Omprakash Pradhan vs The State Of Madhya Pradesh
2022 Latest Caselaw 579 Chatt

                                   1

                                                                  AFR
         HIGH COURT OF CHHATTISGARH, BILASPUR

              Judgment Reserved on : 21.09.2021
               Judgment Passed on : 02.02.2022


                        CRA No. 1623 of 2000


      Omprakash Pradhan, aged 24 years, son of Vishnu
       prasad Pradhan, Patwari, R/o village Karra, Post Gadwat,
       District Bilaspur (C.G.)
                                                      ---- Appellant
                                Versus


        State of Madhya Pradesh (Now Chhattisgarh), Through :
         S.H.O., Special Police Establishment, Office of Lokayukt,
         Bhopal (M.P.) (C.G.)
                                                    ---- Respondent

For Appellant - Mr. Ashish Shukla and Mr. U.K.S.

Chandel, Advocates.

For Respondent -           Mr. Anurag Verma, P.L.



               Hon'ble Smt. Justice Rajani Dubey

                              C A V Order

1. This appeal arises out of the judgment of conviction and

order of sentence dated 09.06.2000 passed by the

Special Judge (constituted under Prevention of

Corruption Act)/ 1st Additional Sessions Judge, Bilaspur

(C.G.) in Special Criminal Case No.04/1999 convicting

the accused/appellant under Sections 7 and 13 (1) (d)

read with Section (13) (2) of Prevention of Corruption

Act, 1988 (for short 'the P.C. Act') and sentencing him to

undergo R.I. for six months with fine of Rs.500/- and R.I.

for one year with fine of Rs.1000/- respectively, plus

default stipulation.

2. In the present case, the Accused/Appellant is Patwari

and Complainant is Pratap Singh Tanwar (PW/2) in whose

favour Bhuneshwar Prasad Singh, elder father of the

Complainant, had executed a will in respect of 4.74

acres of land owned and occupied by him at village

Sonpuri. After 4-6 months of execution of will, said

Bhuneshwar Prasad Sing left for heavenly abode.

Thereafter, an application was moved by Complainant

Pratap Singh Tanwar (PW/2) in the office of Tahsildar,

Koraba, to get the said land recorded in his name and for

preparation of land right and Rin Pustika. At the relevant

time, the Accused/Appellant, being the Patwari of the

concerned jurisdiction, was directed by the Tahsildar on

29.05.1998 to prepare and give land right and Rin

Pustika by 03.06.1998 but the same was not be given to

the Complainant (PW/2). Again on 15.06.1998, the

Accused/Appellant was directed by the Tahsildar to do

the needful in this regard. Thereafter, the Complainant

(PW/2) along with one Gunjlal (PW/13) approached the

Accused/Appellant, who demanded illegal gratification of

Rs.9,000/- for preparing land right and Rin Pustika,

however, the matter could be settled for Rs.3,000/-.

Since, the Complainant (PW/2) did not want to give bribe

amount, a complaint (Ex.P/4) was got prepared by one

Gunjlal (PW/13) on 16.06.1998 and the same was

submitted in the office of Lokayukt, Bilaspur. On the

basis of complaint (Ex.P/4), Crime No. 67/98 was

registered at Lokayukt Office, Bhopal, and a trap party

was constituted by summoning Panch witnesses. The

Complainant (PW/2) produced 30 currency notes each in

the denomination of Rs.100/-, total Rs.3,000/- for the

trap proceeding. Their numbers were noted and they

were smeared with phenolphthalein powder. Initial

Proceeding Panchanama (Ex.P/8) was got prepared in

the Lokayukt office. Under the same proceedings, the

Complainant (PW/2) was explained about the conduct to

be followed at the time of the trap movement and the

signal to be given to the trap team after the bribe about

was given to the Accused/Appellant. On 16.06.1998, the

trap party proceeded for Korba from Bilaspur. During

trap proceeding, the Complainant (PW/2) along with his

companion Guinjlal (PW/13) gave the tainted amount to

the Accused/Appellant at his residence at about 10.00

pm. thereafter, on the signal of Complainant, the trap

party came there and recovered the tainted amount

from the pocket of the Accused/Appellant. The hands of

the Accused/Appellant, seized money and hands of

Panch witness Dr. R.M. Tripathi (PW/4) were dipped into a

solution of sodium carbonate on which the colour of the

solution turned into pink, which was seized separately

vide Ex.P/9. The tainted amount was seized vide Ex.P/10.

