Chattisgarh High Court
Vishnu Dev Singh vs State on 27 October, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1870 of 1998
Order reserved on : 8/09/2021
Order delivered on : 27/10/2021
Vishnu Dev Singh, S/o late Shri Juthan Singh Thakur, Aged
About 48 Years, R/o Bhojpur, Post- Sakaldeeha, Police Station-
Chandeli, District- Banaras (U.P.).
Sub-Divisional Officer, District- Rewa Circle (M.P.)
Sub-Divisional Officer, Deosar, District-Sidhi (M.P.)
---- Appellant
Versus
The State of Madhya Pradesh (now Chhattisgarh), through
Special Police Establishment Lokayukt Office, Bhopal.
Divisional Lokayukt Office, Bilaspur Circle, Bilaspur, M.P. (now
Chhattisgarh)
---- Respondent
For Appellant : Mr. Goutam Khetrapal, Advocate
For Respondent/State : Mr. Sameer Sharma, Dy. G.A.
Hon'ble Smt. Justice Rajani Dubey
CAV Order
27.10.2021
1. Present appeal is preferred against the impugned judgment of
conviction and order of sentence dated 31.07.1998 passed by the
learned Special Judge, Raigarh (C.G.) in Special Case No. 2/1996
whereby, the trial court has convicted and sentenced the appellant as
under:-
S.No. Conviction Sentence
1. Under R.I. for 2 years and to pay fine of Rs. 1000/-, in
Section 7 of default of payment of fine amount further
the imprisonment of R.I. for 3 months
Prevention of
Corruption
Act, 1988
2. Brief facts of the case are that the complainant Udhav Das was
the owner of the truck bearing registration No. MP26 B 3252 which was
registered in the name of Rajkumar Rora (PW-2) and on 23.01.1993,
the said vehicle was seized by the forest officer, Dharamjaigarh in
forest offence. The confiscation proceeding of the said vehicle was
pending before the range office. Complainant Udhav Das applied for
supurdnama (Ex.P/9) of that vehicle but his application was rejected,
thereafter he filed writ petition before High Court of Madhya Pradesh.
Hon'ble High Court passed the order on 28.04.1993 and allowed
supurdnama (Ex.P/9) after imposing conditions and on the basis of
order passed by Hon'ble High Court, on 01.05.1993, complainant went
to the office of the appellant, who was posted as SDO, forest and he
raised demand of Rs. 7,000/- for releasing the concerned vehicle on
supurdnama by way of illegal gratification. On 03.05.1993, complainant
Udhav Das went to the office of SP (Lokayukt) and gave written
complaint (Ex.P/1). On this report, two gazetted officers were
summoned and primary panchnama (Ex.P/6) was prepared at Raigarh
circuit house, and thereafter trap party went along with complainant
Udhav Das and his son Rajkumar Rora (PW-2). On 04.05.1993, the
trap party was constituted and proceeded to the place of appellant at
about 11:00 A.M. Thereafter, complainant gave money to the appellant
and the appellant was trapped by trap party. Recovery of denomination
of Rs. 7,000/- was made vide Ex.P/7 from the appellant, the seizure
memo (Ex.P/10) was prepared. Thereafter, phenolphthalein test was
conducted by Rambahadur Singh (PW-5) and the seizure of shirt and
other clothes were recovered vide Ex.P/8 and FIR has been registered
vide Ex.P/17. Statement of witnesses has been recorded and after
completion of investigation, charge-sheet was filed against him before
Special Judge and charges were framed under Sections 7(1), 13(1)
and 13(2) of the Prevention of Corruption Act.
3. So as to hold the accused/appellant guilty, the prosecution has
examined as many as 16 witnesses. Statement of the
accused/appellant was also recorded under Section 313 of the Cr.P.C.
and appellant has examined 3 witness in his defence and filed
documents Ex.D-1 to Ex.D-5 in which he denied the charges levelled
against him and pleaded innocence and false implication in the case.
4. On the basis of oral and documentary evidence, trial court has
acquitted the appellant of the charges under Sections 13(1) and 13(2)
of the Prevention of Corruption Act and convicted him for the offence
punishable under Section 7(1) of the Prevention of Corruption Act, and
sentenced him as mentioned in para 1. Hence, this appeal filed by the
appellant.
