Saddam Prasad Thakur (Died) ... vs State Of Chhattisgarh
2022 Latest Caselaw 3805 Chatt

                                       1

                                                                      NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR
                      Order Reserved on 29/04/2022
                      Order Delivered on 16/06/2022
                           CRA No. 1283 of 2003
      Saddam Prasad Thakur (Died) Through Legal Heirs- As Per Honble
       Court          Order        Dated-          25-03-2022
       1.1 - (A) Harendra Singh Thakur S/o Late Saddam Prasad Thakur,
       Aged About 47 Years R/o Tehsil Chowk, Pendra Road, District
       Marwahi,          Pendra,          Gaurela         Chhattisgarh.
       1.2 - (B) Balwant Singh Thakur, S/o Late Saddam Prasad Thakur,
       Aged About 49 Years R/o TTC Colony, Mana Camp, Raipur, District
       Raipur, Chhattisgarh.
                                                             ---- Appellant
                                     Versus
      State of Chhattisgarh Through Special Police Establishment
       Lokayukt Office, Unit Raipur, Chhattisgarh.
                                                           ---- Respondent

For Appellant                    :     Mr.Shobhit Koshta, Adv.
For State/Respondent             :     Mr. Sudeep Verma, Dy. G.A.


                   Hon'ble Smt. Justice Rajani Dubey
                                 C A V Order

Date : 16/06/2022

1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 02.12.2003 passed by the learned Special Judge, and 1st Additional Sessions Judge, Raipur (C.G.), in Special Case No. 06/2000 whereby, the learned Special Judge has convicted and sentenced the appellant as under :-

Sl.No. Conviction Sentence

U/s 13(1)(D) r/w 13(2) of R.I. for 4 years and fine of Rs.

1. Prevention of Corruption Act, 1000/- in default of fine additional 1988. R.I. for 2 month.

R.I. for 2 years and fine of Rs. 500/-

U/s 7 of the Prevention of in default of fine additional R.I. for

2. Corruption Act, 1988. 1 month. All sentences run concurrently.

2. Brief facts of the case are that the appellant was working as a

teacher, Diesel Mechanic Trade, I.T.I., Mana and complainant Praveen Kumar Chandrakar (PW-3) was the student of diesel mechanic Trade for the academic session 1999. The final examination had taken place in the month of July 1999 and the complainant was got failed in two subjects for which on 23.09.1999 the present appellant demanded Rs. 2300/- as bribe for passing him in two subjects but the complainant did not want to give the bribe amount to the appellant hence on 24.09.1999 he contacted the office of Special Police establishment, Raipur and reported the matter. The police in-charge gave him a small tape recorder, instructed him to tape the conversation between them. Hence the complainant contacted the appellant and recorded the conversation and handed it over to the police on 27.09.1999. Thereafter police registered the case 0/89 and obtained the written complaint of the complainant, thereafter as per the direction of the police authority the complainant gave Rs. 2100/- to the appellant. It is the further case of prosecution that certain preparations were made prior to trapping the appellant and as per the preplanned schedule, powder of Phenolphthalein was poured on one currency note of Rs. 500/-, eight notes of Rs. 100/- and sixteen notes of Rs. 50/- total Rs. 2100/- for trap proceedings. After completion of other formalities, the trap party went to I.T.I. Mana. The complainant also went along with them and gave tainted currency notes to the appellant. Thereafter, the complainant came out from there and gave a signal to the trap party. After receiving the said amount the appellant kept currency notes in the pocket of his shirt. The trap party gave their introduction and prepared a solution of Sodium Carbonate, hands of the appellant were washed the solution on which colour of the solution turned pink. The said currency notes were seized. Later on, the said prepared solution was sent to Forensic Science Laboratory, Sagar. During that time the police party trapped the appellant and thereafter filed a charge sheet against the appellant. Learned Special Judge framed charges under Section 7 and Section 13 (1)(d) r/w Section 13(2) of the Prevention of Corruption Act, which is registered as Special case No. 06/2000.

