Chattisgarh High Court

Rameshwar Prasad Ratre vs State Of C.G on 10 January, 2022

                                1

                                                            NAFR
      HIGH COURT OF CHHATTISGARH, BILASPUR

             Judgment Reserved on : 29.09.2021
                Judgment Passed on : 10.01.2022

                      CRA No. 451 of 2002

     Rameshwar Prasad Ratre, S/o late Shri Samyalal Ratre, aged
      about 41 years, Suspended Sub-Inspector, R/o Police Line
      Raipur, Tahsil and District Raipur (C.G.)

                                                  ---- Appellant
                            Versus

     State of Chhattisgarh, Through : Vishesh Police Sthapana
      (Lokayukt), Aarakshi Kendra, Bhopal Ekai Raipur. (C.G.)
                                               ---- Respondent

For Appellant - Mr. R.S. Marhas and Mr. Akhtar Hussain, Advocates.

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



             Hon'ble Smt. Justice Rajani Dubey

                          C A V Order

This appeal arises out of the judgment of conviction and

order of sentence dated 09.04.2002 passed by the Special

Judge (Prevention of Corruption Act)/ 1 st Additional Sessions

Judge, Raipur (C.G.) in Special Criminal Case No.07/1998

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

(d) read with Section (13) (2) of Prevention of Corruption Act,

1982 (for short 'the P.C. Act') and sentencing him to undergo

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

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

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

(Ex.P/3) was submitted in the Vishesh Police Sthapana

(Lokayukt), Raipur, by complainant Amiya Agnivanshi against

Sub-Inspector Rameshwar Prasad Ratre (appellant), who was

posted as Thana In-charge at Police Station Mouhadapara

(C.G.), alleging therein that in the month of December, 1996,

some dispute took place between him and security guard of

Tar Office, thereafter, a complaint was lodged by Security

Guard at Police Station Mouhadapara against the

Complainant. The Complainant was called by the appellant

who was Thana In-charge of Mouhadapara and demanded

illegal gratification of Rs.10,000/- for releasing him on bail but

the matter could settle for Rs.6000/- only. Thereafter,

suddenly the complainant had to go Riwa in connection with

urgent work. The appellant frequently demanded illegal

gratification. It has been also alleged in the complaint that

one day the appellant called one of the guarantor and asked

him to give Rs.3000/-. When the complainant came from Riwa

on 25.12.1997 then he came to know all the episode of the

matter. For confirmation of the demand of bribe, the

Complainant was given a tape-recorder vide Ex.P/4. The

conversation was recorded in a micro tape-recorder vide

Ex.P/2. Thereafter, the Complainant returned to the office of

Lokayukt, Raipur with recorded conversation and there he

again submitted a written complaint and a Preliminary

Proceedings Panchnama was prepared vide Ex.P/5. The

Complainant 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. A demonstration of

the trap proceeding was given to the Complainant and the

panch witnesses. A trap party proceeded towards the shop

mentioned by the appellant. On 27.12.1997, appellant came

in front of the Nagrik Sahkari Bank as per the predestined time

and place and took the bribe amount of Rs.3,000/- from the

appellant. After giving the tainted money to the appellant, the

Complainant gave a signal to the trap party on which the trap

party came there and hands of the appellant were caught.

Seizure memo of tainted money was prepared vide Ex.P/6 and

panchanama thereof was also prepared vide Ex.P/7. Arrest

memo was prepared vide Ex.P/9. Transaction of conversation

took place between the appellant and complainant was made

vide Ex.P/10. Proceedings of Spot Panchanama was prepared

vide Ex.P/12. The hands of the appellant was dipped into a

solution of sodium carbonate on which the 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. 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/119. After the proceedings at the scene, the

accused was arrested and released on bail. Numbered FIR was

registered on 27.12.1997 vide Ex.P/24. Seized articles were

sent for its chemical analysis to FSL, Sagar vide Ex.P./29.

