Hariharnath Rao Vs. State of A.P. (2014) 13 SCC 44. (vii). Satvir Vs. State of Delhi (2014) (13) SCC 143.

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(viii). State of A.P. Vs. P. Venkateshwarlu (2015) 7 SCC 283.

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Learned Senior Counsel at this stage has invited the attention of the Court to the document occurring at page 27 of the rejoinder affidavit to show that the demand regarding payment of pending bill was made by the contractor himself only on 20.01.2023 i.e. after the trap had taken place.

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Having heard, Mr. V.P. Srivastava, the learned Senior Counsel for applicant, the learned A.G.A. for State, Mr. Vikrant Rana, the learned counsel representing complainant and on perusal of record, evidence on record, complicity of accused, accusation made coupled with the fact that total bill of the contractor was Rs. 17,59,000/-, out of said amount, a sum of Rs. 14,00,000/- was already paid on 31.05.2022, the remaining amount of Rs. 2,59,000/- was to be paid only after the final calculations were made, deductions towards G.S.T. was also made and the approval of the State Government was obtained, there being nothing on record put forward by the learned A.G.A. and the learned counsel representing complainant to contradict the same, the applicant being in jail since 19.01.2023, the charge sheet having been submitted against applicant, therefore, the evidence sought to be relied upon by the prosecution now stand crystallized, there being no such circumstance pointed out by the prosecution, necessitating the custodial arrest of the applicant during course of trial, the

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judgment of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 6), the fact that the demand with regard to payment of pending amount was made by the original contractor only on 20.01.2023 with the department i.e. subsequent to the arrest of applicant, prima-facie the acid test required to be satisfied for invoking the provisions contained in Section 7 of the Prevention of Corruption Act as explained by the Constitution Bench as noted above, being not satisfied against applicant, but without making any comments on the merits of the case, applicant has made out a case for bail.

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18. Accordingly, the bail application is Allowed .

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Let the applicant-Subhash Chandra Sharma, be released on bail in aforesaid case crime number on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

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(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.

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(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE

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EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 8.5.2023 Vinay

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Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad

Subhash Chandra Sharma v. State of U.P.

Case brief

What is this about?

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Subhash Chandra Sharma v. State of U.P.

Case brief

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