3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 08 witnesses whereas the appellant examined one witness in his defence and one document Ex.-D/1. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded his 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) r/w Section 13(2) and 7 of the Prevention of Corruption Act, 1988, and sentenced him as mentioned above. Hence, this appeal.

5. Learned counsel for the appellant submits that the order of conviction and sentence passed by the learned Special Judge is illegal, incorrect and perverse. He next submits that the learned Special Judge has committed error in finding the appellant guilty and wrongly sentenced him. The learned Special Judge has committed an error in appreciating exhibit- D/1 which clearly shows that the complainant obtained Rs. 2100/- from the appellant for the construction of the house and promised to return the said amount. He also submits that the learned Special Judge did not consider the oral evidence of Nizam Qureshi (PW-5) who has stated in para 11 of the cross-examination that the present appellant inform him in a nervous manner that these days lending money becomes an offence. This clearly shows that in fact, the complainant obtained Rs. 2100/- from the appellant as a loan amount for the construction of the house and he avoided the payment hence he lodged a false report and falsely trapped him. Learned Special Judge did not consider the oral evidence of DW-1 Ramdas in its true prospect, which he has specifically stated that some transaction has taken place between the complainant and appellant, Exhibit-D/1 written by them as a promissory note and he signed the aforesaid note as a witness and the complainant signed in the instant promissory note. He has also stated that the appellant on the request of the complainant gave the amount of Rs. 2100/- and promised him that he will return the amount of Rs. 2300/- with interest after his father returned. In support of his arguments learned counsel for the appellant placed reliance on the judgment of this High Court in the matter of Wasiuddin Siddiqui Vs. State of Chhattisgarh, reported in 2021 SCC OnLine Chh 2653: (2022) 1 CGLJ 1 and in Criminal Appeal No. 566/2001 vide judgment dated 10.01.2022 passed in the matter of Smt. Shakuntala Mishra Vs. State of Chhattisgarh.

6. Opposing the above arguments, learned counsel appearing for the respondent/State supported the impugned judgment. He 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 on record including the statements of witnesses with due care.

8. It is an admitted fact before the learned trial Court that at the time of the incident, appellant/accused was posted as 'teacher/instructor of Diesel Mechanic Trade' at I.T.I., Mana and complainant Praveen Kumar was a student of said trade for the academic session 1999

9. Jarnail Singh (PW-2) has admitted in his cross-examination as under :-

6- gkftj vnkyr vfHk;qDr dks mRrj iqfLrdk tkapus dk ;k fjtYV ?kksf"kr djus dk fdlh izdkj dk dksbZ vf/kdkj ugha gSA esjs rgr vkjksih us yxHkx 2 lky dke fd;k gS ysfdu blds fo:) dHkh eSaus fdlh izdkj dh dksbZ f'kdk;r ugha lquh FkhA

Nizam Quraishi (PW-5) has stated in his statement as under :-

11- vkjksih uoZl gksdj ;g dg jgk Fkk fd vkt ds tekus esa m/kkjh nsuk Hkh xqukg gks x;k gSA jkBkSj lkgc us esjs le{k vkjksih ls ;g vo'; dgk fd >wB cksyrs gks fj'or dk iSlk ysrs gksA

10. In defence of the appellant it is stated that he gave some loan to the complainant in support of this appellant and complainant signed a promissory note Ex.-D/1.

11. Ramdas (DW-1) has stated that :-

1- i{kdkjksa ds chp tks ysu&nsu gqvk Fkk mldh fy[kki<+h fd;k FkkA iz-Mh-&1 og fy[kki<+h gS ftlij Hkkx v ls v esjs gLrk{kj gSa rFkk c ls c izoh.k dqekj panzkdj ds gLrk{kj gSaA

3- izkFkhZ izoh.k dqekj panzkdj i<+k&fy[kk gS tks vkbZ Vh vkbZ i<+ jgk FkkA eSa d{kk 7oha rd i<+k fy[kk gwaA izoh.k dqekj ds dgus ij eSaus jlhn fy[kk FkkA esjs le{k [email protected]& :i;s C;kt feykdj [email protected]& :i;s ykSVkus dk izoh.k us dgkA izoh.k us dgk fd tSls ikik vk tk;saxs jde ykSVk nwaxkA

12. In this case, transcription of tape recorder is Ex.-P/12, tape recorder was given to the complainant for verification of his complaint as record of the documentary evidence. As regards the documentary evidence i.e. transcription of tape-recorder (Ex.-P/12), 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 obstinate 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., electronic 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.

13. 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.

14. 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 so far 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.

15. But, in this case, learned trial Court found in para 22, which reads as under:-

22. .... U;k;ky; }kjk fyI;karj.k lkeus j[k Vsi dks lquk x;k] fyI;karj.k vuqlkj dSlsV esa laokn gksuk (dqN 'kCnksa ds varj ds flok;) ik;k x;kA

The learned trial Court has not written those words which are different in Ex.-P/12, in Ex.-P/12 vague (vLi"V) has been written in 5-6 places.

16 The complainant has stated that he went along with Ravi Khunte, but the prosecution has not examined Ravi Khunte, therefore, except complainant, no witness was examined by the prosecution to prove the demand of bribe and as per guidelines of Hon'ble Apex Court the electronic record (tape-recorder) has not been duly proved by the prosecution, in this case, opinion of the examiner is also not on record to explain that any demand of bribe was made by the appellant. In this case, independent demand witness Ravi Khunte was not examined by the prosecution only the complainant has stated about the demand of bribe, but the defence witness DW-1 has stated that this was a loan

amount, and the demand for bribe is not clear, at the time of the trap, no recording was done by the complainant and the trap witness has also stated that the accused was saying that it was a loan amount which had been given by the accused to the complainant.

17. Mukesh Khare (PW-8) has admitted in his cross-examination as under:-

11. fy[kki<+h iwjh gksus ds ckn vfHk;qDr us ;g dgk Fkk fd m/kkjh dk iSlk fy;k Fkk ogh ns jgk Fkk bl ij eSus vfHk;qDr ls dgk fd ftl le; fy[kki<+h dh tk jgh Fkh ml le; D;ksa ugha crk;kA vfHk;qDr us ,slk ugha crk;k fd mlds ikl esa gkFk dk fy[kk jlhn gSA m/kkjh ds ckcr~ ge yksxksa us bldh tkap djuk vko';d ugha le>k D;ksafd iwjh dk;Zokgh gksus ds ckn vfHk;qDr us crk;k FkkA

18. 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. Independent witness was not produced by the prosecution and Ex.-D/1 which was signed by the complainant shows that the amount was a loan amount which was returned by the complainant. In the case of State of Punjab Vs. Madan Mohan Lal Verma 1, 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 1 (2013) 14 Supreme Court Cases 153.

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 Punjab2, T. Subramanian v. State of T.N. 3, State of Kerala v. C.P. Rao4 and Mukut Bihari v. State of Rajasthan5.)

19. So far as recovery is concerned the appellant took a plea that the complainant was returning his loan amount.

20. So looking to the whole story of the prosecution, statement of the complainant, defence witness and search witness, the entire story narrated by the prosecution becomes doubtful. In the instant case, 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 the benefit of doubt.

21. Consequently, the instant appeal is allowed. The judgment of the trial Court under challenge is set aside. The appellant is acquitted of the charges under Sections 13(1)(D) r/w Section 13(2) and 7 of the Prevention of Corruption Act, 1988. The appellant has died during the pendency of the appeal so no order is required for the discharge of bail bonds and sureties.

Sd/-

(Rajani Dubey) JUDGE

H.L. Sahu

2 (1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498 3 (2006) 1 SCC 401 : (2006 1 SCC (Cri) 401 4 (2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714 5 (2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136