Report thereof was obtained vide Ex.P/30, according to which,

report of sodium carbonate and phenolphthalein found to be

positive. On 04.03.1998, sanction for prosecution was

granted in the matter vide Ex.P/20.

03. On completion of other formalities and investigation, a

charge-sheet was filed against the 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 10

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 appellant that Assistant Sub-Inspector Shri

Dubey had registered the offence against Complainant.

Complainant is of criminal nature and a case was registered

against brother of Dilip Singh Rathore, Investigating Officer,

for taking the jeep. Therefore, Shri Rathore, Investigating

Officer of the case, had expressed displeasure with him

(appellant) and threatened. Further defence of the appellant is

that Dilip Singh Rathore's in-laws and Amiya Agnivanshi's

house are in the same locality and both of them have made a

case by collusion with each other preparing forged

documents, and forging his signatures in the documents,

whereas the same got checked by the handwriting expert.

Further defence is that even in the copy of the challan

received, the signature of the witnesses on many documents

were taken later. One defence witnesses namely R.C. Das

(DW/1), Assistant Excise officer, was 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 argued that learned

trial Court while passing the impugned judgment did not

consider the evidence of prosecution witnesses in its face

value and erred in relying on them. The challan produced

before the learned Court below is doubtful and the fabricated.

Learned counsel further argued that in the present case, the

signature of prosecution witnesses was taken by the police

without any order of the Court and they filled up the blanks by

way of putting signature of prosecution witnesses in the

challan, which clearly shows that the challan which was

produced before the learned trial Court is fabricated and

defective. It has been also argued by learned counsel that the

prosecution did not produce the tape-recorder in which

conversation of the complainant and appellant had taken

place. On 14.03.2002 the matter was fixed for further hearing

on 18.03.2002 and the signature was taken in the order sheet

and the case was adjured for evidence. On the same day i.e.

on 14.03.2002, seized property i.e. currency notes and tape

were produced before the Court and same was opened and

sealed in absence of the appellant, which is contrary to the

settled law. The practiced adopted by the prosecution in this

case raised serious doubt. It has been also argued that on

23.11.2000, the appellant had made an application under

Section 340 of Cr.P.C. before the lower Court for examination

of alleged signature and other defects of challan praying that

it is matter of inquiry, therefore, an inquiry be made first and

thereafter trial be initiated. The Court below also accepted it

to be a matter of inquiry but on 22.02.2001 the lower Court

rejected his application. It is argued that when an application

is filed for inquiry, then inquiry ought to have been made first

but instead of inquiry the learned Court below proceed

further, which also raised doubt. It is next submitted that the

important witness of the prosecution namely Subhash Das

(PW/3), who was included in the trap party, has denied the

whole transaction between complainant and the appellant,

therefore, in absence of any clinching and incriminating

material, the appellant cannot be held guilty of the offence. In

support of his submission, learned counsel placed reliance on

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

Vijayakumar V. State of Tamil Nadu1, C.M. Girish Babu

V. CBI, Cochin, High Court of kerala2 and decisions of this

High Court in the matter of Rohit Kumar Sahu V. State of

Madhya Pradesh through Lokayukt3 and Shivprasad

Kuldeep V. Pramod Kumar and others4.

07. Per contra, learned counsel for the State supporting the

1 (2021) 3 SCC 687 2 (2009) 3 SCC 779

impugned judgment of conviction and order of sentence

submits that the trial Court has not committed any illegality or

infirmity while convicting the appellant and the same does not

call for any interference by this Court.

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

the material available on record.

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

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

acceptance and (ii) recovery.

10. In the case in hand, it is not disputed that at the relevant

time the appellant was posted as Sub Inspector at Police

Station Mouhadapar. Complainant Amiya Agnivanshi was not

examined before the learned trial court. His brother Pavitra

Agnivanshi (PW/9) has been examined who has stated in his

examination that in the year 1999 his brother Amiya

Agnivanshi left for heavenly abode. In the year 1997, his

brother was called by police station Moudahapara. This fact

was informed to this witness by his brother Amiya Agnivanshi.

