Rameshchanda Borwal vs The State Of Madhya Pradesh

This common judgment shall govern disposal of CRA No.960/2010, CRA No.982/2010, CRA No.997/2010, CRA No.1002/2010, CRA No.1008/2010, CRA No.1020/2010, CRA No.1049/2010 & CRA No.1036/2010, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 challenging the impugned common judgment of conviction and order of sentence dated 12.08.2010 passed by the First Additional Sessions Judge (Special Judge under the Prevention of Corruption Act), Indore, in Special Case No. 22/2004.

Vide the impugned judgment, the learned trial court has convicted the appellants for the commission of an offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Consequently, each appellant has been sentenced to undergo rigorous imprisonment for two years with fine of Rs. 10,000/-, with a default stipulation to suffer additional rigorous imprisonment for six months.

The appellants have approached this Court seeking the setting aside of the impugned judgment and an honorable acquittal from all the charges. As all these appeals arise out of the same crime, involve an identical factual matrix, and challenge the very same impugned judgment, they have been heard analogously and are being disposed of by this common judgment.

The facts of the prosecution case, briefly stated, are that in the year 1998, a decision was taken by the Madhya Pradesh Government for the recruitment of 207 Shikshak Karmi Grade-III posts in the Sanwer Janpad Panchayat. Following the advertisement, a total of 2539 applications were received, which were duly entered in a category-wise register. Thereafter, a merit list was prepared, and candidates numbering three times the available vacancies were called for the interview process.

Accordingly, 1796 candidates appeared for the interviews conducted by the selection committee between 27.06.1998 and 18.07.1998. Based upon the marks obtained in the interview, a final merit list was drawn, resulting in the selection of 207 candidates. Subsequent to the culmination of this selection process, the Special Police Establishment (Lokayukta), Indore, received information regarding alleged corruption and nepotism in the recruitment of the said Shikshak Karmis.

Based on this information, a preliminary inquiry was conducted, leading to the registration of a FIR. During the investigation, it was alleged that selection committee members Mukesh Chauhan, Ramesh Borwal, and Manohar Patel directly abused their official positions by awarding full 15 marks to their respective relatives, thereby securing their employment in violation of Section 40(c) of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993.

The prosecution further alleged that the other members of the selection committee, namely Sohanlal Patel, Kesar Singh, Omprakash Yadav, and Prahlad Dabi, along with the Chief Executive Officer Ashok Pandey and the Block Education Officer Vijay Rege, misused their positions. It was alleged that they illegally assisted in the selection of the relatives of the aforementioned members by identically awarding them maximum marks.

Upon completion of the investigation, sanction for prosecution was obtained from the Law Department against Ashok Pandey and Vijay Rege, they being public servants. No such sanction was necessitated for the other elected members as their tenure in the Janpad Panchayat had expired. A charge-sheet was subsequently filed against all the accused under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, and Section 109 of the Indian Penal Code, 1860. The trial court framed the charges, recorded evidence, and ultimately passed the impugned judgment of conviction.

For the sake of clarity and to systematically address the specific roles assigned to the appellants, their contentions are categorized under three distinct heads.

Learned counsel for the appellants Ashok Kumar Pandey and Vijay Rege submit that the appellants acted merely as executive officers and subject experts. It is an admitted position that none of their relatives appeared in the selection process. It is submitted that the trial court erroneously invoked Section 40 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, against them, despite the fact that this provision was not even mentioned in the charge framed under Section 211 of the Cr.P.C.

It is further argued that the essential ingredients of "criminal misconduct" under Section 13(1)(d) of the Act are completely absent. Relying upon the judgments of the Hon'ble Supreme Court in C.K. Jafar Sharif v. State CRA No. 1804/2012 decided on 09/11/2012 and M. Narayan Nambiar v. State of Kerala,1962 SCC Online 85 it is contended that a mere administrative violation or error of judgment without a dishonest intention or pecuniary advantage cannot constitute an offence. The Investigating Officer M.C. Sharma (PW-36) categorically admitted in his cross-examination that there was no complaint of bribery or pecuniary advantage against these appellants.

