State Of Chhattisgarh vs Gautam Acharya
2022 Latest Caselaw 3294 Chatt

                                  1

                                                                       NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR

             Judgment reserved on :          14/02/2022
             Judgment delivered on:          06/05/2022
                    ACQA No. 180 of 2015
   State Of Chhattisgarh Through ­ District Magistrate
    Jagdalpur Chhattisgarh.
                                                         ­­­­ Appellant
                             Versus
   Gautam Acharya S/o Late P.C. Acharya, Aged About 57
    Years, Post ­ Lecturer, R/o Housing Board Colony,
    Bodhghat, Jagdalpur, Distt. Bastar Chhattisgar.
                                                     ­­­­ Respondent



For Appellant/State          :    Mr. Raghvendra Verma, G.A.
For Respondent               :    Mr. Rakesh Thakur, Adv


            Hon'ble Smt. Justice Rajani Dubey, J.

C A V Order

1. This acquittal appeal has been preferred by the

Petitioner/State calling in question the legality,

validity and correctness of the order dated

19.02.2015 passed by learned Special Judge

(Prevention of Corruption Act), Bastar at Jagdalpur

(C.G.), in Corruption Special Case No. 04/2012, by

which respondent herein has been acquitted from the

charge punishable under Sections 7, 13(1)D & 13(2)

of the Prevention of Corruption Act, 1988.

2. The case of the prosecution, in short, is that on

17.06.2010, complainant Amit Tiwari made a written

complaint to the office of Anti Corruption Bureau,

Jadgalpur, alleging therein that respondent Gautam

Acharya, Block Education Officer, Bakawand,

demanded bribe of Rs. 10,000/­ for his joining.

Based on the said complaint, the concerned police

prepared Panchnama vide Ex. P/12. On 17.06.2010,

complainant went to the house of respondent and

recorded the discussion regarding the demand of

bribe and handed over the tape recorder to the

police. Thereafter, a trap team was constituted and

complainant was sent to the house of respondent

with the Phenolphthalein Powder mixed currency of

Rs. 10,000/­. The respondent was caught with the

same notes in his possession. Thereafter, statement

of witnesses were recorded and after completion of

investigation, charge­sheet has been filed and

learned trail Court framed the charges against the

respondent herein as aforementioned.

3. In order to bring home the offence, prosecution

examined 11 witnesses and brought into record 32

documents. Respondent has also examined 4 witnesses

in support of his argument and filed some documents

vide Ex. D/1 to D/10.

4. After appreciating the oral and documentary

evidence on record, learned trial Court by impugned

judgment acquitted the respondent/accused from the

aforementioned charges. Hence, this appeal filed by

the State.

5. Mr. Raghvendra Verma, learned Government Advocate

would submit that learned Special Judge has

absolutely unjustified in acquitting the respondent

herein from the aforesaid charge by recording a

finding which is perverse to the record and

deserves to be set­aside by admitting the acquittal

appeal. It is further submitted complainant Amit

Tiwari (PW­2), Nitin Dadsena (PW­1), B.S.Baghel

(PW­3) and other witnesses have categorically

stated about the incident and proved the

prosecution case beyond reasonable doubt but the

learned Special Judge, has not considered the same.

He further submitted that as per Section 20 of the

Act, burden lies on the accused to prove his

innocence but the learned Special Judge did not

appreciate this legal position.

6. Mr. Rakesh Thakur, counsel for the respondent

supported the impugned order and submitted that

prosecution has failed to prove the demand and

acceptance so learned trail Court has rightly

acquitted the respondent, and as such the acquittal

appeal is liable to be dismissed. In support of his

argument he placed reliance in the matter of

Rajendra Singh Pawar & Ors. Vs. State of M.P. &

Ors. in Writ Petition No. 18878/2020 decided on

24.12.2020 (MANU/MP/1413/2020) and this Court's

order in Wasiuddin Siddiqui Vs. State of

Chhattisgarh dated 14.09.2021 passed in CRA No.

853/2007 (MANU/CG/1035/2021).

7. Heard learned counsel for the parties, considered

their rival submissions and perused the material

available on record.

8. Learned trial Court found in its judgment from para

26 to 34 that Script Panchnama (Ex. P/13) is not

reliable. It is also found by the learned trial

Court that in whole conversation demand of Rs.

10,000/­ did not come into record. Furthermore,

B.S. Baghel (PW­3), Ghanshyam Sahu (PW­4) and

Gonoram (PW­5 & M. L. Negi (PW­11) have also

admitted that demand of Rs. 10,000/­ is not

mentioned in the script Panchnama (Ex. P/13),

however, it came on record about the reducing the

money and leaving the job. Further, learned trial

Court found in para 34 of its judgment that on the

basis of script panchnama, the demand and

acceptance of bribe cannot be proved.

9. Hon'ble Supreme Court in the matter of Ram Singh &

Others Vs. Col. Ram Singh reported in

MANU/SC/0176/1985: 1985(Supp) SCC 611 held that a

tape­recorded 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

recognizing 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 tape­recorder 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 tape­recorder statement must be

totally excluded.

(4) The tape­recorder statement must be relevant.

(5) The recorded cassette must be sealed and must

be kept in safe or official custody.

(5) the voice of the particular speaker must be

clearly audible and must not be lost or destroyed

by other sounds or disturbances."

10.Thus, the learned trial Court rightly found that

demand of money is not proved in this case. All

prosecution witnesses stated that the currency

notes were recovered from the cushion of the sofa.

It is also not disputed that when the fingers of

the accused/respondent was washed, the color of the

phenolphthalein mixed content was remained

unchanged.

11.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.

12.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 but

in this case all the prosecution witnesses have

stated that the currency notes were recovered from

under the cushion of the sofa.

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

Vs. State of Andhra Pradesh reported in

MANU/SC/0245/2014: (2014) 13 SCC 55 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 Sectio 7 unless it is proved beyond all reasonable doubnt that the accused voluntarily accepted the money knowing it to be a bribe. The

above position has been sucintly 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. MANU/SC/0981/2010 :(2010) 15 scc 1 and C.M. girish Babu V. CBI MANU/SC/0274/2009: (2009) 3 SCC 779.

14.Thus, learned trial Court has rightly found that

prosecution has failed to prove the demand and

acceptance of bribe and this finding is based on

proper appreciation of oral and documentary

evidence. This Court is of the opinion that learned

trial Court has absolutely justified in acquitting

the respondent from the charge under Sections 7,

13(1)D & 13(2) of the Prevention of Corruption Act,

1988, and does not find any force in the acquittal

appeal and as such, it deserves to be dismissed and

is hereby dismissed.

Sd/-

(Rajani Dubey) Judge V/-