5. Learned counsel for the appellant submits that the conviction
and sentence passed by the trial court in the present case is highly
improper and in absolute contravention with the material available on
record. The conviction and sentence is solely based on conjecture and
surmises of the learned trial judge without properly appreciating the
deposition of the various prosecution witnesses as also the defence
witness. In trap cases, the prosecution has to prove the demand
beyond all reasonable doubt but in the present case, prosecution has
utterly failed to prove the factum of demand and acceptance of bribe by
the appellant which is clearly beyond all reasonable doubt. The
complainant Udhav Das did not appear in the witness-box and the
independent witnesses did not corroborate the deposition of the trap
witnesses. Panch witnesses have supported the defence of the
appellant but the learned trial Judge has committed grave error of law
while placing its reliance on the deposition of brother of the deceased
Heeranand (PW-1) and son of complainant Rajkumar Rora (PW-2).
The learned trial court has completely failed to take note of the fact that
when the order dated 28.04.1993 was passed by the Hon'ble High
Court for releasing the Metador after furnishing surety of Rs. 1,50,000/-
then under such circumstances, there is no room left for exercising
discretion by the appellant. On the contrary, on 01.05.1993,
complainant Udhav Das had approached the appellant only with the
photocopy of the Hon'ble High Court's order and therefore a
proceeding was rightly recorded by the appellant to the fact of
producing the surety holder for the purpose of passing an appropriate
order to release the vehicle. The appellant has simply fixed in the
matter for 04.05.1993 which by itself is sufficient to show that no effort
was ever made by the appellant to harass and victimise the
complainant. The Hon'ble High Court had passed the conditional order
whereby the complainant was required to deposit process fee within
one week failing which the petition was to be dismissed for non-
payment of P.F. In this regard, appellant filed document vide Ex.D-1 in
his defence. Learned trial Judge has erroneously disbelieved the
defence version of the appellant. The prosecution has failed to prove
Ex. P/2 which is the genesis of the case in absence of deposition of
complainant Udhav Das, the entire prosecution case become shaky
and doubtful. It is also clear from the statement of the witnesses that
appellant did not touch the note and complainant had kept the currency
note under the chair over which he was sitting and, thereafter, he
caught hold of left hand of the appellant so as to transfer the
phenolphthalein powder on the left hand of the appellant. Thus, the
factum of acceptance of bribe has not been proved by the prosecution
beyond all reasonable doubt. The complainant was habitual in carrying
out illegal transportation of forest produce like woods etc. since the
appellant was not allowing him to carry out his illegal activities and as
such he was made target by the complainant. Learned trial judge did
not appreciate oral and documentary evidence in its proper manner,
therefore, the appellant deserves to be acquitted and the impugned
judgment is liable to be set aside. He has also placed reliance in the
matters of A. Kanagarajan v. State through the Inspector of Police
(V & AC), Sivagangai, (Crime No. 4 of 2003) reported in (2014) SCC
Online Mad 11323, Raja and Others v. State of Karnataka reported in
(2016) 10 SCC 506, Shyamal Ghosh v. State of West Bengal
reported in (2012) 7 SCC 646, P. Satyanarayan Murthy v. District
Inspector of Police, State of Andhra Pradesh And Another reported
in (2015) 10 SCC 152, Banarsi Dass v. State of Haryana reported in
(2010) 7 SCC 450, Rakesh Kapoor v. State of Himachal Pradesh
reported in (2012) 13 SCC 552, Mukhtiar Singh (since deceased)
Through His Legal Representative v. State of Punjab reported in
(2017) 8 SCC 136, B. Jayaraj v. State of Andhra Pradesh reported in
(2014) 13 SCC 55, N. Vijayakumar v. State of Tamil Nadu reported in
(2021) 3 SCC 687, M.K. Harshan v. State of Kerala reported in (1996)
11 SCC 720, C.M. Girish Babu v. CBI, Cochin, High Court of Kerala
reported in (2009) 3 SCC 779, State of Punjab v. Madan Mohan Lal
Verma reported in (2013) 14 SCC 153.
