Shivprasad Kuldeep (Dead) ... vs State Of Chhattisgarh
2021 Latest Caselaw 206 Chatt

                                                                                                 AFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                              Criminal Appeal No.829 of 2003

                           Judgment Reserved on :               4.3.2021

                           Judgment Delivered on :              9.6.2021

Shivprasad Kuldeep, son of Late Prem Lal Kuldeep, aged about 42 years,
occupation Beat Guard, Village Naragawon, Tahsil Gurur, District Durg, R/o
Village - P.O. - Singhola, Thana Dondi, Tahsil Balod, District Durg,
Chhattisgarh ---Dead, Represented Through His Legal Heirs, namely,--

   1. Pramod Kumar, S/o Late Shiv Prasad Kuldeep, aged about 31 years,
   2. Ashish Kumar, S/o Late Shiv Prasad Kuldeep, aged about 27 years,
   3. Sandeep Kumar Kuldeep, S/o Late Shiv Prasad Kuldeep, aged about
       29 years,
       All residents of Village Singhola, P.S. Dondi, Tahsil Balod, District
       Balod
   4. Smt. Rekha Lohle, W/o Lilesh Kumar Lohle, aged about 26 years, R/o
       271, Durga Chowk, Ward No.6, Gurur, District Balod, Chhattisgarh,
       491227
                                                                ---- Appellant
                                    versus
State of Chhattisgarh through Special Police Establishment Lokayukta Office,
Raipur Division, Raipur, Chhattisgarh
                                                             --- Respondent

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For L.Rs. of Appellant : Shri Vivek Sharma, Advocate For Respondent : Shri H.S. Ahluwalia, Deputy Advocate General

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. During pendency of the instant appeal, the Appellant died. By

order of this Court dated 5.12.2019, his above-named 4 legal

representatives have been brought on record.

2. The appeal has been preferred against judgment dated 16.7.2003

passed by First Additional Sessions Judge and Special Judge,

Durg in Special Case No.1 of 2000, whereby the Appellant (dead)

was convicted and sentenced as under:

Conviction Sentence

Under Section 7 of the Rigorous Imprisonment for 6 Prevention of Corruption months and fine of Rs.500 with Act, 1988 (henceforth 'the default stipulation PC Act') Under Section 13(1)(d) Rigorous Imprisonment for 1 read with Section 13(2) of year and fine of Rs.500 with the PC Act default stipulation

Both the jail sentences are directed to run concurrently

3. Prosecution case, in short, is that at the relevant time, the Appellant

was posted as a Beat Guard in the forest situated at Village

Naragaon. Complainant Ashok (PW3), a resident of the said village

had demolished his old house and raised a new construction there.

For raising the new construction, he had purchased some wood

from a government depot and some wood was used by him

available from his old demolished house. The Appellant/Beat

Guard told Complainant Ashok (PW3) that the wood used by him

for raising the new construction of his house was stolen by him

from the forest. Allegedly, the Appellant demanded bribe of

Rs.5,000 for not making a forest case against the Complainant.

Ultimately, the Appellant consented to accept bribe of Rs.1,000.

Since the Complainant did not want to give bribe to the Appellant,

he submitted a written complaint (Ex.P2) in the office of

Superintendent of Police, Lokayukta, Raipur. For confirmation of

the demand of bribe, the Complainant was given a tape recorder

and a blank cassette for recording his conversation with the

Appellant regarding the demand. On 10.4.1999, the Complainant

again met with the Appellant. At that time, the Appellant again

demanded the bribe of Rs.1,000 from the Complainant. The

Complainant recorded this conversation in the tape recorder. On

15.4.1999, the Complainant returned to the office of the

Superintendent of Police, Lokayukta, Raipur with the recorded

conversation and there he again submitted a written complaint

(Ex.P5). On the basis of the written complaint (Ex.P5) and the

recorded conversation, First Information Report (Ex.P20) was

registered. Panch witnesses R.P. Sao (PW6) and Rajendra

Swarnakar (PW9) were called. They verified the contents of the

complaint (Ex.P5) from the Complainant. A transcription (Ex.P4) of

the recorded conversation was prepared. The Complainant

produced 10 currency notes each in the denomination of Rs.100,

total Rs.1,000 for the trap proceeding. Their numbers were noted

and they were smeared with phenolphthalein powder. A

demonstration of the trap proceeding was given to the Complainant

and the panch witnesses. The Complainant was again given a tape

recorder and a blank cassette for recording his conversation with

the Appellant. A trap party proceeded towards the village of the

Appellant. The Complainant alone was sent to the house of the

Appellant where his office was also situated. The panch witnesses

and other members of the trap party stayed nearby the house of the

Appellant. In his house, the Appellant again demanded bribe

money from the Complainant. The Complainant gave him the

tainted money in his house. At that time, the Complainant forgot to

switch on the tape recorder and, therefore, the conversation took

place between him and the Appellant could not be recorded. After

giving the tainted money to the Appellant, the Complainant came

out of the house and gave a signal to the trap party on which the

trap party entered the house of the Appellant. Hands of the

Appellant were caught. His hands were washed in a solution of

sodium carbonate on which colour of the solution turned into pink.

