Chattisgarh High Court
Smt.Shakuntala Mishra vs State Of C.G on 10 January, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 15/09/2021
Order Delivered on 10/01/2022
CRA No. 566 of 2001
Smt. Shakuntala Mishra W/o Narendra Mishra aged about 40 years,
R/o Village-Chapal, District- Raigarh, Chhattisgarh.
---- Appellant
Versus
State of Chhattisgarh.
---- Respondent
For Appellant : Ms. Sharmila Singhai, Adv., Assisted
by Mr. Abhishek Saraf, Adv.
For State/Respondent : Ms. Subha Shrivastava, P.L.
Hon'ble Smt. Justice Rajani Dubey
C A V Order
Date : 10/01/2022
1. The present appeal arises out of the impugned judgment of
conviction and order of sentence dated 09.06.2001 passed by the learned
Special Judge, Raigarh (C.G.), in Special Criminal Case No. 1/1995 whereby,
the learned Special Judge has convicted and sentenced the appellant as
under :-
Sl.No. Conviction Sentence
U/s 13(1)(D)(2) r/w 13(2) of R.I. for 6 months and fine of Rs.
1. Prevention of Corruption Act, 500/- in default of fine additional
1988. R.I. for 1 month.
R.I. for 6 months and fine of Rs.
U/s 7 of the Prevention of 500/- in default of fine additional
2.
Corruption Act, 1988. R.I. for 1 month. All sentences run
concurrently.
2. Brief facts of the case are that on 12.06.1991, sister of the
complainant namely Naandai was admitted at Primary Health Center,
Pusour for her delivery, where the accused/appellant was posted as Nurse.
It is alleged that the appellant demanded a sum of Rs. 250/- from the
complainant for the said delivery. Thereafter, on 12.06.1991, a sum of Rs.
100/- was given to the appellant and remaining amount of Rs. 150/- was to
be given on 13.06.1991. The complainant was not willing to give the bribe
of Rs. 150/- to the appellant and, therefore, on 17.06.1991 he lodged a
written complaint (Ex.-P/3). Thereafter, Deputy Superintendent of Police,
Shri R.D. Deewan directed the Supervisor, Hemant Khare to inquire into the
matter. It is the further case of prosecution that on 17.06.1991 certain
preparations were made prior to trapping the appellant and as per
preplanned schedule, powder of Phenolphthalein was poured on the 2
currency notes of Rs. 100/- and Rs. 50/- for trap proceedings. On
completion of other formalities, trap party went to Primary Health Center,
Pusour, complainant was asked to go to the said health center. He went to
the said health center and gave tainted currency notes to the appellant.
Thereafter, complainant came out of the said health center and gave a
signal to the trap party. After receiving the said amount the appellant went
to her residence, who was followed by the trap party. In her residence, one
inspector Hemant Khare inquired regarding her name and also asked about
the said amount of Rs. 150/- which was holding in her hand. The trap party
gave their introduction and prepared a solution of Sodium Carbonate,
hands of the appellant were washed into the solution on which colour of
the solution turned pink. The said currency notes were seized vide Ex.-P/5.
The house of the appellant was also searched by the trap party as well as
map was prepared vide Ex.-P/8, later on the said prepared solution was
sent to Forensic Science Laboratory, Sagar vide Ex.-P/11. On the basis of
intimation as registered by the Special Police Establishment, Bilaspur at
Police Station, Bhopal, Crime No. 72/1991 was registered against the
appellant and after investigation charge-sheet was filed and charges were
framed under Sections 7, 13 (1)(D) r/w Section 13(2) of Prevention of
Corruption Act, 1988 against the appellant.
3. So as to hold the accused/appellant guilty, the prosecution has
examined as many as 12 witnesses. Statement of the accused/appellant
was also recorded under Section 313 of the Cr.P.C. in which she denied the
circumstances appearing against her and pleaded innocence and false
implication in the case.
4. Upon consideration of oral and documentary evidence the trial Court
held that the prosecution has established the guilt of the
accused/appellant under Sections 13(1)(D)(2) r/w 13(2) and 7 of the
Prevention of Corruption Act, 1988, and sentenced her as mentioned
above. Hence, this appeal.
