Wasiuddin Siddiqui vs State Of Chhattisgarh
2021 Latest Caselaw 2305 Chatt

                                 1

                                                               AFR
      HIGH COURT OF CHHATTISGARH, BILASPUR

             Judgment Reserved on : 12.07.2021
               Judgment Passed on : 14.09.2021

                      CRA No. 853 of 2007

     Wasiuddin Siddiqui, S/o late Shri Sulemanuddin, aged about
      62 years, Asstt. Engineer, Chhattisgarh Rajya Vidyut Mandal
      (Retd.), R/o H. No. 2A, Street No. 18, Sector-1, Bhilai Nagar,
      District Durg (C.G.)

                                                    ---- Appellant
                             Versus

     State of Chhattisgarh, Through Police Station Lokayukt
      Office, Raipur, Special Police Estb. (C.G.)
                                                 ---- Respondent

For Appellant - Mr. Goutam Khetrapal, Advocate. For Respondent - Mr. Sameer Sharma, Dy. G.A. and Ms. Ishwari Ghritlahre, P.L.

Hon'ble Smt. Justice Rajani Dubey

C A V Order 14/09/2021

This appeal arises out of the judgment of conviction and

order of sentence dated 31.08.2007 passed by the Special

Judge (Prevention of Corruption), Durg (C.G.) in Special Case

No.01/2002 convicting the accused/appellant under Sections 7

and 13 (1) (d) & (13) (2) of Prevention of Corruption Act, 1982

(for short 'the Act 1988') and sentencing him to undergo S.I.

for one year with fine of Rs.1000/- and R.I. for two years with

fine of Rs.1000/-, plus default stipulation respectively.

02. The prosecution case, in brief, is that a complaint was

submitted by complainant Santosh Mishra (PW/3) against

Wasiuddin Siddiqui (appellant), who was posted as Assistant

Engineer in Chhattisgarh Rajya Vidyut Mandal at Kohka, Bhilai,

alleging therein that the appellant demanded illegal

gratification of Rs.500/- for issuing demand note for electric

connection of complainant's Shop No.B-94 situated at Smriti

Nagar, Bhilai. The complainant did not want to give bribe and,

therefore, after making panchanama of giving tape-recorder

for verification of complaint (Ex.P/4), a tape recorder was

given by installing a new blank cassette for the same.

03. After due procedure, the complainant again met the

applicant. On 14.07.2000, the complainant informed the

official of Lokayukt over telephone that he recorded the

conversation regarding bribe and the appellant has called him

to his office on 17.07.2000 with bribe amount. On

17.07.2000, he could not go to Raipur because of continuous

rain and the complainant was asked to meet him (appellant)

at Bhilai hotel and witnesses namely B.K. Dhruv (PW/4) and

Ramsharan Pal (PW/10) were summoned. After constituting

trap team, it left for Bhilai hotel in a Govt. jeep, where they

met with the complainant in Room No.1 of the hotel. The

complainant handed over a complaint upon which an First

Information Report and dehati nalishi was registered on Crime

Number 0/2000 and proceedings were initiated under the Act,

1988. The complaint letter and tape recorder were read over

by the witnesses. Number of five currency notes of Rs.100/-

each, total Rs. 500/-, which were to be given as bribe, were

mentioned in the initial panchanama (Ex.P/8). Phenolphthalein

powder was applied on the said notes. The said notes, after

due search, were kept in the left pocket of complainant's shirt

and it was directed that only on demand of the appellant, the

amount of bribe be given and thereafter point the hand over

head. The trap party parked their Govt. vehicle a short

distance away from the Electric Board Office and sent the

complainant to appellant's office. Further case is that

complainant entered the office of present appellant and

handed over the bribe money, which was kept by the

appellant on blank paper on his table. The trap party,

thereafter, entered the office of appellant and the hands of

the complainant and appellant were separately washed with

sodium carbonate, which turned pink and proper panchanama

(Ex.P/12) was prepared in respect of currency notes as well as

the water which turned pink and seized vide Ex.P/2. Based

upon the trap conducted by the police, statements of the

witnesses were recorded under Section 161 of Cr.P.C. Spot

map was prepared vide Ex.P/13. Numbered FIR was

registered on 21.07.2000 vide Ex.P/24. Seized articles were

sent for its chemical analysis to FSL, Sagar vide Ex.P./25.

