HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal 972 of 1990
Dayashanker Singh
...Petitioners
Versus
The State of M P
...Respondents
! Mrs Anju Ahuja
^ Mr R R Sinha
CORAM: Honble Mr T P Sharma J
Dated: 31/08/2010
: JUDGEMENT
Criminal appeal under Section 374 2 of the Cr P C
1. Challenge in this appeal is to the judgment of
conviction & order of sentence dated 12-10-1990 passed by the
4th Special Judge, Bilaspur in Special Criminal Case No.6/88,
whereby & whereunder learned Special Judge after holding the
appellant guilty for demanding and accepting illegal
gratification other than legal remuneration by misusing the
office, convicted the appellant under Sections 161 of the
I.P.C. & 5 (1) (d) read with Section 5 (2) of the Prevention
of Corruption Act, 1947 and sentenced him to undergo R.I. for
one year and to undergo R.I. for two years & pay fine of
Rs.2,000/-, in default of payment of fine to further undergo
R.I. for six months, respectively.
2. Conviction is impugned on the ground that without any
iota of demanding and accepting bribe, the Court below has
convicted & sentenced the appellant and thereby committed
illegality.
3. Case of the prosecution, in brief, is that the appellant
was posted as Ranger in the Forest Department at Achanakmar
Reserve Forest. Complainant Sohanlal (PW-1) was dealing with
mahul leaves, a forest produce. In the month of October,
1986 the complainant sent truck for transportation of mahul
leaves, but the appellant returned the truck and directed the
clerk of the complainant to inform the complainant to come
with money for issuance of transit pass. The complainant was
not ready to give bribe. He filed an application before the
Deputy Superintendent of Police (Vigilance) on 17-11-86.
After preliminary enquiry, trap party was constituted and
witnesses R.K. Pandey & Sainat Ram were called. The
complainant produced five currency notes of Rs.100/- each,
numbers of which were recorded in the preliminary panchnama,
same were treated with phenolphthalein powder and kept in the
shirt of the complainant. The complainant was directed not
to touch the currency notes before giving the same to the
appellant and not to shake hand with any other person. He
was also directed to give signal after giving the bribe.
Reaction of sodium carbonate & phenolphthalein powder was
demonstrated. Primary panchnama was prepared vide Ex.P-2.
Trap party proceeded for the spot. The appellant was present
in his house, trap party took its position, the complainant
went to the house of the appellant, the appellant demanded
Rs.500/- as bribe and the complainant gave Rs.500/- kept by
the trap party in his pocket to the appellant which the
appellant received and kept the same in the pocket of his
full pant. After giving signal by the complainant, trap
party entered in the house of the appellant and after giving
introduction, post-trap proceedings were initiated. During
the proceedings, the appellant threw the currency notes on
the floor. Hands of the appellant and the complainant were
washed with sodium carbonate solution which turned into pink
colour. Currency notes were taken up by witness Pandey and
numbers were tallied. They were also washed with the
solution of sodium carbonate which also turned into pink
colour. Currency notes and full pant were seized vide Ex.P-
10. Final panchnama was prepared vide Ex.P-9. Other
currency notes and other articles were seized from the
appellant vide Ex.P-11. Dehati nalsi was recorded vide Ex.P-
12. F.I.R. was lodged vide Ex.P-13. Seized solution was
sent for chemical examination vide Ex.P-14. Presence of
sodium carbonate & phenolphthalein powder was confirmed in
hand wash solution and pocket wash solution of the appellant
vide Ex.P-15A.
4. Statements of the witnesses were recorded under Section
161 of the Cr.P.C. and other documents were seized. Material
collected during the course of investigation was placed
before the sanctioning authority and the sanctioning
authority has accorded sanction vide Ex.P-4. After
completion of investigation, charge sheet was filed before
the Special Judge, Bilaspur.
5. In order to prove the guilt of the accused, the
prosecution has examined as many as nine witnesses. The
accused was examined under Section 313 of the Cr.P.C. in
which he denied the circumstances appearing against him and
pleaded innocence & false implication.
6. The accused has taken specific defence that the
complainant has constructed temporary hut in the forest area
after cutting the forest produce, forest offence was
registered against the clerk of the complainant & the
complainant, the clerk of the complainant compromised the
offence and the complainant was required to deposit Rs.500/-
as fine which he has deposited to the appellant who was
competent to receive money and issue receipt, and while he
was preparing the receipt, trap party came in the house of
the appellant and caught hold of him. The appellant has also
taken defence that he was not competent to issue transit
pass, previously other authorities have issued transit pass
to the complainant, but on that day the complainant has
falsely implicated him in the crime in question. The
appellant has examined defence witnesses M.R. Thakre (DW-1),
S.N. Ram (DW-2), Vinod Bhushan Shukla (DW-3), Jauharilal
Shukla (DW-4) & Prakash Yadav (DW-5) in support of his claim.