The recovered currency notes were also dipped into a

solution of sodium carbonate on which colour of the

solution turned into pink. Transcription Panchanama of

conversation which took place between

Accused/Appellant and Complainant (PW/2) was done

and prepared vide Ex.P/11. Tape-recorder was seized

vide Ex.P/12. Trap panchanama of whole proceeding was

prepared vide Ex.P/13. Spot map was prepared vide

Ex.P/13-A. On 16.06.1998, zero number FIR was

registered vide Ex.P/7 in the office of Lokayukt, on the

basis of which, FIR bearing Crime No.67/98 was

registered in the office of Lokayukt at Bhopal, vide

Ex.P/15. Record with regard to mutation of land was

seized from the house of Accused/Appellant vide

Ex.P/16. Concerned record from the office of Tahsildar

was seized vide Ex.P/17. Arrest memo of appellant was

prepared vide Ex.P/18. Documents signed by the

Accused/Appellant were obtained from the office of

Tahsildar and seized vide Ex.P/20. Specimen signature of

Accused/Appellants were taken and seized vide Ex.P/31,

P/32, P/33, P/34, P/35 and P/36. The alleged signatures,

specimen signature and natural signature of

Accused/Appellant were examined by State Disputed

Signature Examiner. Solution of sodium carbonate was

sent to chemical analysis to FSL, Sagar, vide Ex.P/53 and

a report thereof was also obtained vide Ex.P/54,

according to which, report of sodium carbonate and

phenolphthalein found to be positive. On 17.03.199,

sanction for prosecution was granted in the matter vide

Ex.P/1.

3. On completion of other formalities and investigation, a

charge-sheet was filed against the Accused/Appellant.

After filing of the charge sheet, the trial Court has

framed charges under Sections 7, 13(1) (d) read with

Section (13) (2) of the P.C. Act. The prosecution in order

to bring home the charge levelled against the

Accused/Appellant examined as many as 19 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. It was the

defence of the Accused/Appellant that Complainant -

Pratap Singh Tanwar (PW/2) had borrowed Rs.3,000/-

from him for operation of his mother which was returned

on the date of incident. The Accused/Appellant had not

demanded any bribe. The complainant (PW/2) had some

dispute with Shankar Prasad Sharma (PW/9), Advocate,

and due to the negligence of Shankar Prasad Sharma

(PW/9) the complainant could not get rin pustika.

Therefore, owing to dispute with Shankar Prasad

Sharma, Advocate, the complainant with the collusion of

Lokayukt Office falsely implicated him in the case.

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

and sentenced the Accused/Appellant in the manner as

described above.

5. Learned counsel for the appellant submits that in order

to convict the appellant, the learned trial Court has not

considered the evidence of the prosecution witnesses in

its true perspective and erred in appreciating the

evidence. He further submits that there is no valid

sanction granted under Section 19 of the P.C. Act so as

to initiate prosecution against the appellant. The

prosecution sanction has been granted without there

being any proper application of mind. It has been also

submitted by learned counsel that complainant Pratap

Singh (PW/2), in his Court statement, has not specifically

stated that the appellant demanded illegal gratification

from him and he fulfilled his demand rather what he

stated is that Complainant (PW/2) had borrowed

Rs.3,000/- from the appellant and he was demanding his

money. The acceptance of bribe amount by the

appellant from the complainant has not been proved. He

also submits that the statement of witnesses are full of

contradictions and there is no consistency and evidence

of the independent witnesses do not corroborate the

version of prosecution witnesses, therefore, no offence

under Section 7 or 13(1)(d) r/w 13(2) of the P.C. Act is

made out against the appellant until it is not proved that

there was any illegal demand and the voluntary

acceptance thereof. It is also submitted by learned

counsel that since there is no clinching and credible

material against the appellant to connect him with the

crime in question, presumption clause of the P.C. Act will

also not attract in this case. In support of submission,

learned counsel placed reliance on the decisions of

Hon'ble Apex Court in the matter of State of Kerala

and Anr. V. C.P. Rao1, Gulam Mahmood A. Malek Vs.

State of Gujarat2, B. Jayaraj Vs. State of Andhra

Pradesh3, P. Satyanarayana Murthy V. District

Inspector of Police, State of Andhra Pradesh and

Another4, State through Central Bureau of

Investigation V. DR Anup Kumar Shrivastava 5 and

decisions of this Court in the matter of Nohar Singh

Sahu V. State of C.G.6, Ashok Kumar Chandrakar V.

