RAKESH KAPOOR versus STATE OF HIMACHAL PRADESH

Citation: [2012] 13 S.C.R. 148 · Decided: 22-11-2012 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
[2012] 13 S.C.R. 148 
RAKESH KAPOOR 
v. 
STATE OF HIMACHAL PRADESH 
(Criminal Appeal No. 1839 of 2012) 
NOVEMBER 22, 2012 
[P. SATHASIVAM AND RANJAN GOGOi, JJ.] 
Prevention of Corruption Act, 1988 - ss. 7 and 13(2) -
Prosecution under - Demand and acceptance of illegal 
C gratification - Conviction by trial court - High Court confirmed 
conviction uls. 13(2) while setting aside conviction u/s. 7 - On 
appeal, held: Conviction uls. 13(2) cannot be sustained in 
absence of the substantive charge uls. 13(1)(a) and also in 
view of acquittal u/s. i' - Conviction is also not sustainable in 
o view of lacuna in the prosecution case as regards demand of 
the bribe - Accused is entitled to benefit of doubt and hence 
. 
. 
acqwtted. 
The appellant-accused was prosecuted u/ss. 7 and 
13(2) of Prevention of Corruption Act, 1988. The 
E prosecution case was that the accused had demanded 
money from PW1-complainant for granting licence to run 
his hotel by a telephone call. PW-1 made a complaint to 
the police. The police laid a trap. PW-3 was the shadow 
witness. The accused was charged uls. 7 and 13(2) of the 
F Act. The treated currency notes were recovered from the 
accused. Trial Court convicted him u/ss. 7 and 13(2) of 
the Act. High Court set aside the conviction u/s. 7 and 
confirmed the conviction u/s. 13(2). Hence the present 
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appeal. 
Allowing the appeal, the Court 
HELD: 1. The criminal misconduct which is defined 
in Section 13(1)(a) of Prevention of Corruption Act, 1988 
H 
148 
RAKESH KAPOOR v. STATE OF HIMACHAL 
149 
PRADESH 
has not been included in the charge. In such a 
A 
circumstance, the accused lost an important opportunity 
to defend himself, particularly, when he was acquitted u/ 
s. 7 of the Act. In the light of the undisputed factual 
position that conviction of the appellant u/s. 7 has been 
set aside by the High Court and in the absence of any 
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appeal by the State against such acquittal and 
substantive charge u/s.13(1 )(a), the conviction u/s.13(2) 
cannot be sustained. [Para 9) [157-G-H; 158-A-B] 
Joseph Kurian Philip Jose vs. State of Kera/a (1994) 6 C 
SCC 535: 1994 (4) Suppl. SCR 122; Wakil Yadav and Anr. 
vs. State of Bihar (2000) 10 SCC 500 - relied on. 
2.1 Except the oral testimony of PWs 1 and 3, there 
is no other proof in respect of the demand of bribe 
money and the 1.0. could not collect the telephone call 
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details from the department concerned. Accordingly, 
there is no material/evidence for the demand of bribe. 
Even the official witness, who helped in the search of the 
accused, was examined as PW-14 but did not support the 
prosecution case and turned hostile. In the absence of 
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the demand and acceptance, the accused is entitled to 
the benefit of doubt. [Para 11) [159-E-H 160-A] 
Banarsi Dass vs. State of Haryana (2010) 4 SCC 450: 
2010 (4) SCR 383 - relied on. 
C.M. Girish Babu vs. CBI (2009) 3 SCC 779: 2009 (2) 
SCR 1021; Suraj Mal vs. State (Delhi Admn.) (1979) 4 SCC 
725 - referred to. 
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2.2 Another important aspect which is in favour of the 
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appellant accused is that the order, namely, granting 
licence in favour of PW-1 - the complainant was made 
ready before the alleged occurrence. When the order 
itself was ready and available that too in the hands of the 
complainant, the demand of the accused as claimed by 
H 
150 
SUPREME COURT REPORTS 
[2012) 13 S.C.R. 
A the prosecution is highly improbable. This aspect has 
also not been properly explained. [Para 12] [160-A-B, C] 
2.3 Thus in view of the lacunae in the prosecution 
case, by giving the benefit of doubt to the accused, the 
B judgment of the High Court and the trial Court is set aside 
and the accused is acquitted of the remaining offence 
under Section 13(2) of the Act. [Para 13] [160-D] 
c 
D 
Case Law Reference: 
1994 (4) Suppl. SCR 122 relied on 
Para 7 
(2000) 1 o sec 500 
relied on 
Para 8 
2010 (4) SCR 383 
relied on 
Para 10 
200~ (2) SCR 1021 
referred to 
Para 10 
(1979) 4 sec 125 
referred to 
Para 10 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 1839 of 2012. 
E 
From the Judgment & Order dated 08.09.2011 of the High 
Court of Himachal Pradesh at Shimla in Cr. Appeal No. 713 
of 2008. 
Parag P. Tripathi, Kunal Bahri, Mukesh Anand, Suresh 
F Chandra Tripathy for the Appellant. 
G 
H 
Kiran Bala Sahay, Mohit Kumar Shah for the Respondent. 
The Judgment of the Court was delivered by 
P. SATHASIVAM, J. 1. Leave granted. 
2. This appeal is directed against the final judgment and
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