According to which, report of sodium carbonate,

phenolphthalein and acid alkaline found to be positive. The

charge-sheet was filed against the appellant and on

04.12.2001, sanction for prosecution was granted in the

matter vide Ex.P/1 and charges were framed on 27.02.2002.

04. After filing of the charge sheet, the trial Court has

framed charge under Sections 7, 13(1) (d) and (13) (2) of the

Act, 1988. The prosecution in order to bring home the charge

levelled against the accused/appellant examined as many as

12 witnesses in all. Statement of accused/appellant was

recorded under Section 313 of Cr.P.C. in which he abjured his

guilt and pleaded innocence and false implication. Two

defence witnesses namely Shashidhar Dwivedi (DW/1) and

Abdul Ajim (DW/2) were also examined to substantiate its

case.

05. After hearing the parties, the Court below has convicted

and sentenced the accused/appellant in the manner as

described above.

06. Learned counsel for the appellant submits that the Court

below has not considered the evidence of Bhushan Lal Sahu

(PW/8), an employee of the department, in its true perspective

and thereby committed illegality. He further submits that

voice test of the appellant was not conducted by the

prosecution and, therefore, the alleged tape-recorder and the

transcription thereof is not admissible under the law. He also

submits that the Court below has failed to appreciate the fact

that the tented amount was neither recovered from the

possession of the appellant or from the person of the

appellant and as such, the said circumstance cannot be relied

upon. Learned counsel also submits that the numbers of

tainted money are different from the alleged seized currency

notes and the prosecution story on this ground becomes

highly doubtful. In this case, the sanction for prosecution

against the appellant is bad in law and the same has been

accorded by a person, who is not competent and authorized

for the same. The alleged sanction is without application of

mind and that too, has not been duly proved under the law.

Learned counsel also submits that in this case dehati nalishi

lodged by the complainant in the police station has neither

been produced nor any evidence has been adduced in support

of the alleged story of theft of the said dehati nalishi. Learned

counsel next submits that as regards demand, complainant

Santosh Mishra (PW/3) has stated that he had submitted an

application on 10.05.2000 in the office and not on 10.07.2000,

which makes it clear that there was at all no evidence on

record to show that there was any demand by the appellant

on 10.05.2000. The learned trial Court erred in not

appreciating the fact that there is no evidence of giving and

taking of alleged bribe. He also submits that the evidence of

prosecution witnesses are highly contradictory and there is no

material on record to show that the appellant has any relation

with the said transaction in any manner. He also contended

that under Section 19 (1) (C) of the Act, 1988, previous

sanction was necessary but prosecution evidence shows that

there was no previous sanction in this case. The story of the

prosecution is against the doctrine of preponderance of

probabilities and the prosecution evidence is highly

contradictory with each other and the offence is not proved in

any manner and as such, the impugned judgment of

conviction and order of sentence is liable to be set aside. In

support of his argument, learned counsel placed reliance on

the decisions of Hon'ble Supreme Court in the matter of B.

Jayaraj Vs. State of Andhra Pradesh reported in (2014)

13 SCC 55, P. Satyanarayana Murthy Vs. District

Inspector of Police, State of Andhra Pradesh and

Another reported in (2015) 10 SCC 152, State Through

Central Bureau of Investigation Vs. Dr. Anup Kumar

Shrivastava reported in (2017) 15 SCC 560, Sanjaysinh

Ramrao Chavan Vs. Dattatray Gulabrao Phalke and

Others reported in (2015) 3 SCC 123, Ram Singh and

Others Vs. Col. Ram Singh reported in 1985 (Supp) SCC

611, decisions of High Court of Madhya Pradesh in the matter

of Suryakant Sharma Vs. State of Madhya Pradesh

reported in 2013 SCC Online MP 4995 and Rajaram

Badole Vs. Special Police Establishment, Lokayukt,

(Cr.A. No.1458/2015 decided on 25.01.2018).