The Appellant had kept the tainted money in the left pocket of his

shirt. The tainted money was recovered from there. The shirt of

the Appellant was also dipped into a solution of sodium carbonate

on which colour of the solution turned into pink. The recovered

currency notes were also dipped into a solution of sodium

carbonate on which colour of the solution turned into pink. On

completion of other formalities and investigation, a charge-sheet

was filed against the Appellant. The Trial Court framed charges

against him.

4. To bring home the offence, the prosecution examined as many as

12 witnesses. Statement of the Appellant was also recorded under

Section 313 of the Code of Criminal Procedure in which he denied

the guilt, pleaded innocence and false implication. It was the

defence of the Appellant that on being inquired, the Complainant

had admitted that he had committed theft of the wood from the

forest for the purpose of construction of his house. Therefore, on

14.4.1999, Forest Crime No.4969/6 was registered against the

Complainant and he was directed to meet with the Deputy Ranger

for deposit of fine. The Complainant had told that on that day he

did not have money and he will go to the Deputy Ranger tomorrow

for deposit of the fine. But, instead of going to the Deputy Ranger

on 15.4.1999, the Complainant went to the office of Superintendent

of Police, Lokayukta, Raipur and made there the false and

fabricated complaint alleging demand of bribe by the Appellant. On

15.4.1999 itself, the Complainant came to the office of the

Appellant at 5:00 p.m., i.e., at the time of trap and told him that he

had gone to the Deputy Ranger with regard to deposit of the fine

and telling him (the Appellant) that he should keep the money with

him, deliberately kept the tainted money in the pocket of his shirt

and thereafter the Complainant went out from there telling that he

will return to him soon. The Appellant never made any demand for

bribe nor did he accept the said money as bribe. He has been

falsely implicated in the case by the Complainant. In his defence,

the Appellant examined three witnesses.

5. On completion of the trial, the Trial Court convicted and sentenced

the Appellant as mentioned in 2 nd paragraph of this judgment.

Hence, this appeal.

6. Learned Counsel appearing for the Appellant submitted that the

Trial Court has convicted the Appellant without there being

sufficient and clinching evidence against him on record. It was

argued that in the transcription (Ex.P4), there is nothing to show

that there was any demand by the Appellant for bribe. Regarding

the written complaint (Ex.P2) made by the Complainant, it was

argued that Ex.P2 does not bear signature of the Complainant and

the Complainant has also admitted the fact that the complaint

(Ex.P2) was not written by him. Therefore, examination of the

author of the complaint (Ex.P2) is necessary. It was further argued

that at the time of trap also, despite having a tape recorder and a

blank cassette, alleged conversation took place between the

Complainant and the Appellant was not recorded by the

Complainant. From the evidence on record, it is also established

that at the time of trap, the Complainant alone had gone inside the

house of the Appellant and rest of the members of the trap party

and the panch witnesses had stayed nearby the house of the

Appellant and none of them witnessed the Complainant giving

money to the Appellant inside the house nor did any of them hear

the conversation took place between the Complainant and the

Appellant inside the house. The demand of bribe at any stage has

not been proved by the prosecution in this case. Mere recovery of

the tainted money does not constitute any offence against the

Appellant. It was further argued that it has been admitted by the

Investigating Officer that on 14.4.1999 itself a forest crime was

registered by the Appellant/Beat Guard against the Complainant.

The written complaint (Ex.P5) was submitted by the Complainant in

the office of Superintendent of Police, Lokayukta, Raipur on

15.4.1999. Therefore, there is substance in the defence of the

Appellant that since he had registered a forest crime against the

Complainant on 14.4.1999, the Complainant made the false and

fabricated complaint against him in the Lokayukta office on

15.4.1999.

7. Opposing the above arguments, Learned Counsel appearing for

the Respondent/State supported the impugned judgment.

8. I have heard Learned Counsel appearing for the parties and

perused the entire material available including the statements of

witnesses with due care.

9. Present is a case of demand and acceptance of illegal gratification

other than legal remuneration by misusing the office by a public

servant/Appellant. A heinous offence relating to a public servant is

sufficient for termination of his services. Degree/standard of proof

of ingredients of the offence is high and the prosecution is required

to prove the offence by adducing cogent evidence without leaving

any room for doubt or ambiguity.

10. In a case of illegal gratification, there are three essential ingredients

to constitute the offence. They are (i) demand, (ii) acceptance and

(iii) recovery.