6. Per contra, learned Counsel appearing for the State supported
the impugned judgment and submits that the sentence awarded by the
trial court is just and proper and requires no interference.
7. Heard learned counsel for the parties and perused the material
available on record including the impugned judgment.
8. In the present case, complainant died before commencing of the
trial therefore, he did not appear before the trial court. Heeranand
(PW-1), brother of Udhav Das has stated in his cross-examination that,
2. "ge esVkMksj ysus ds fy, x,A fnukad 01-05-1993 dks ge ,l-
Mh-vks- (QksjsLV) /keZt;x<+ ls feys mUgksus iSls dh ekax dh vkSj mUgksus
dgk fd ,sls gkbZ dksVZ ds vkns'k gekjs tsc esa iM+s jgrs gSaA tc rd
ges vki iSls ugha nksxs nl gtkj :i;s vU;Fkk ge rqEgkjh xkM+h dk
lM+ok nsaxs vkSj jktlkr djok nsaxsaA"
13. "gkbZ dksVZ lqiqnZxh vkns'k ds laca/k esa eSa ugha x;k Fkk] esjs HkkbZ
m)onkl x;s FksA"
14. "Lor% dgrk gS fd mDr frfFk dks esjs HkkbZ ds lkFk eSa vkSj esjs
Hkrhtk jktdqekj Hkh x;s FksA"
15. ";g ckr lgh gS fd fj'or ds ckjs esa igyh ckj f'kdk;r esjs
cM+s HkkbZ us fcykliqj tkdj fnukad 03-05-1993 dks dh Fkh] blds iwoZ
ugha dh FkhA"
9. In absence of complainant's statement and contradictory
statement of the witnesses, the demand of money has not been proved
by reliable evidence and also complainant's son i.e. Rajkumar Rora
(PW-2) did not state anything reliable in this regard and he has stated
in his cross-examination that,
1. "fnukad 01-05-1993 dks eSa] esjs pkpk ghjkuan] m)onkl]
x.ks'kjke pkSgku lqcg 7 cts lfdZV gkml jk;x<+ igqapsA esjs firk th
,oa esjs pkpk ghjkuan th yksdk;qDr ds Jh pkScs vkSj Jh frokjh ls
eqykdkr fd;sA eSa ckgj gh FkkA"
10. "vkjksih us ge yksxksa ds igqapus ds ckn gh jktlkr dh
dk;Zokgh ds izdj.k esa dk;Zokgh vkjEHk dj nh FkhA xokg Lor% dgrk
gS fd iSlk ysus ds ckn dk;Zokgh vkjEHk dh FkhA lqiqnZxh vkns'k dh
fy[kk i<+h vkjksih us ogha ij flUgk ckcw ls cksydj fy[kokbZA ;g ckr
lgh gS fd lqiqnZxh vksn'k dh fy[kk i<+h esa nks&<kbZ ?kaVs dk le; yx
x;k FkkA"
10. Rambahadur Singh (PW-5) has stated in his examination that,
5. "fnukad 03-05-1993 dks yksdk;qDr dk;kZy; ls jokuk gksrs le;
gekjs izkFkhZ ugha Fkk vkSj u gh eSaus 03-05-1993 dks izkFkhZ dk yksdk;qDr
dk;kZy; esa ns[kk FkkA"
13. "pwafd eSa rFkk ukSdj ckgj cSBs Fks blfy, eSa ugha crk ldrk fd
izkFkhZ ,oa vkjksih ds chp D;k ckr phr gqbZA vkjksih us esjs lkeus izkFkhZ
ls dksbZ iSlk ugha ekaxk Fkk rFkk izkFkhZ us esjs lkeus vkjksih dks dksbZ
iSlk ugha fn;k FkkA eSa ugha crk ldrk fd izkFkhZ Loa; iSlk NksM+ fn;k
gksA"
11. Panch witness L.N. Vimal (PW-8) has stated in his examination
that,
4. "djhc nks cts ds vklikl gesa cqyk;k x;k fd tYnh pfy;s]
VªSi gks x;kA ge yksx xkM+h ls mrjdj nkSM+rs gq, Jh flag lkgc ds
edku esa] tks QkjsLV jsLV gkml ds ikl muds dk;kZy; ds ihNs muds
fuokl LFkku esa gS] ogka ij igqapsA ogka ge yksx cjkens esa tc igqaps
rks geus ns[kk fd flag lkgc [kM+s Fks vkSj tksj&tksj ls fpYyk jgs Fks
fd "eq>s D;ksa Qlk;k tk jgk gSA"
12. Panch witness G.M. Kuraishi (PW-13) has stated in his
examination that,
2. "gekjs thi dks ihNs jksd fn;k x;k Fkk vkSj os yksx vkxs c<+
x;s FksA nks&,d ?kaVs osV djus ds ckn gesa cqyk;k x;k FkkA ges b'kkjk
djds thi ls cqyk;k x;k Fkk rks ge yksx QkjsLV ckil x;sA vkjksih
ls dqN feyk Fkk ;k ugha] ;g eq>s ;kn ugha gSA"
5. "vkjksih ds dejs esa x;k rc Qfj;knh ,oa mldk ,d lkFkh
vkjksih ds ,d&,d gkFk idM+s gq, Fks rFkk vkjksih fpYyk jgk Fkk fd
mls >wBk Qlk;k x;k gSA"