State of C.G.7, order dated 02.11.2018 passed in CRA

No.341 of 2004 (Mohammad Hanif and Others V.

State of C.G.) and order dated 04.10.2017 passed in

CRA No.851 of 2003 (Shani Ram Bhagat V. State of

C.G.).

6. On the other hand, learned State counsel supporting the

impugned judgment of conviction and order of sentence

submits that the trial Court has not committed any error

of law in convicting the Accused/Appellant and

appreciating the evidence of prosecution witnesses and

no interference is required by this Court.

1    2011 CJ(SC) 959
2    1981 SCC (Cri) 586
3    (2014) 13 SCC 55
4    (2015) 10 SCC 152
5    (2017) 15 SCC 560
6    2013(1) CGLJ 473
7    2011CJ(Chh) 162

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

the material available on record.

8. In this case, it is admitted by the Accused/Appellant that

at the relevant time he was posted as Patwari in Balod.

Complainant Pratap Singh (PW/2), in para 2 of his Court

statement, has stated that he had received 4.75 acre

agricultural land from his elder father by way of Will and

he has to get his name recorded in that land and a slip

thereof was to be prepared by the Patwari. Complainant

had old kinship with the applicant and 2-3 years prior to

the incident, the appellant was working with him in

NTPC. At the relevant time, his (complainant's) mother

was operated and for that he had borrowed Rs.3,000/-

from the Accused/Appellant. Complainant, in para 3, has

further deposed that first he had gone to Patwari for

making slip for getting his name recorded in the said

land but despite the direction of Tahsildar, the Patwari

had not prepared slip, thereafter, he had told Gunjlal

(PW/13) that Patwari did not make slip. This witness

(PW/2), further in para 4, deposed that thereafter he met

with S.P. Shri Shrivastava in Balco ITI. He too told that

the Patwari has not prepared slip for getting his name

recorded in land and he (complainant) was advised by

Mr. Shrivastava to lodge the report in C.B.I. Thereafter,

he came to Bilaspur and met with Mr. Gandhi and told

him that the Patwari is not preparing slip for getting his

name recorded in land and demanding Rs.3,000/- which

he (complainant) had borrowed from him (appellant).

Upon which, Mr. Gandhi called Inspector Israr Khan. At

that time, Gunjlal (PW/13) was also with him.

Complainant (PW/2) has also deposed that he had made

only oral complaint and nothing in writing was. This

witness, in para 5 of his evidence, has admitted his

signature as 'A to A' in written complaint (Ex. P/4) which

was addressed to Superintendent of Police, Lokayukt

Bilaspur Division, but later he deposed that Gunjlal

(PW/13) has written this complaint at the behest of

officials and no demand of illegal gratification was made

by the Accused/Appellant. At this stage, this witness has

been declared hostile by the prosecution. This witness

has denied all the suggestions of public prosecutor. He

has admitted his signature in Ex.P/5, Ex.P/6 and Ex.P/7.

This witness, in para 13 of his cross-examination, has

stated that the Accused/Applicant first shook hands with

him and took him and Gunjlal (PW/13) inside the room.

The appellant did not ask him whether he had brought

money or not. The Accused/Appellant had also asked

whether they have taken dinner or not and why they

came late night, then he (complainant) told him that he

has come to give money. He himself has admitted that

he (complainant) had come 'to return the borrowed

amount'. This witness has also stated that he does not

remember that at the relevant time he had said to return

borrowed amount or not. This witness has further stated

that the Accused/Appellant told him to keep the money

on table which he kept on table. He did not remember

whether the appellant had counted money or not. He

has also stated that it is not true that he had given

money in appellant's hand saying to count it. This

witness, further in para 19 and 20 of his cross-

examination, denied his police statement (Ex.P/14). He

has also stated in para 22 of his cross-examination that

he is illiterate and can only make his signature. Further,

in para 23, he states that he does not know the contents

of complaint and the same was not read over to him

while taking his signature. He has also stated that he

had good kinship with the Accused/Appellant due to

which he had borrowed money from him. The

Accused/Appellant had also told him that why he made

hurry in returning money, would have returned it later,

there was no need to worry about it. Ultimately, this

witness has specifically stated that the

Accused/Appellant had never demanded any bribe from

him. The amount of Rs.3,000/-, which was given to the

appellant, was not bribe but was borrowed amount.