07. On the other hand, learned State counsel supported the

findings of the Court below and contended that the findings of

the Court below, recorded on a proper appreciation of the

evidence, did not suffer from any infirmities or irregularities,

to call for interference in this appeal.

08. I have heard learned counsel for the parties and perused

the material available on record.

09. The question which arises for consideration before this

Court whether the prosecution has proved demand of illegal

gratification by the appellant and clear acceptance thereof

beyond all reasonable doubts.

10. The trial Court examined complainant Santosh Kumar

Mishra (PW/3), who in para 3 of his examination-in-chief, has

stated as under :-

"blds ckn ge dksgdk dk;kZy; x;sA eq>s le>k;k x;k fd fj'or nsus ds ckn b'kkjk dj nsukA ogka ij eSus dusD'ku ysus ds fy;s vkfQl esa tks vkSipkfjdrk,a iwjh djuk Fkk og DydZ ds ikl cSBdj iwjk fd;k vkSj QkbZy ysdj vkjksih ds ikl x;kA tc eSus QkbZy muds le{k j[kk rks mUgksus ikap lkS #i;k ¼500½ fj'or ekaxk fQj eSus mDr ikap lkS #i;s dh jkf'k tsc ls fudky dj j[k fn;k fQj mUgksus esjs fMekaM uksV esa j[k fn;kA eSa ogka ls iwoZ fu/kkZfjr b'kkjk dj fn;kA b'kkjk i'pkr Vsªiny ds Jh jktiwr lgkc igwpsaA mUgksus vkjksih ls fj'or ds laca/k esa iqNk rks mUgksus ysus ls badkj dj fn;kA rc esjs ls iqNus ij eSus mUgs crk;k fd esjs ls vkjksih iSlk ysdj vkjksih Vscy ds mij iSlk j[kk gSA fQj iSlk dks yksdk;qDr okys us mBkdj] uacj feyk;s x;sA os uksV ogha Fks ftlesa dsfedy yxs FksA fQj ogka ij vkjksih dks gkFk /kqyokus dk dk;Zokgh dh xbZA fQj ogka ij vkjksih dks gkFk /kqyokus ij gkFk dk ikuh xqykch jax dk ik;k x;kA"

11. This witness, in para 12 of cross-examination, has

admitted that - " ;g lgh gS] fd tc Vsªiny okyksa us fln~nhdh lgkc ls iqNk

rks vkjksih fln~nhdh us dgk fd iSlk ds ckjs esa eq>s ugha ekyqe rc Vs ªiny okyksa us

eq>ls iqNk rks crk;k fd Vsfcy ds mij jftLVj j[kk gS mlds uhps iSls dks nck dj

j[kk gSA esjs crkus ds rqjar ckn yksdk;qDr okyksa us uksV dks fudky fy;kA ml uksV

dks Mh-,l-ih- jktiqr us vius gkFk ls fudkyk FkkA jktiqr lgkc us uksV fudkyus ds

ckn vfHk;qDr ds gkFk dks idM fy;k FkkA lk{kh dks Loa; dFku gS fd vdsys jktiqr

lgkc us gkFk idMs FksA mlds ckn /kksus dh dk;Zokgh gqbZA " This witness

again in para 13 of his cross-examination has admitted that -

";g lR; gS fd iSlk mlds Vsfcy ls tIr gqvk gSA"

To substantiate the aforesaid version of the complainant,

this Court finds from the Whole Procedure Panchanama

(Ex.P/12), which was prepared at the time of incident, in which

it has been written on page No.2 that - "olhmn~nhu flf)dh ls fj'or

dh jde ds laca/k es iwNk x;k rks mlus vius dk;kZy; ds Vscy ds mij dkap is ,d

lQsn dkxt ds mij j[ks gq, jde dh rjQ bZ'kkjk dj crk;k fd ;s os iSls gS tks

larks"k feJk us mls fn;s gSA "

From the aforesaid evidence, there is contradiction in the

version of complainant with regard to disclosure of bribe

amount. At one point of time, complainant said that he had

kept the bribe amount on table, whereas the applicant denied

of having accepted the bribe amount, and according to

Ex.P/12, he (appellant) pointed that the bribe amount was

kept on the white paper on the table.