11. In the instant case, it is not in dispute that at the relevant time, the

Appellant was posted as a Beat Guard in the forest situated in

Village Naragaon, where the Complainant was also residing. It is

also not in dispute that the Complainant had demolished his old

house and constructed there a new house in which he had used

forest wood. It is also not in dispute that on 14.4.1999, the

Appellant had registered a forest crime against the Complainant

and on 14.4.1999 itself, he had made seizure of forest wood from

the house of the Complainant.

12. With regard to the initial demand of bribe, it was the case of the

prosecution before the Trial Court that on 9.4.1999, written

complaint (Ex.P2) was filed by Complainant Ashok (PW3) in the

office of Superintendent of Police, Lokayukta, Raipur. Complainant

Ashok (PW3) admitted that he had made an oral complaint. The

complaint (Ex.P2) was not written by him nor did he sign the said

complaint (Ex.P2). Investigating Officer R.L. Armo (PW12) also

admitted the fact that in the written complaint (Ex.P2), name of the

Appellant is written with a different ink. From perusal of the written

complaint (Ex.P2), it appears that name of the Appellant was added

later on in a blank space with a different ink. Investigating Officer

R.L. Armo (PW12), in his examination-in-chief itself, deposed that

the written complaint (Ex.P2) was given to him on 14.4.1999 by the

Incharge Superintendent of Police, Lokayukta, Raipur Mr. Banjara

(not examined) for taking necessary action. In his Court statement,

Complainant Ashok (PW3) has nowhere disclosed the date of

recording of the conversation took place between him and the

Appellant regarding the demand of bribe. The transcription (Ex.P4)

of the said conversation was prepared on 15.4.1999. It is also not

in dispute that there is no content in the transcription (Ex.P4) to

show that any demand for bribe was made by the Appellant from

the Complainant. It is also not in dispute that the written complaint

(Ex.P5) was submitted by the Complainant on 15.4.1999. As

admitted by Investigating Officer R.L. Armo (PW12), before that,

the Appellant had registered a forest crime against the Complainant

on 14.4.1999. Author of the written complaint (Ex.P2) Mr. Banjara

has not been examined by the prosecution. Thus, making of the

written complaint (Ex.P2) itself is doubtful.

13. From perusal of the statements of Complainant Ashok (PW3),

panch witnesses R.P. Sao (PW6) and Rajendra Swarnakar (PW9)

and Investigating Officer R.L. Armo (PW12), it is clear that both the

panch witnesses and other members of the trap party had stayed

nearby the house of the Appellant and at the time of alleged

transaction going on between the Complainant and the Appellant

inside the house of the Appellant they were not present inside the

said house and as admitted by them they did not witness giving of

bribe money by the Complainant to the Appellant inside the house

nor did they hear any conversation took place between the

Complainant and the Appellant inside the house from the place

where they were standing. From the evidence on record itself, it is

clear that even after availability of a tape recorder and a blank

cassette with the Complainant at the time of trap and despite

having a direction to record the conversation, the Complainant did

not record his conversation with the Appellant took place inside the

house of the Appellant regarding the alleged demand of bribe.

Though according to the case of the prosecution the Complainant

by mistake forgot to record the conversation, looking to the fact that

on earlier occasion he was well aware to record the conversation

and knowingly that a forest crime had already been registered

against him on 14.4.1999, by mistake he forgot to record his

conversation with the Appellant took place on 15.4.1999 is doubtful.

Therefore, there is substance in the defence of the Appellant that

on 15.4.1999 itself also the Appellant had not made any demand

for bribe and on that day the Complainant had deliberately kept the

tainted money in his pocket telling him that the same was for

deposit of the fine.

14. In (2009) 3 SCC 779 (C.M. Girish Babu v. CBI, Cochin, High Court

of Kerala), the Supreme Court held thus:

"18. In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."

15. Further, in (2014) 13 SCC 55 (B. Jayaraj v. State of Andhra

Pradesh), it was held by the Supreme Court as under:

"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P., (2010) 15 SCC 1 and C.M. Girish Babu v. CBI, (2009) 3 SCC 779.

9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any

official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."

16. Recently, in (2021) 3 SCC 687 (N. Vijayakumar v. State of Tamil

Nadu), reiterating the judgment of C.M. Girish Babu case (supra)

and B. Jayaraj case (supra), it was held by the Supreme Court as

follows:

"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI, (2009) 3 SCC 779 and in B. Jayaraj v. State of A.P., (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)

(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.

17. In the light of above view taken by the Supreme Court, in the

instant case also, it is clear that the prosecution has failed to prove

its case of demand and acceptance of bribe money by the

Appellant. Therefore, only on the basis of recovery of the tainted

money, conviction of the Appellant is not sustainable. The finding

of the Trial Court is not in accordance with the evidence available

on record as also not in accordance with law.

18. As an outcome of the discussion made above, the instant appeal is

allowed. The judgment of the Trial Court under challenge is set

aside. The Appellant is acquitted of the charges framed against

him.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal