Chattisgarh High Court

Shyam Mani Sharma vs The State Of M.P on 17 November, 2021

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     HIGH COURT OF CHHATTISGARH, BILASPUR

                  CRA No. 262 of 1998

• Shyam Mani Sharma

                                              ---- Appellant

                        Versus

• The State Of M.P. (Now CG)

                                           ---- Respondent




   Post for pronouncement of judgment on 17/11/2021

                                              Sd/-
                                        _______________
                                              Judge
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                                                                NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                  Judgment Reserved on 07.09.2021

                 Judgment Delivered on 17.11.2021

                          CRA No. 262 of 1998

   • Shyam Mani Sharma, S/o. Bharatlal Sharma, Aged 47 years,
     Branch Manager, Land Development Bank, Mungeli, District
     Bilaspur MP (now CG)

                                                         ---- Appellant

                                   Versus

   • The State Of M.P. (Now CG)

                                                     ---- Respondent




For Appellant       : Shri Abhishek Sinha, Sr. Advocate assisted by
                     Shri Ravindra Sharma, ShriD.L.Dewangan, Shri
                     Samrath Singh Marhas and Shri Basant
                     Dewangan, Advocates.
For Respondent/State : Shri Anurag Verma, PL


                  Hon'ble Smt. Justice Rajani Dubey


                               C A V Order

17/11/2021

      The appellant has preferred this appeal against the judgment

and order dated 12/01/1998 passed by the Special Judge/First

Additional Sessions Judge, Bilaspur in Special Criminal Case No.

16/1995 convicting the accused/appellant under Sections 7 and 13 (1)

(d) read with 13 (2) of the Prevention of Corruption Act (for short the

"Act") and sentencing him to undergo rigorous imprisonment for six

months and one year respectively with a fine of Rs. 1000/- on each

count, with default stipulation.
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2.    Facts

of the case in brief are that at the relevant time the

accused/appellant was Branch Manager of the Land Development

Bank, Mungeli. It is alleged that complainant -Jai Kumar Patle applied

for loan of Rs. 10,000/- and for sanction of the said amount, the

appellant demanded Rs. 5,000/- from him. However, the matter was

settled that he will pay Rs. 300/- to the appellant. Written complaint

was made by complainant to the Special Police Establishment,

Lokayukta, Bilaspur alleging that the accused/appellant was

demanding Rs.300/- from him. Trap party headed by S.K.Suryavanshi

and B.P.Singh was constituted, test was demonstrated by applying

phenolphthalein powder on the 3 currency notes of 100 denomination,

said currency notes were given to the complainant and after

instructions being given to him, the trap party went to the office (Bank)

of the accused/appellant. It is alleged that complainant went to the

accused/appellant and immediately thereafter, gave a signal to the

trap party as a result of which the trap party raided the Land

Development Bank and during search of the accused/appellant, the

trap party collected the said amount vide Ex.P/13 and seizure memo

was prepared vide Ex.P-16 and the trap panchnama (Ex.P/20) was

prepared. Phenolphthalein test was conducted which proved positive

by FSL report (Ex.P/20). FIR (Ex.-P/21) was registered and after

obtaining sanction (Ex.-P/2) challan was filed under Sections 7 and

13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act.

3. In support of his case, prosecution has examined as many as 12

witnesses. Statement of accused/appellant was also recorded under

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

allegations levelled against him and pleaded his innocence and false

implication in the case. Defence of the accused/appellant is that he

has been falsely implicated and on the date of incident when he threw

the amount, the trap party forced him to pick the currency notes

scattered on the ground.

4. After hearing the parties, the court below convicted and

sentenced the accused/appellant as mentioned in paragraph 1 of the

judgment. Hence this appeal/.

5. Counsel for the accused/appellant submits that the judgment of

conviction and sentence of the appellant is bad because the sanction

granted to prosecute the appellant is invalid and as such the

cognizance taken by the court below is not in accordance with law. He

submits that in the light of the evidence of the witnesses, it is clear that

the currency notes were scattered on the ground and the appellant

was forced to pick them up and thereafter on washing hands the

solution automatically turned pink. In the present case, the

prosecution has examined only interested witnesses and no

independent witness has been examined. The statement of the

witnesses are full of contradictions and omissions therefore they are

not reliable. He submits that no demand of bribe was ever made by the

accused/appellant as is alleged by the prosecution and therefore also,

the conviction of the accused deserves to be set aside.

6. On the other hand, counsel for the respondent/State opposes

the arguments as raised by the appellant and supports the impugned

judgment of conviction and sentence.

7. Heard counsel for the parties and perused the materiel available

on record.

8. Before the trial court, it is admitted fact that at the relevant time,

the accused/appellant was working as Branch Manager of the Land

Development Bank, Mungeli. Complainant Jai Kumar (PW-6) has

stated in his examination-in-chief that accused demanded Rs. 300/-

and he filed written complaint Ex.P-5 before the Lok Ayukta. In

paragraph 9 he has stated that "he removed the money from his

pocket and handed over to him. These currency notes were kept by

the appellant in his pocket." Again he has stated that " on seeing the

trap party he threw the currency notes of 300/- on the ground." In

paragraph 19 he has stated that at the entrance of the bank, he tried

to give the amount but the appellant refused to take and the same fell

on the ground. The trap party reached there and asked the appellant

to pick the currency notes but he did not pick the amount. Thereafter,

the appellant was forced to pick up the same and keep the amount in

pocket and then they went inside the Bank for further proceedings."