12. Ramsharan Pal Singh (PW/10), Asstt. Engineer (PWD),

Raipur, who was included in trap party, has stated in para 5 of

his examination-in-chief that - "fQj ge yksx ogka tkdj ns[kk fd lkS&lkS

#i;s ds ikap uksV Vsfcy ds ckabZ vksj iMk gqvk FkkA" This witness, in para

11 of cross-examination, has admitted that - "eSus ?kVukLFky ij

vkjksih dks idMus ds iwoZ viuk gkFk /kksdj vkjksih dks ugha fn[kk;k FkkA". This

witness further in para 12 of cross-examination has admitted

that - ";g lgh gS fd Vsfcy esa uksV Qfj;knh us vFkok vkjksih es ls fdlus j[kk eSus

ugha ns[kk".

13. Panch witness B. K. Dhruw (PW/4) has also admitted in

para 7 of his cross-examination that - "dk;kZy; ds vanj D;k ckrphr

gqbZ D;k ysunsu gqvk mldh eq>s tkudkjh ugha gSA ;g lgh gS] fd eSa tc dk;kZy;

x;k rks ml le; fj'orh uksV dkxt ij j[ks gq, Fks ftls jke'kj.kyky us mBk;k FkkA

ge yksx dk;kZy; esa izos'k djus ds i'pkr ikuh esa gkFk /kqyok;s Fks lksfM-dkcksZ- esa gkFk

ugh /kqyok;s FksA ;fn izkFkhZ dk;kZy; ds vanj tkdj vfHk;qDr ls gkFk feyk;k gksxk] rks

mldh tkudkjh eq>s ugha gSA "

A bare perusal of the evidence of these witnesses goes

to show that the persons who were included in the trap party

were not fully aware as to who had kept the money on table.

14. Two defence witnesses namely Shashidhar Dwivedi

(DW/1) and Abdul Ajeem (DW/2) were also examined in the

case. Shashidhar Dwivedi (DW/1), in para 4 of his

examination, has stated that complainant Santosh Kumar

Mishra (PW/3) had submitted an application for electric

connection on 17.02.2000, which was not supported by No

Objection Certificate. Without NOC new electric connection

cannot be given. Thereafter, he (DW/1) asked complainant

Santosh Kumar Mishra (PW/3) to meet the present appellant.

This witness has further stated that no demand note was

issued as there was no NOC. This witness has also stated that

later the demand note was issued on bing asked by the

Lokayukt.

15. In this context, bare perusal of demand note (Ex.P/15)

goes to show that two amounts are written on it, i.e. 175 and

500 total Rs.675/-, and the name of complainant Santosh

Kumar Mishra (PW/3) finds place on it.

16. High Court of Madhya Pradesh, in the matter of

Suryakant (supra), recorded its finding where the bribe

money was seized from the table. It has been held in para 16,

which reads thus:-

"16. It is admitted fact that the money was seized from the table of appellant. But mere recovery of the money from the table of the appellant/accused 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 money as bribe."

17. Thus, looking to the aforesaid evidence and

circumstances of the case raises serious doubt about the

amount having been voluntarily accepted by the appellant as

illegal gratification. The acceptance of illegal gratification by

the appellant is missing in the case.

18. Section 20 of the Act, 1988, provided for raising

presumption only if a demand is proved. For facility of

reference, Section 20 of the Act, 1988, is reproduced herein

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.

19. Thus, it is clear from Section 20 of the Act, 1988, that

once the amount is found in the possession of the accused,

the burden shifts on him to explain the circumstances to prove

his innocence as contemplated under Section 20 of the Act,

1988.

20. Another evidence which the prosecution has led in the

case is the transcription of tape-recorder (Ex.P/6). A tape-

recorder with new blank cassette was given to the

complainant (PW/3) for verification of his complaint. A bare

perusal of Ex.P/6 goes to show that it is very vague. It is clear

from transcription (Ex.P/6) that in most of the places it has

been written as 'vLi"V'. In Ex.P/6, at last, it has been written

that - "vkjksih % ugh eS dqN ugh tkurk vki ys ds vkuk eS isesUV djk nwaxkA ".