The learned counsel also points out that the trial court ignored the fatal defect in the prosecution sanction (Ex. P/1). The Sanctioning Authority was not examined to prove that the sanction was granted after an independent application of judicial mind to the relevant material. Furthermore, appellant Vijay Rege took the additional charge of BEO midway on 29.06.1998 and was not even named in the initial FIR.

Contentions on behalf of Mukesh Chauhan, Ramesh Borwal, and Manohar Patel (Whose relatives appeared in the examination)

Learned counsel for these appellants submit that the marks awarded to the candidates were strictly based on their individual merit and competency in the interview. It is heavily emphasized that the prosecution failed to produce any written rule, gazette notification, or government circular that mandated the selection committee members to submit a declaration stating that their relatives were participating in the interview.

It is further submitted that the Inquiry Officer Shriram Tamrakar (PW-2) clearly admitted in his cross-examination that he did not quote or rely upon any rule requiring such a declaration. Even the independent subject experts on the committee Smt. Sandhya Dalvi (PW-15) and Sunil Dubey (PW-27), awarded high average marks to these candidates, proving that the candidates were meritorious.

The learned counsel contends that the entire prosecution case is based on presumptions. A large number of the complainant witnesses and selected candidates completely turned hostile before the trial court and did not support the prosecution story. Consequently, convicting the appellants on mere suspicion, without establishing any corrupt motive, is contrary to settled legal principles.

Contentions on behalf of Appellants Sohanlal, Kesar Singh, Omprakash Yadav and Prahlad Dabi (whose relatives did not appear in the examination)

Learned counsel for these appellants submit that it is undisputed that none of their relatives appeared in the examination. The trial court convicted them solely on the presumption of a criminal conspiracy, alleging that they awarded 15 out of 15 marks to the relatives of the other committee members to facilitate their selection.

It is vehemently argued that the documentary evidence relied upon by the trial court, specifically File No.9 and the chart Ex. P/62, is entirely unreliable and tampered with. It is pointed out that the original marks awarded (such as 0, 3, or 6) were obscured using a whitener, and '15' marks were superimposed. The prosecution failed to examine any handwriting expert or produce a Forensic Science Laboratory (FSL) report to establish the author of these superimposed marks.

It is further submitted that the preliminary inquiry report (Ex. P/2) is a tainted document. The Inquiry Officer (PW-2) admitted that he prepared the report while sitting in the Lokayukta Police Office over a period of 6-7 months, acting on the dictate of the police. Furthermore, appellant Prahlad Dabi did not even sign the final selection proceedings dated 21.08.1998. The allegation against appellant Sohanlal regarding a recommendation letter (Ex. P-30) does not prove any conspiracy, as the final selection was a collective decision of the committee.

Per contra, the learned counsel for the respondent/State strongly opposes the appeals and supports the impugned judgment. It is submitted that the trial court has rightly appreciated both the oral and documentary evidence on record. It is argued that the identical and uniform awarding of full 15 marks by the committee members to each other's relatives is not a mere coincidence.

The State further contends that such a pattern clearly establishes a prior meeting of minds and a criminal conspiracy among the accused to misuse their official positions for mutual benefit. It is submitted that the failure to declare the participation of their relatives is a clear violation of public policy and Section 40(c) of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. Therefore, the prosecution has successfully proved the charges, and the conviction and sentence warrant no interference.

This Court has given anxious consideration to the rival submissions advanced by the learned counsel for the parties and meticulously perused the record of the trial court.

Based upon the material on record and the directions applicable to this matter, the following issues arise for determination:

Before adverting into the factual matrix, it is imperative to outline the essential ingredients of the offence under Section 13(1)(d) of the Prevention of Corruption Act. The law in this regard has been settled by the Hon'ble Supreme Court in the case of Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731, wherein it is held:

Based on these parameters, this Court will now examine the findings recorded against the appellants under the three respective categories.

The trial court convicted appellant Ashok Kumar Pandey by relying on Section 40(c) of the Adhiniyam, 1993, holding that as being the CEO, he failed to ensure transparency. This is a manifest error of law. The statute prohibits office-bearers from using their position to secure employment for their own relatives. It is an admitted fact that neither Pandey’s nor Rege’s relatives were candidates in the selection process.