5. Learned counsel for the appellant submits that the judgment of
conviction is illegal and passed in absence of reliable evidence. The
prosecution story itself is evident and reveals a concocted story to
implicate the appellant in a false case. Moreover the prosecution has
completely failed to establish the charges against the appellant beyond
reasonable doubt. She next submits that the main witness Brihaspati Patel
(PW-3) has deposed that Rs. 250/- was demanded by the appellant for
delivery of his sister and complainant Brihaspati Patel paid Rs. 150/- to the
appellant and get discharged his sister, but in his complaint he had stated
that at the time of discharge of his sister, he gave Rs. 100/- to the
appellant and Rs. 150/- was to be paid later on. The evidence of PW-3 is
not reliable because his evidence is full of contradiction and it is doubtful
that after getting his sister discharged from the hospital, why the appellant
would demand the money and why the complainant would give that
amount to the appellant ? Therefore, the prosecution has completely failed
to prove the charges against the appellant. She further submits that as per
Section 17 of the Prevention of Corruption Act, the investigation must be
done by the person minimum the rank of Addl. S.P., but in the present
case, the investigation has been done by the incompetent person so the
investigation as well as filing of the charge-sheet is illegal and on that
basis neither the trial can be conducted nor the judgment can be
pronounced. Even the real sister of the complainant who was admitted in
the hospital for delivery and later on discharged, has not supported or
corroborated the statement of the complainant so it reveals the
prosecution has failed to prove charges against the appellant and
appellant deserves to be acquitted. She lastly submits that the learned
trial Court also found that there are contradictions in the statement of the
complainant even in paragraph No. 12 of the judgment the trial Court has
discussed this fact but the learned trial Court has passed conviction order
therefore, the order deserves to be quashed. In support of her arguments
learned counsel for the appellant placed reliance on the judgment of the
Hon'ble Supreme Court in the matters of Mukhtair Singh (Since
Deceased) Through His Legal Representative Vs. State of Punjab 1,
Krishan Chander Vs. State of Delhi 2, R.P.S. Yadav Vs. Central
Bureau of Investigation3, C. Sukumaran Vs. State of Kerala4, Union
of India And Another Vs. Sova Ispat Limited and Others 5, T.K.
Ramesh Kumar Vs. State Through Police Inspector, Bangalore 6,
1 (2017) 8 SCC 136.
2 (2016) 3 SCC 108.
3 (2015) 11 SCC 642.
4 (2015) 11 SCC 314.
5 (2015) 11 SCC 321.
6 (2015) 15 SCC 629.
State of Punjab Vs. Madan Mohan Lal Verma7, and on the judgment of
this High Court in Criminal Appeal No. 2243/1999 vide judgment dated
28.05.2021 passed in the matter of Yaduram Banote Vs. State of M.P.
(Now Chhattisgarh).
6. Opposing the above arguments, learned counsel appearing for the
respondent/State supported the impugned judgment. She submits that
from the evidence adduced by the prosecution both the demand and the
acceptance of bribe money is proved. There is sufficient evidence on
record to show that the bribe money was recovered from the appellant.
Therefore, the trial Court has rightly convicted the appellant.
7. Heard both the counsel for the parties and perused the entire
material available including the statements of witnesses with due care.
8. It is an admitted fact before learned trial Court that at the time of
incident appellant/accused was posted as 'Nurse' at Primary Health Center,
Pusour.
9. In case of an illegal gratification, there are three essential
ingredients to constitute the offence. They are (i) demand, (ii) acceptance
and (iii) recovery.
10. In the case of Mukhtiar Singh (Since Deceased) Through His
Legal Representative Vs. State of Punjab, it was held by the Supreme
Court in para 14 which reads thus :-
14. In P. Satyanarayana Murthy1, this Court took note
of its verdict in B. Jayaraj V. State of A.P. 2 Underlining
the mere possession and recovery of currency notes
from an accused without proof of demand would not
establish an offence under Section 7 as well as Sections
13(1)(d)(i) and (ii) of the Act. It was recounted as well
that 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
proved. Not only the proof of demand thus was held to
be an indispensable essentiality and an inflexible
statutory mandate for an offence under Sections 7 and
13 of the Act, it was held as well qua Section 20 of the
7 (2013) 14 SCC 153.
1 P. Satyanarayana Murthy V. State of A.P. (2015) 10 SCC 152: (2016) 1 SCC (Cri) 11
2 (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543
Act, that any presumption thereunder would arise only
on such proof of demand. This Court thus in P.
Satyanarayana murthy on a survey of its earlier
decisions on the prerequisites of Sections 7 and 13 and
the proof thereof summed up its conclusions as
hereunder: (SCC p. 159, para 23)
"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 therefor, 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 th 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 Sections 7 or 13 of the Act would not entail his
conviction thereunder."