Thereafter, he went to the police station where he was

informed by S.H.O. Dubey that his brother was taken to D.K.

Hospital for medical examination. This witness has also

stated that S.H.O. Dubey had told that his brother had a fight

with the watchman of taar ghar. It is worth mentioning here

that this witness has not supported the case of the

prosecution and denied all suggestions of prosecution.

11. Jai Ram Bhoi (PW/1) is the Panch Witness. This witness

has stated about the initial proceeding carried out by them

vide Ex.P/5 as to how they prepared number of currency notes

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

stated that he along with employees of Lokayukt office caught

the appellant. The appellant dropped the money on the

ground which was kept in his hand. The money dropped on

the ground was taken by this witness and complainant Amiya

Agnivanshi. Notes fell in the drain were also collected by

them. This witness, in para 32 of his cross-examination, has

admitted that no person can be present at two places at the

same time. This witness has admitted that his presence

shown in Ex.P/11 and P/12 at different places at the same time

is not correct. Further, in para 33, this witness has admitted

that he cannot say if the sentence marked as B to B "Vsªi ds le;

fd;k x;k" was added to the last page of Ex.P/12 after his

signature. Perusal of Ex.P/12 would show that the particular

part which is marked as 'B to B' was added separately.

12. Another Panch witness namely R. Das has not supported

the case of the prosecution as he entered as defence witness

(DW/1). This witness has stated in para 2 that appellant was

called to co-operative bank but he did not meet there.

Thereafter, they went near Raj Kumar College where also he

was not there. At about 9.00 pm, they reached near Phool

Chowk in search of the appellant and thereafter, the time was

fixed with the appellant by the complainant over telephone.

This witness has also stated that between 9.00-9.30 pm, they

reached near Phool Chowk and stood scattered. As there was

dark, therefore, only packing was done on the spot and writing

work was executed at Lokayukt Office. This witness has also

stated that his signature was obtained in office. This witness,

in para 7 of his evidence, has stated that they were directed

to watch transaction and hear conversation but as he was

standing 50 feet away at the time of trap and how he could

see and here the same ? This witness has also stated that he

had seen the conversation between complainant Amiya

Agnivanshi and the appellant at the time of incident but did

not see Amiya Agnivanshi taking money out of his pocket and

giving it to the appellant.

13. Hon'ble Supreme Court in the matter of C.M. Girish

Babu V. CBI, Chchin, High Court of Kerala), reported in

(2009) 3 SCC 779, held 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 th 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."

14. Again recently Hon'ble Supreme Court in the matter of

N. Vijayakumar V. State of Tamil Nadu reported in (2021)

3 SCC 687 reiterating the judgment of C.M. Girish (supra), it

was held as under:-

"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 Section 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."

"27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj ((2014) 13 SCC 55 read as under : (SCC pp. 58-59)

"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 : (2013) 2 SCC (Cri) 89 and C.M. Girish Babu V. CBI (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1.

8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the coomplainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial Court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or

pecuniary advantage cannot be held to be established.

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."

The abovesaid view taken by this Court fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial Court is a "possible view" as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once conviction is recorded under the provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the

same time it is also to be noted that whether the view taken by the trial Court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.

15. In the instant case, complainant Amiya Agnivanshi died

during the pendency of the case and could not appear before

the learned trial Court for his evidence. From perusal of the

statements of panch witness Jai Ram Bhoi (PW/1), Pavitra

Agnivanshi (PW/9), brother of complainant Amiya Agnivanshi,

and Investigating Officer Dilip Singh Rathore (PW/10), it is

clear that PW/1, who was involved in trap proceeding, has

admitted that in several papers some lines were added after

his signature and PW/9 has not stated anything specific which

could bring home the guilt of the appellant beyond shadow of

doubt, in fact, this witness has not supported the case of the

prosecution. PW/10, in para 15, has stated that he recorded