With regard to reliability of this evidence, this Court finds

from the evidence of Santosh Kumar Mishra (PW/3) who has

stated in para 5 of his statement that the appellant had told

him to come with bribe amount in office. This conversation

was not recorded in tape-recorder as the same had taken

place on 10.07.2000. Further, in para 6, he has stated that

when he went with tape-recorder, the appellant did not talk to

him about bribe of 500 rupees. In this regard, Section 20 of

the Act, 1988, provides for raising of presumption only if a

demand is proved. It is worth mentioning here that the

evidence, which formed the initiation of case i.e. transcription

of tape-recorder (Ex.P/6) for verification of complaint of

complainant, raises serious doubt. From the above evidence,

it is not crystal clear that any demand of bribe was made by

the appellant.

21. Hon'ble Supreme Court in the matter of B. Jayaraj

(supra), held in para 7, which reads thus:-

"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 tribe. 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.

22. In P. Satyanarayana (supra), Hon'ble Supreme Court

held in para 23, which reads thus:-

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus

not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.

23. As regards the documentary evidence i.e. transcription

of tape-recorder (Ex.P/6), the High Court of Madhya Pradesh,

in the matter of Rajaram (supra) has held in para 14 and 15,

which read thus:-

"14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronc record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act.

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the

Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

24. Further, Hon'ble Supreme Court in the matter of Ram

Singh (supra), held that a tape-recorder statement is

admissible in evidence, subject to the following conditions :-

(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.

(2) The accuracy of the tape-recorder statement must be proved by the maker of the record by satisfactory evidence : direct or circumstantial.

(3) Possibility of tampering with, or erasure of any part of, the tape-recorder statement must be totally excluded.

(4) The tape-recorder statement must be relevant.

(5) The recorded cassette must be sealed and must be kept in safe or official custody.

(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.

25. Further, in para 32, it has been held, which reads thus:-

32. Thus, so far as this Court is concerned the conditions for admissibility of a tape-recorder statement may be stated as follows :

(1) The voice of the speaker must be duly identified by the maker of the record or by others

who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

(2) The accuracy of the tape-recorder statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.

(3) Every possibility of tampering with or erasure of apart of a tape-recorder statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rule sof Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

26. It is clear that if the electronic record is duly produced in

terms of Section 65-B of the Evidence Act, the question would

arise as to the genuineness thereof and in that situation,

resort can be made to Section 45-A - opinion of examiner of

electronic evidence, but in the instant case, it is not proved

that the learned trial Court tried to hear the tape-recorder and

followed Section 45-A of the Evidence Act and opinion of

examiner is also not on record to substantiate the prosecution

case to the extent that any demand of bribe was made by the

appellant.

27. Thus, it is clear from the transcription of tape-recorder

(Ex.P/6) that voice is not clear and not audible. That apart,

demand of bribe is not clear and at last it is mentioned in the

transaction report that "vkjksih % ugh eS dqN ugh tkurk vki ys ds vkuk eS

isesUV djk nwaxkA" This very much fact do not cover demand of

bribe and complainant also admitted that conversation with

regard to demand of bribe was not recorded. The 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. There is no

incriminating evidence on record in order to bring home the

charge of illegal demand and acceptance thereof. There is no

direct or circumstantial evidence to prove that the appellant

had demanded any illegal gratification and has accepted or

obtained any such illegal gratification.

28. Thus, considering all the aforesaid circumstances and

evidence of the case, manner of complaint, position of

appellant in concerned department and in view of law laid

down by Hon'ble Supreme Court in B. Jayaraj (supra), P.

Satyanarayana (supra) and Ram Singh (supra), the

prosecution has not been able to prove the charges against

the appellant beyond all reasonable ground.

29. For the aforesaid reasons, this court cannot sustain the

conviction of the appellant either 7 or under Sections 13(1)(d)

read with section (13) (2) of the Act, 1988. Accordingly, the

appeal is allowed. Conviction and the sentences imposed on

the appellant-accused by the trial Court by order dated

31.08.2007 are set aside and the appellant is acquitted from

the charges levelled against him. The appellant is on bail, his

bail bonds shall stand discharged.

Sd/-

(Rajani Dubey) JUDGE

PKD