13. It has been held by Hon'ble the Apex Court in the matter of P.
Satyanarayan Murthy v. District Inspector of Police, State of
Andhra Pradesh and Another reported in (2015) 10 SCC 152 in
paras 20 & 21 which reads as under:-
"20. This Court in A. Subair v. State of
Kerala reported in (2009) 6 SCC 587 : (2009) 3
SCC (Cri) 85, while dwelling on the purport of
the statutory prescription of Sections 7 and
13(1)(d) of the Act ruled that (at SCC p. 593,
para 28) the prosecution has to prove the
charge thereunder beyond reasonable doubt
like any other criminal offence and that the
accused should be considered to be innocent till
it is established otherwise by proper proof of
demand and acceptance of illegal gratification,
which are vital ingredients necessary to be
proved to record a conviction.
21. In State of Kerala v. C.P. Rao reported in
(2011) 6 SCC 450: (2011) 2 SCC (Cri) 1010 :
(2011) 2 SCC (L&S) 714, this Court, reiterating
its earlier dictum, vis-a-vis the same offences,
held that mere recovery by itself, would not
prove the charge against the accused and in
absence of any evidence to prove payment of
bribe or to show that the accused had
voluntarily accepted the money knowing it to be
bribe, conviction cannot be sustained."
14. Hon'ble Apex Cout in the matter of B. Jayaraj v. State of
Andhra Pradesh reported in (2014) 13 SCC 55 in para 9, it has been
held as under:-
"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 offence 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."
15. Section 20 of the Prevention of Corruption Act, 1988 is
prescribed as under:-
"20. Presumption where public servant
accepts any undue advantage.- Where, in
any trial of an offence punishable under Section
7 or under Section 11, it is proved that a public
servant accused of an offence has accepted or
obtained or attempted to obtain for himself, or for
any other person, any undue advantage from
any person, it shall be presumed, unless the
contrary is proved, that he accepted or obtained
or attempted to obtain that undue advantage, as
a motive or reward under Section 7 for
performing or to cause performance of a public
duty improperly or dishonestly either by himself
or by another public servant or, as the case may
be, any undue advantage without consideration
or for a consideration which he knows to be
inadequate under Section 11."
16. In the present case, complainant did not appear in the witness-
box and his brother Heeranand (PW-1) and his son Rajkumar Rora
(PW-2) have stated different version. Panch witnesses and even head-
constable Rambahadur Singh (PW-5) did not support the demand and
acceptance.
17. It has been held by Hon'ble the Apex Court in the matter of
Mukhtiyar Singh (since deceased) Through His Legal
Representative v. State of Punjab reported in (2017) 8 SCC 136 in
para 13 which reads as under:-
"13. The indispensability of the proof of demand
and illegal gratification in establishing a charge
under Sections 7 and 13 of the Act, has by now
engaged the attention of this Court on umpteen
occasions. In A. Subair v. State of Kerala
reported in (2009) 6 SCC 587 : (2009) 3 SCC
(Cri) 85, this Court propounded that the
prosecution in order to prove the charge under
the above provisions has to establish by proper
proof, the demand and acceptance of the illegal
gratification and till that is accomplished, the
accused should be considered to be innocent.