9. Another witness S.K.Suryawanshi (PW-10) has stated that the

appellant threw the currency notes on the floor but the trap party

forced him to pick them up from the ground but he did not pick them

up. In para 3, complainant Jai Kumar Patle has stated that he spent

Rs. 475/- for the sanction of the loan. Again he has stated that the

appellant had taken the amount of Rs. 475/- with the assurance that

his loan amount would be sanctioned soon. He has further stated that

the appellant demanded Rs. 300/- for sanctioning of his loan amount.

Yogi Kumar (PW-1) has stated that he sold his cattle (buffalo) to Jai

Kumar Patle on the assurance that when he will receive the amount of

loan, he would pay the same to him. This witness did not stated

anything about demand or acceptance of the bribe amount.

10. In the present case, complainant alone is the witness of demand

of bribe and no tape or cassette was given to the complainant to

record during conversation. Complainant has stated in para 19 of his

statement that " eSaus vkjksih dks pk; ihus ds fy;s pyus ds fy;s dgk rks

vkjksih esjs lkFk pk; ihus cSad ds ckgj x;k FkkA cSad ds izos'k }kj ds ikl

eSaus vkjksih dks fj'or esa #i;s nsuk pkgk ijUrq vkjksih ugha & ugha djds

badkj dj fn;k bl ij og #i;s esjs gkFkksa ls NwVdj tehu ij fxj x;sA

fQj vkjksih ls tcjnLrh djds #i;s mBok;k x;k rFkk tsc esa j[kok;k

x;k vkSj fQj vkjksih dks ysdj cSad ds vanj Vªsi ikVhZ pyh x;h tgk Vªsi

dh 'ks"k dk;Zokgh dh x;hA"

11. Both the panch witnesses have stated that the currency notes

were lying on the ground. In order to constitute the offence under

Section 7 of the Prevention of Corruption Act, 1988, proof of demand

is a sine qua non. In the matter of B. Jayaraj Vs. State of Andhra

Pradesh, reported in (2014) 13 SCC 55, the supreme Court has held

as under :

Insofar as the offence under Section 7 is concerned, it is a settled position of 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 the matter of C.M.SHARMA Vs. State of A.P. (20210) 15 SCC 1 : (AIR 2011 SC 608) and C.M.Girish Babu Vs. CBI (2009) 3 SCC 779: (AIR 2009 SC 2022)"

12. AIR 2016 SC 2045 (V.Sejappa Vs. State by Police Inspector

Lokayukta, Chitradurga), it was held by the Supreme Court as

under :

"18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 28 of the Act."

19. After referring to Surajmal Vs. State (Delhi Administration) (1979) 4 SCC 725: (AIR 1979 SC 1408), in C.M.Girish Babu Vs. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 : (AIR 2009 SC 2022, para 16), it was held as under :

"18. In Surajmal Vs. State (Delhi Admn.) (1979) 4 SCC 725 : (AIR 1979 SC 1408), this Court took the view that (at SCC p. 727, para 2) (at p. 1409, para

2 of AIR) 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 beyond payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."

13. In the matter of Panalal Damodar Rathi Vs. State of

Maharastra reported in (1979) 4 SCC 526, it has been held by the

Court that on facts, there was no corroboration of the testimony of the

complainant regarding the demand for money by the appellant. On this

crucial aspect, therefore, it has to be found that the version of the

complainant is not corroborated and therefore, the evidence of the

complainant on this aspect cannot be relied on."

14. In the matter of Shaniram Bhagat Vs. State of Chhatisgarh

reported in 2018 Cri. L..J. 944, it has been held that during the

course of trap, accused refused to accept bribe money and the Voice

recording allegedly containing conversation about demand of bribe by

accused was not clearly audible, trap witnesses have also deposed

about not seeing accused in actual possession of currency notes, as

all the notes were scattered on the ground, there was no proof of

actual demand and acceptance and therefore the Court has acquitted

the appellant of the charges.

15. In the matter of Ashok Kumar Chandrakar Vs. State of CG

reported in 2011 (2) CGLJ 23, it has been held that in a trap case,

when initial part of the story of demand and offer is found to be

untrustworthy, testimony of the complainant cannot be accepted.

34. In the case of A.Subair Vs. State of Kerala reported in (2009)6 SCC 587, it has been held that :

The legal position is no more res integra that primary requisite of an offence under Section 13 (10(D) of the Act is proof of a demand or request of valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing of pecuniary advantage, the offence under Section 13 (1)(d) cannot be held to be established."

"Mere recovery of currency notes (Rs. 20/-

and Rs. 5/-) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence."

16. In the present case, from perusal of the statement of

complainant and panch witnesses, it is clear that the notes were

scattered on the ground and the trap party forced the appellant to pick

them up and thereafter on washing hands the solution automatically

turned pink. In the light of the principles laid down by the Supreme

court and the facts of the present case, it is clear that the prosecution

has failed to establish the demand and acceptance of illegal

gratification by the appellant. The prosecution has not been able to

prove that the accused has made any demand for bribe or he had

accepted the money knowing it to be bribe. The complainant himself

has stated in different versions about the acceptance and has clearly

stated that the accused was denying to accept the money thus, the