The rules did not explicitly mandate the CEO or BEO to extract a "no-relative" declaration from other committee members, nor did they prescribe a rigid sub-classification of the 15 interview marks. The failure of the Selection Committee to categorically bifurcate the interview marks into five sub-heads is, at worst, an administrative deviation or a collective procedural infraction, not a penal offence. An administrative omission to create a procedure not mandated by the rules cannot be stretched to infer a criminal conspiracy.

Both Pandey and Rege were executive officials and subject experts who awarded varied, independent marks (ranging from 10 to 14) to the candidates based on their performance, which was entirely distinct from the blanket '15/15' awarded by the members. Imposing vicarious criminal liability upon the CEO and BEO for the independent scoring patterns of the other committee members is legally impermissible. Furthermore, appellant Vijay Rege was primarily the Principal of a High School, given the additional charge of BEO midway through the process. Penalizing him for procedural lapses of a committee operating collectively is a gross miscarriage of justice.

Crucially, the interview committee was not exclusively constituted by the present accused, it functioned as a collective administrative body comprising other independent members. The prosecution itself examined two independent subject experts on the committee, Smt. Sandhya Dalvi (PW-15) and Sunil Kumar Dubey (PW-27). PW-27 categorically testified that he faced no pressure to award marks to any candidate, he did not know the candidates, and the selection process was conducted with complete transparency.

The trial court erroneously circumvented this evidence of innocence by reasoning that PW-15 and PW-27 could only speak for themselves. This flawed judicial logic weakens the prosecution's theory of a pre-planned criminal conspiracy. If the independent experts on the identical committee found the process transparent and free of coercion, the allegation that the entire committee functioned as a corrupt syndicate falls flat. The prosecution cannot disown the testimony of its own independent witnesses.

Adverting to the pivotal issue of the sanction for prosecution for these public servants, the protection accorded under Section 19 of the Prevention of Corruption Act is a substantive safeguard designed to filter out frivolous prosecutions. Upon examining the sanction order (Ex. P/1) on record, this Court observes that the sanctioning authority appears to have acted mechanically, without independent application of mind to the relevant evidentiary material. Cognizance taken on the basis of such a defective and mechanically issued sanction vitiates the trial proceedings ab initio.

Finally, this Court must highlight the fatal collapse of the prosecution's foundational evidence. As noted by the trial court itself, nearly every key complainant and candidate (PW-3 to PW-9, PW-14, PW-18, PW-21, PW-22, PW-28, PW-31 to PW-35) turned hostile during the trial. They categorically denied making complaints or testified that their signatures were obtained under the direction of Lokayukta Police officers. When the makers of the complaints disown the very foundational documents, the genesis of the prosecution's case is rendered highly suspicious. The trial court’s approach of brushing aside the mass opposition of the prosecution’s own witnesses and convicting solely on the basis of disputed secondary documentary evidence is contrary to established principles of criminal jurisprudence.

The trial court convicted these appellants primarily because they did not declare their relationships with the candidates, holding that this violated Section 40(1)(c) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. Upon perusal of the record, this Court finds that the prosecution has wrongly mixed an administrative fault with a criminal offence. The standard required to prove a departmental lapse is completely different from the strict proof required in a criminal trial.

If a panchayat member uses their position to get a job for a relative, they can be removed from their post under the Panchayat Act. But this action does not automatically make it a crime under the Prevention of Corruption Act. For a criminal conviction, the prosecution must prove that the accused had a clear dishonest intention and actually took a bribe or financial reward.

A careful look at the evidence shows no proof that the appellants asked for or received any money or financial gain. Favoring family members is wrong and can lead to strict departmental action, but it is not enough to prove a crime under Section 13(1)(d) of the Act. Without proof of illegal financial gain, the criminal charge fails.

Also, the investigating officer, M.C. Sharma (PW-36), clearly admitted in court that he did not find any written rule or government order asking committee members to give a "no-relative" declaration. Since there was no such rule in place, failing to give a declaration cannot be treated as a criminal act.

Giving marks in an interview is a matter of personal judgment. The prosecution did not bring any proof to show that the selected candidates were unfit or lacked merit for the job. In fact, independent subject experts on the committee, Smt. Sandhya Dalvi (PW-15) and Sunil Kumar Dubey (PW-27), also gave good marks to these candidates based on their performance, without any pressure from the appellants.