11. In the instant case complainant has admitted in written complaint
(Ex.-P/3) that the appellant demanded Rs. 250/- and he paid Rs. 100/- on
the same day and Rs. 150/- was to be paid later on. But in his statement
he has stated that :-
1- esjh cgu dh fMysojh ds nkSjku [email protected]& :i;s dh ekax dh xbZ Fkh ftldk
vk/kk iSlk Ms<+ lkS :i;s nsdj esjh cgu ukunkbZ dh iqlkSj vLirky ls NqV~Vh
djkdj ys vk;s Fks rFkk Ms<+ lkS :i;s ckn esa nsxsa ckssys FksA
3- iSls ds fy, eSa yM+ds dks Hksth Fkh iSlk tqxkM+ ugha gqvk D;k\ rc eSaus dgk
fd iSlk dk tqxkM+ gks x;k gS vkSj eSaus iSls dks vkjksih dks ns fn;kA iSls dks
ysdj vkjksih vius dejs esa tk jgh Fkh rc eSa b'kkjk fd;k rc /kkHkkbZ cgka
igqapsA /kkHkkbZ us vkjksih dks ogha jksddj iwNrkN fd;kA /kkHkkbZ us vkjksih
ls ;g dgk fd c`gLifr iVsy ls vki iSlk fy;s gks D;k\ rc vkjksih us iSlk
ysuk Lohdkj fd;kA
12. Naandai (PW-5) has not supported the case of prosecution and she
has stated that neither at the time of delivery nor after the delivery
accused/appellant has demanded money from her and even her brother
had not told her about the said demand. Therefore, the prosecution has
declared her hostile.
13. O.P. Dhamai (PW-2) has stated that :-
4- tc ge yksx ijNh esa igqaps rc vkjksih vLirky ds vgkrs esa fLFkr vius
vkokl esa tk pqdh FkhA vkjksih tc vius vkokl ls ckgj vkbZ rc ge mlls
iwNs fd vkosnd c`gLifr us vkidks iSlk fn;k gS D;k rc vkjksih us dgk fd
gka fn;k gSaA bl ij geus dgk fd iSlk dgk gSa rc vanj dejs esa tkdj njkt
ds vanj ls iSls ykdj nhA
13- c`gLifr gekjs ikl lkeus vkdj b'kkjk fd;k vkSj crk;k fd eSaus iSls ns
fn;s gSa bl ij eSa vkSj fujh{kd [kjs c`gLikfr ds b'kkjs ls rqjar ijNh esa pys
x;sA tc eSa vkSj [kjs ijNh esa igqaps rks vkjksih ijNh esa ugha FkhA ijNh ls
vkjksih dk edku djhc 20 QhV dh nwjh ij gSA tc ge yksx iqlkSj x;s Fks
ml le; nksuksa vkj{kd Hkh lkFk esa FksA tc eSa vksj fujh{kd [kjs ijNh esa igqaps
mlh le; Vªsi ny ds nks vU; vkj{kd vkSj Qszadfyu xokg Hkh ijNh esa vk
x;s Fks vkSj ogha ls ge yksx vkjksih ds ?kj pys x;sA
14- fujh{kd gseUr [kjs us vkjksih dks vkokt nsdj ?kj ds ckgj cqyk;kA
vkjksih vkSj gseUr [kjs ds chp ckr gqbZ vkSj vkjksih ?kj ds vanj xbZ vkSj
mlus iSlk ykdj gseUr [kjs dks nhA uksV dh tIrh ?kksy dh dk;Zokgh ds ckn
dh xbZ FkhA vkjksih ds edku ds vkaxu esa lkjh dk;Zokgh gqbZ FkhA
14. G. Franklin (PW-8) has stated that :-
3- ulZ iSlk ysus ds ckn vius DokVZj esa pyh x;h Fkh] og cjk.Ms esa [kM+h Fkh]
fotysal okyksa us ml ulZ dk uke iwNk rks og ulZ crk;h fd esjk uke
'kdqUryk feJk gS] fotysal okys viuk ifjp; fn;s fd Qfj;knh vkids fo:)
esa f'kdk;r fd;k gS vksj vkidks iSlk fnk gS] rks ulZ cksyh fd eSa gkFk esa iSlk
j[kh gwaA
4- ;g ckr lgh gS fd eSa vius c;ku dh QksVks dkWih tks bl ekeys esa yxh gS
iwoZ eas izkIr dh gwa] bldh QksVks dkWih esjs ikl gSA eSaus c;ku dh tks QksVks
dkWih izkIr dh gS mls dbZ ckj i<+h gwaA
9- vkjksfi;k us Qfj;knh c`gLifr iVsy ls esjs lkeus dksbZ iSls dh ekax ugha dh
Fkh] Qfj;knh c`gLifr iVsy us esjs lkeus vkjksfi;k dks dksbZ iSlk ugha fn;k
FkkA
15. In the case of R.P.S. Yadav Vs. Central Bureau of
Investigation8, it was held by the Apex Court in para 10 which reads
thus :-
10. In fact, we do not find any such legally acceptable
evidence either from PW 3 or from the other so-called
independent witness PW 6 or the shadow witness in
8 (2015) 11 Supreme Court Cases 642.
order to show that the mandatory requirement for
conviction under Sections 7 and 13(2) read with Section
13(1)(d), namely, the demand, acceptance and recovery
was chronologically proved as against the appellant. In
the light of our above conclusion based on the analysis
of the evidence led before the Court, we are constrained
to hold that the conviction imposed on the appellant by
the trial Court as well as confirmation of the same by the
High Court cannot be sustained.