9. Independent witness Dr. Radheshyam Mani Tripathi

(PW/4) has deposed as to the manner in which trap was

conducted. This witness, in para 19 of his examination-

in-chief, deposed that he had not seen the Complainant

(PW/2) giving money to the Accused/Appellant with his

own eyes.

10. M.L. Kusre (PW/5), other trap party witness, has also

deposed as to in which manner the trap was conducted.

This witness, in para 10 of his cross-examination, has

stated that the position of inside the room was not

visible to him from the place where he was standing.

Further, in para 11, he has deposed that he himself had

not seen the Complainant (PW/2) while giving bribe

money to the Accused/Appellant. He has also deposed

that before entering the house of the Accused/Appellant,

he had not given any of his search to Investigating

Officer Israr Khan (PW/18).

11. Shankar Prasad Sharma (PW/9), Advocate, who was

dealing the case of the Complainant (PW/2), has

deposed in para 3 of examination-in-chief that

Complainant (PW/2) had told him that the

Accused/Appellant was demanding money from him (the

Complainant). The Complainant (PW/2) had not told him

that how much money was the Accused/Appellant

demanding. He has further deposed that complainant

Pratap Singh (PW/2) told him that the Accused/Appellant

was demanding Rs.9,000/- when the order of rin pustika

and land right was passed by the concerned Court. This

witness has also deposed that he had adviced the

Complainant to file complaint against the

Accused/Appellant before the appropriate forum as he

(this witness) got the order passed by the Court.

12. Harisharan Chandra (PW/10) is the neighbour of the

Accused/Appellant. He has deposed that when he along

with Bhagirathi was sitting in the courtyard of the

Accused/Appellant and the appellant was sleeping on

the bench, at the relevant time, two persons came there

and asked whereabouts the Accused/Appellant. Then the

appellant woke up and asked these two persons that

from where had they come at late night. Thereafter, the

Accused/Appellant was taken inside the house by these

two persons. He did not know as to what happened

inside the house of the Accused/Appellant. This witness,

in para 08 of his cross-examination, has stated that at

that time the money was on the table. The vigilance

team had caught hold of the hands of the

Accused/Appellants. The money was not recovered from

the Accused/Appellant. It has been further deposed by

this witness that it is not true that the appellant, at that

time, had said that he had not demanded the bribe. It is

also not true that the appellant had said that the

Complainant (PW/2) had deliberately kept the money on

table.

13. Bhagirathi (PW/11) is Revenue Inspector, who, at the

relevant time, was residing with the Accused/Appellant

as he was assigned the duty of survey of slum area. He

has deposed that when he along with PW/10 were sitting

in the courtyard of the appellant, two persons came

there and inquired about the appellant. Thereafter, 2-4

persons again came there and entered the house of

Accused/Appellant. On hearing noise of conversation,

they went inside where they saw that two persons had

caught hold of hands of the Accused/Appellant. The

vigilance officer carried out written work and he (this

witness) came out of the house. This witness has been

declared hostile by the prosecution. In cross-

examination, this witness denied all suggestions of the

prosecution and stated in para 3 that he was not told by

the vigilance officers that they had caught the

Accused/Appellant taking bribe.

14. The learned Court below, in order to convict the

appellant in the crime in question, relied on the

testimonies of trap witnesses and documents prepared

by the prosecution and convicted the appellant. It is

pertinent to mention here that Complainant Pratap Singh

Tanwar (PW/2) has not supported the case of the

prosecution and turned hostile. That apart, complaint

(Ex.P/4), which is the genesis of staring point, is in

question in view of testimony of Complainant (PW/2).

15. In order to constitute an offence under Section 7 of the

Prevention of Corruption Act, 1988, 'proof of demand' is

a sine qua non. In B. Jayaraj (supra), the Supreme

Court held 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 : (AIR 2011 SC 608) and C.M. Girish Babu V. CBI (2009) 3 SCC 779 : (AIR 2009 SC 2022)."

16. In C.M. Girish Babu Vs. C.B.I., Cochin, High Court

of Kerala8, the Hon'ble Supreme Court observed as

under:-

"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."