The documents used by the police to prove the family relationships are also legally weak. The police relied on voter lists (Ex. P/34-2 to P/34-9) and family registers. However, the Tehsildar (PW-20) admitted during questioning that he could not verify these documents because the police only showed photocopies, not the original records.

To make matters worse for the prosecution, all the independent village witnesses brought to prove these family relationships turned hostile. Key witnesses like Sarpanch Kudrat (PW-11), Sarpanch Radheshyam (PW-12), Village Assistant Mehfooz Khan (PW-13), Sarpanch Koksingh (PW-19), and Sarpanch Parvatibai (PW-23) refused to support the police story. It is highly unsafe and against the law to convict the appellants based only on unverified photocopies when the main witnesses have turned hostile

The trial court convicted these appellants by invoking the charge of criminal conspiracy, reasoning that they aided the common design by uniformly awarding 15 out of 15 marks to the relatives of the other committee members. It is an admitted position that none of the relatives of these specific appellants appeared as candidates. It is a well-settled proposition of law that a mere coincidence of acts is insufficient to establish a criminal conspiracy; there must be incontrovertible proof of a consensus or a prior meeting of minds.

The prosecution failed to adduce any direct evidence, oral or documentary, demonstrating a criminal conspiracy. Suspicion, however grave, cannot take the place of legal proof. The trial court heavily relied upon file No.9 and the tabulation chart (Ex. P/62) to conclude that marks were manipulated. However, the record shows that original marks (such as 0, 3, and 6) were obscured using a whitener, and '15' marks were superimposed.

In the considered opinion of this Court, a document bearing such unexplained material alterations is highly suspect and inherently unsafe to base a criminal conviction upon. The prosecution failed to examine any handwriting expert or adduce a Forensic Science Laboratory (FSL) report to establish the author of the superimposed marks or the person who applied the whitener. Ascribing these alterations to the appellants without forensic backing constitutes a fatal lacuna in the prosecution's case.

Moreover, a bare perusal of the cross-examination of the prosecution's star witness, Inquiry Officer Shriram Taskar (PW-2), demolishes the sanctity of the preliminary inquiry report (Ex. P-2). PW-2 categorically admitted in paragraphs 26 and 27 that the inquiry was not conducted at the Janpad Panchayat office, nor were the records procured directly from the parent department. He admitted that the report was prepared while sitting in the Lokayukta Police Office, Indore, over a period of 6-7 months, based entirely on records supplied by the prosecuting agency itself. Consequently, Ex.P-2 is a tainted document, prepared under the police pressure making it untrustworthy.

The adverse finding recorded against appellant Sohanlal on the ground that he received a recommendation letter (Ex. P-30) from one Vipin Khujneri (PW-17) is legally unsustainable. Public functionaries routinely receive such communications. The appointment was a collective decision of a multi-member body, and fastening individual criminal liability upon one member merely for being the recipient of a letter is a gross misapplication of the law. Furthermore, the trial court erred in ignoring the substantive defense of appellant Prahlad Dabi, who admittedly did not sign the final selection proceedings dated 21.08.1998, thereby leaving the chain of conspiracy incomplete qua him.

Based on all the facts and evidence discussed above, this Court concludes that the prosecution has not provided enough proof to show the accused are guilty. The case has too many missing links. The prosecution could not prove any dishonest intention, the permission to prosecute was legally wrong, the documents used were tampered photocopies, and the main witnesses refused to support the police story. Because of these serious doubts, the trial court's decision in Paragraphs 58 to 93 is legally incorrect and must be set aside. Furthermore, interestingly none of the selected candidates/beneficiaries were terminated from the service and allowed to continue in as much as many of the selected candidates have also attained superannuation.

Consequently, the appellants are entitled to the benefit of doubt. Accordingly, all the Criminal Appeals are hereby allowed.

The impugned judgment of conviction and order of sentence dated 12.08.2010 passed by the First Additional Sessions Judge (Special Judge under P.C. Act), Indore, in Special Case No. 22/2004 qua the appellants is hereby set aside.

The appellants are acquitted of all the charges leveled against them. Their bail bonds shall stand discharged. The fine amounts, if already deposited by the appellants, shall be refunded to them. Record of the trial court be sent back immediately along with a copy of this judgment for information and necessary compliance.

Let a copy of this judgment be placed in the record of each of the connected criminal appeals.