7. After providing opportunity of hearing to the parties,
learned Special Judge convicted & sentenced the appellant in
the aforesaid manner.
8. I have heard learned counsel for the parties and perused
the impugned judgment as also the record of the trial Court.
9. Learned counsel for the appellant vehemently argued that
in the present case, the complainant has never applied for
transit pass to the appellant and the appellant was not
competent to issue transit pass. The complainant had
constructed one temporary hut in the forest area after
cutting and removing forest produce through his clerk on
which forest offence was registered against him and his
clerk. Clerk of the complainant entered into compromise and
the competent authority has imposed fine of Rs.500/-. The
complainant was required to deposit fine. At the time of
alleged incident, the complainant contacted the appellant to
deposit fine amount and he has tendered Rs.500/-, the
appellant was preparing receipt of the same and at that time,
he was caught red handed. The appellant has neither demanded
nor accepted bribe, he has demanded and accepted the amount
of Rs.500/- as fine for which he was competent. Learned
counsel placed reliance in the matter of Banarsi Dass v.
State of Haryana1 in which the Apex Court has held that mere
proof of recovery of bribe money from accused is not
sufficient to prove the offence, the prosecution is required
to prove the factum of demand and acceptance of bribe.
Learned counsel further placed reliance in the matter of Ram
Prakash Arora v. The State of Punjab2 in which the Apex Court
has held that evidence of interested and partisan witnesses
who are concerned in the success of the trap 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 persons. Learned
counsel also placed reliance in the matter of Abdul Rahman
Sheikh v. State of M.P.3 in which the High Court of Madhya
Pradesh has held that in case of failure of first trap,
factum of second trap is not understandable. Learned counsel
relied upon the matter of Dwarkaprasad Ramnath Gupta v. State
of Madhya Pradesh4 in which the High Court of Madhya Pradesh
has held that receipt of money by accused raises presumption
against him under Section 4 (1) of the Prevention of
Corruption Act, 1947, accused may discharge onus by
preponderance of probability. Learned counsel further relied
upon the matter of Smt. Meena Balwant Hemke v. State of
Maharashtra5 in which the Apex Court has held that mere
recovery of money from pad on the table of the accused is not
sufficient to prove the factum of demand and acceptance of
bribe. Learned counsel also relied upon the judgment dated 4-
8-2010 passed by this Court in Criminal Appeal No.749/1993
(Baharata Ram and another v. The State of Madhya Pradesh) in
which it has been held that mere recovery of bribe amount is
not sufficient to prove the factum of demand and acceptance
of bribe. Learned counsel placed reliance in the matter of
Ram Kumar Verma v. State of M.P.6 in which this Court has
held that mere recovery of tainted currency notes is not
sufficient to prove the factum of demand and acceptance of
bribe.
10. On the other hand, learned State counsel vehemently
opposed the appeal and submitted that in the present case,
the appellant has accepted the fact that he has demanded and
accepted Rs.500/- from the complainant, but the appellant has
offered explanation that he has demanded money as recovery of
fine and has not demanded bribe, however, the appellant has
failed to discharge his burden and the trial Court has
rightly convicted & sentenced the appellant.
11. In order to appreciate the arguments advanced on behalf
of the parties, I have examined the evidence available on
record.
12. In the present case, as per the evidence of Sohanlal
Agrawal (PW-1) – complainant, Ramdinkar Pandey (PW-8) –
Assistant Director (Agriculture) and H.N. Shukla (PW-9) –
Inspector, the appellant was found in possession of tainted
currency notes which were kept in the pocket of the
complainant for giving the same as bribe on demand by the
accused. As per the evidence of Sohanlal Agrawal (PW-1), he
has given money to the appellant which the appellant had
taken. As held by the M.P. High Court in the matter of
Dwarkaprasad (supra) and in accordance with Section 4 of the
Prevention of Corruption Act, 1947, it raises presumption
that the accused has demanded & accepted bribe, but
presumption is rebuttable and it can be rebutted by
preponderance of probability, no strict proof is required.
13. In order to discharge his burden, the appellant had
examined M.R. Thakre (DW-1) – Superintendent working in the
Forest Department who has deposed in his evidence that he was
competent for compromise relating to forest offence, he has
produced and proved document Ex.D-4, document of compromise
with complainant Sohanlal Agrawal through Prakash Yadav in
which Rs.500/- fine was imposed. This witness has also
proved the documents relating to forest offence viz., Exs.D-5
to D-9, statement of Prakash Yadav Ex.D-10, statement of Ram
Singh & Pratap Singh Ex.D-11 and Ex.D-12. This witness has
further deposed that he has sent the recovery memo of Ex.D-5
to the Range Officer, Achanakmar.