17. In V. Sejappa V. State by Police Inspector

Lokayukt, Chitradurga9, it was also held by Hon'ble

Supreme Court in para 18 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

8 (2009) 3 SCC 779 9 AIR 2016 SC 2045

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."

18. As regards proof of demand and acceptance of illegal

gratification by the accused, this Court finds from the

evidence of Complainant Pratap Singh Tanwar (PW/2),

who was in good kinship with the appellant, that he had

borrowed Rs.3,000/- from the appellant for operation of

his mother and appellant was demanding that money.

The borrowed amount was of Rs.3,000/-, but as per

evidence of Shankar Prasad Sharma (PW/9), the

Complainant had told him that the appellant was

demanding Rs.9,000/- for getting his work done.

Complaint (Ex.P/4), which is genesis of starting point, has

been denied by Complainant Pratap Singh Tanwar (PW/2)

stating that the same was written by Gunjlal (PW/13),

who is the neighbour of complainant (PW/2).

Complainant (PW/2) has stated that he is illiterate and

can only make his signature. Therefore, the contents of

complaint (Ex.P/4), said to have been written on the

instruction of complainant (PW/2), creates doubt. That

apart, Panch witnesses (PW/4 and PW/5), who were

included in trap proceeding, have also not stated that

they have seen the Accused/Appellant accepting money.

The independent witnesses (PW/10), though not declared

hostile, has specifically stated in para 3 that the tainted

amount was kept on table, which were picked up,

washed and water turned into pink colour. Another

independent witness (PW/11) has turned hostile. Before

the Panch witness, transcription (Ex.P/11) was prepared.

A bare perusal of the said transcription reveals that it

was between the Complainant (PW/2) and one Gunjlal

(PW/13) and not the Accused/Appellant. There is nothing

in the said transcription which could indicate that the

accused made any demand for money.

19. The learned Court below, in its para 49, recorded its

finding that the on 16.06.1998 during the trap

proceeding, the Accused/Appellant obtained an amount of

Rs.3,000/- from complainant Pratap Singh Tanwar (PW/2)

but no plausible explanation could be given by the

Accused/Appellant that the said amount was obtained

legally. But, in the present case, as discussed above,

neither Complainant (PW/2) has stated about any demand

of bribe by the Accused/Appellant nor Panch witness

including the independent witnesses have stated about

any clear acceptance of bribe amount. There is

contradiction in the statement of Complainant (PW/2) and

Shankar Prasad Sharma (PW/9), Advocate, who was

dealing complainant's matter with regard to rin pustika

and land right. It has come in the evidence of Shankar

Prasad Sharma (PW/9), Advocate, that the Complainant

(PW/2) had told him that the Accused/Appellant was

demanding Rs.9,000/- as bribe, but the Complainant

(PW/2) has completely denied that any such bribe was

demanded by the Accused/Appellant. Furthermore,

Complainant (PW/2), in his cross-examination, specifically

stated that the Accused/Appellant never demanded any

bribe from him and the amount of Rs.3,000/- which was

given to the Accused/Appellant was the borrowed one.

Considering the aforesaid testimony of PW/2 and PW/9,

false implication of the Accused/Appellant in the crime in

question cannot be ruled out. In the present case, though

the tainted money has been recovered from the house of

the Accused/Appellant, but according the prosecution

witness, in particular Complainant (PW/2), the

Accused/Appellant had not demanded any bribe and the

Hon'ble Supreme Court in B. Jayaraj (supra), C.M. Girish

(supra) and V. Sejappa (supra) held that mere recovery

of currency notes cannot constitute the offence unless it

is proved beyond all reasonable doubt that the accused

has voluntarily accepted the money knowing it to be

bribe. The burden of proof with regard acceptance or

obtained amount other than legal remuneration is upon

the prosecution, but, in the instant case, the prosecution

has utterly failed to establish this fact beyond all

reasonable doubt. There are contradictions in the

evidence of prosecution witnesses.

20. From the above discussion, the prosecution has not been

able to prove that the Accused/Appellant had made any

demand for bribe money or he had accepted any money

as bribe.

21. As a sequel, the appeal is allowed. The judgment of

conviction and order of sentence under challenge is set

aside. Accused/appellant is acquitted of the charges

framed against him. The appellant is on bail, his bail

bond shall stands discharged.

22. Record of the Court below be sent back along with a copy

of this judgment forthwith for information and necessary

compliance.

Sd/-

(Rajani Dubey) JUDGE

Pekde