Carrying this enunciation further, it was
exposited in State of Kerala v. C.P. Rao
reported in AIR (2011) 6 SCC 450: (2011) 2
SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714 that
mere recovery by itself of the amount said to
have been paid by way of illegal gratification
would not prove the charge against the accused
and in absence of any evidence to prove
payment of bribe or to show that the accused
had voluntarily accepted the money knowing it to
be bribe, conviction cannot be sustained."
18. Appellant has examined 3 witnesses in his defence and they
have stated that the appellant started proceedings of confiscation of
vehicle of the complainant.
19. Heeranand (PW-1) and Rajkumar Rora (PW-2) admitted in their
cross-examination that when the accused/appellant passed the release
order, trap was proceeded.
20. It is clear from the evidence of complainant's brother Heeranand
(PW-1) and his son Rajkumar Rora (PW-2) that at the time of taking
bribe, Sinha Babu was also present there but his name was not there
in the list of witnesses as in this case, he is very important witness but
Investigating Officer did not record his statement. In this case, Sinha
Babu was witness of seizure memo but prosecution did not examine
him in the Court. Panch witnesses have admitted that the complainant
caught hold of appellant's hand.
21. It has been held by Hon'ble the Apex Court in the matter of M.K.
Harshan v. State of Kerala reported in (1996) 11 SCC 720 in para 8
which reads as under:-
"It is in this context the courts have cautioned
that as a rule of prudence, some corroboration
is necessary. In all such type of cases of
bribery, two aspects are important. Firstly,
there must be a demand and secondly there
must be acceptance in the sense that the
accused has obtained the illegal gratification,
Mere demand by itself is not sufficient to
establish the offence. Therefore, the other
aspect, namely, acceptance is very important
and when the accused has come forward with
a plea that the currency notes were put in the
drawer without his knowledge, then there must
be clinching evidence to show that it was with
the tacit approval of the accused that the
money had been put in the drawer as an illegal
gratification."
22. Hon'ble Apex Cout in the matter of State of Punjab v. Madan
Mohan Lal Verma reported in (2013) 14 SCC 153 in para 11, it has
been held as under:-
"11. The law on the issue is well settled that
demand of illegal gratification is sine qua non
for constituting an offence under the 1988 Act.
Mere recovery of tainted money is not
sufficient to convict the accused when
substantive evidence in the case is not reliable,
unless there is evidence to prove payment of
bribe or to show that the money was taken
voluntarily as a bribe. Mere receipt of the
amount by the accused is not sufficient to
fasten guilt, in the absence of any evidence
with regard to demand and acceptance of the
amount as illegal gratification."
23. In the present case, the evidence of appellant is that on
01.05.1993, complainant filed only photocopy of Hon'ble High Court's
order, therefore, the appellant has directed the complainant to bring
original order of surety and when the complainant submitted the same,
he passed order in his favour for releasing the vehicle. In this case,
none of the independent witnesses have supported the version of
complainant. Even the panch witnesses and head-constable did not
support the acceptance and demand of money by the appellant. The
Hon'ble Apex Court has held in above cases that mere recovery of
money from the accused by itself is not enough in absence of
substantial evidence of demand and acceptance and in the present
case, recovery of money has not been supported by panch witnesses
because they were not present all the time at the spot.
24. Having regard to the evidence available on record as a whole it
is clear that in the present case, prosecution has not proved the guilt of
the accused beyond reasonable doubt. Hence, the benefit of doubt
shall be given in favour of the appellant. In the result, the appeal is
liable to be allowed.
25. Accordingly, the appeal is allowed and the impugned judgment of
conviction and sentence passed by the learned Special Judge is
hereby set aside and the appellant is acquitted of the charges levelled
against him. The fine amount if any, paid by the appellant shall be
refunded to him and the bail bond if any, executed by the appellant
shall stand cancelled.
Sd/-
(Rajani Dubey)
JUDGE
Ruchi/-