16. In the case of B. Jayaraj v. State of A.P.9, it was held by the Apex
Court in para 8 which reads thus :-
8. ... 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.
17. Recently, in N. Vijayakumar case (supra), reiterating the judgment
of B. Jayaraj case (supra), it was held by the Supreme Court, which reads
thus :
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
9 (2014) 13 Supreme Court Cases 55 : (2014) 5 SCC (Cri) 543.
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 Sections 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.
18. In the instant case, the story of demand is not corroborated by
the sister of complainant for whom the alleged bribe money was
given. Neither the punch witnesses nor the other witnesses have
stated either to show that the appellant has accepted the bribe
money. Both the punch witnesses have not supported the statement of
each other. O.P. Dhamai (PW-2) has stated that the accused went
inside her house, took the money and gave it to Hemant Khare, other
punch witness G. Franklin has stated that when the trap party reached
at the house of accused, the accused was standing at verandah.
Hemant Khare (PW-6), I.O. has stated that Brihaspati Patel did not give
any money to the accused in front of him nor the accused ask for any
money from the complainant. When he called to the accused from
outside, the accused came out from inside the house and when the
accused came out, the money was kept, but where the money was
kept, it is not remembered by him. Punch witness O.P. Dhamai (PW-2)
has stated that when asked about the bribe money, then the accused
went inside the house and bring the money from inside the drawer.
19. On a minute examination of the above evidence adduced by the
prosecution, in my considered view, the entire case of the prosecution is
suspicious, because there is no corroborative evidence of demand and
acceptance even the sister of the complainant has not supported the case
of prosecution. In the case of State of Punjab vs. Madan Mohan lal
Verma10, it was held by the Apex Court in para 11 which reads thus :-
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 in not sufficient to
fasten guilt, in the absence of any evidence with regard
to demand and acceptance of the amount as illegal
gratification. Hence, the burden rests on the accused to
displace the statutory presumption raised under Section
20 of the 1988 Act, by bringing on record evidence,
either direct or circumstantial, to establish with
reasonable probability, that the money was accepted by
him, other than as a motive or reward as referred to in
Section 7 of the 1988 Act. While invoking the provisions
of Section 20 of the Act, the court is required to consider
the explanation offered by the accused, if any, only on
the touchstone of preponderance of probability and not
on the touchstone of proof beyond all reasonable doubt.
However, before the accused is called upon to explain
how the amount in question was found in his possession,
the foundational facts must be established by the
prosecution. The complainant is an interested and
partisan witness concerned with the success of the trap
and his evidence must be tested in the same way as that
of any other interested witness. In a proper case, the
court may look for independent corroboration before
convicting the accused person. (Vide Ram Prakash Arora
v. State of Punjab11, T. Subramanian v. State of T.N.12,
State of Kerala v. C.P. Rao 13 and Mukut Bihari v. State of
Rajasthan14.)
20. So far as recovery is concerned the appellant took a plea that
the sister of the complainant has not been discharged from the
10 (2013) 14 Supreme Court Cases 153.
11 (1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498
12 (2006) 1 SCC 401 : (2006 1 SCC (Cri) 401
13 (2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714
14 (2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136
hospital whereas they had left the hospital without permission of the
Doctor. Naandai, sister of the complainant herself has admitted this
fact in para 4 that the day when she got delivered, her brother had
taken her to his house and the doctor did not discharge.
21. Munnal Lal Yadav (PW-4), Compounder has admitted this fact
that on 12.06.1991 Naandai W/o Nandau was admitted in the said
hospital for delivery. He cannot tell as to on what date she was
discharged. In Ex.-P/2, Dr. Uraon has written that on 12.06.1991
Naandai left the hospital after delivery without informing.
22. So looking to the whole story of prosecution, statement of the
complainant's sister, panch witnesses and on above material
contradictions in the statements of the witnesses, the entire story
narrated by the prosecution becomes doubtful. The evidence adduced
by the prosecution, in my considered view, both the demand and
acceptance of bribe money by the appellant is not established.
Therefore, the conviction imposed upon the appellant by the trial
Court is not sustainable and the appellant is entitled to get benefit of
doubt.
23. Consequently, the instant appeal is allowed. The judgment of
the trial Court under challenge is set aside. The appellant is acquitted
of the charges framed against her. Fine amount, if any, be refunded to
the appellant. As the appellant is on bail, she need not surrender and
her bail bonds and sureties stand discharged.
Sd/-
(Rajani Dubey)
JUDGE
H.L. Sahu