14. S.N. Ram (DW-2) – Ranger has deposed that money receipt
Ex.D-13 contains writing of the appellant. Ex.D-13 is a half
written receipt in which the words `Bilaspur Achanakmar
Prakash vaste Sohan Lal Agrawal’ have been written. This
witness has further deposed that previously transit passes
Exs.D-14 to D-18 have been issued to the complainant for
transportation of mahul leaves by the Range Assistant. Vinod
Bhushan Shukla (DW-3) – Range Officer has also proved Exs.D-
13 to D-17. Jauharilal Shukla (DW-4) – Forester has deposed
in his evidence that forest offence was registered against
Prakash Yadav who entered into compromise and Sohanlal
Agrawal has written letter Ex.D-24 to him relating to
construction of temporary hut, in his letter pad. Prakash
Yadav (DW-5) – clerk of the complainant has also corroborated
the document Ex.D-24 and has admitted the registration of
forest offence and compromise in the forest offence. These
documents are related to 3-10-86 & 4-10-86 prior to the date
of commission of offence i.e. 17-11-86.
15. Evidence of these witnesses are based on the documents
which cannot be doubted, at this stage and which reveal that
clerk of the complainant has collected forest produce without
permission of the forest authorities and has started
construction of temporary hut for collection and temporary
storage of mahul leaves. Forest offence was registered
against the complainant through his clerk Prakash Yadav in
which he entered into compromise. The complainant has
written letter Ex.D-24 to the Forester relating to the same
activity. As per Ex.D-4, fine of Rs.500/- was imposed upon
the complainant and the complainant was required to deposit
Rs.500/- to the forest authorities. Ex.D-13 is half filled
copy of money receipt containing the words `Bilaspur
Achanakmar Prakash vaste Sohan Lal Agrawal’ which have been
written by the appellant. As per the defence of the
appellant, the complainant came to him for depositing fine
imposed upon him, the complainant produced Rs.500/- which he
received and when he was preparing money receipt, trap party
came to his house and seized the money. The appellant has
suggested the complainant and the prosecution witnesses to
this effect which the complainant has denied.
16. As per the evidence of Vinod Bhushan Shukla (DW-3) –
Range Officer & S.N. Ram (DW-2) – Ranger, previously Exs.D-14
to D-18, transit passes, were issued to the complainant
relating to transportation of mahul leaves from Achanakmar
Reserve Forest at the instance of the complainant. This
shows that the complainant has never contacted the appellant
for issuance of transit pass and he used to contact another
Assistant Ranger for issuance of transit pass. The
complainant was previously not in contact with the appellant.
17. In the present case, Deputy Superintendent of Police
Markam has conducted trap, but the prosecution has not
examined Markam who has conducted trap. Except the
complainant, nobody has supported the case of the prosecution
that the appellant has demanded and accepted illegal
gratification. Inter alia, by examining defence witnesses,
defence has tried to establish that the appellant was
authorized to collect fine amount, the complainant has
tendered Rs.500/- as fine which the appellant has received
and at the time of issuance of receipt Ex.D-13, trap party
entered in the house of the appellant and seized the
aforesaid amount.
18. Defence is not required to prove its case beyond all
reasonable doubts, it is required to establish its case by
preponderance of probability. Evidence adduced on behalf of
the defence is sufficient for drawing suspicion on the case
of the prosecution. As held by the Apex Court in the matter
of Ram Prakash (supra), evidence of interested and partisan
witnesses who are concerned in the success of the trap must
be tested in the same way as that of any other interested
witness and in a proper case the Court may look for
independent corroboration before convicting the accused
persons.
19. In the present case, except the complainant nobody has
supported the case of the prosecution and the defence has
adduced evidence to show that the appellant has demanded and
accepted money as fine and not as bribe. As held in the
matters of Ram Kumar (supra) and Banarsi Dass (supra), mere
recovery of money is not sufficient to establish the factum
of demand of bribe.
20. In the present case, considering the specific defence on
the basis of ocular and documentary evidence, it is difficult
to hold that the appellant has demanded and accepted illegal
gratification other than legal remuneration by abusing his
office. Evidence adduced on behalf of the defence is
sufficient for throwing doubt on the case of the prosecution.
21. In these circumstances, without any further
corroboration in absence of evidence of Investigating
Officer, it is difficult to hold that the appellant has
demanded and accepted illegal gratification. While
convicting the appellant, the trial Court has not considered
the most material aspect of the case and the fact that the
defence has succeeded in throwing suspicion upon the case of
the prosecution by preponderance of probability, and thereby
committed illegality. Consequently, conviction & sentences
imposed upon the appellant under Sections 161 of the I.P.C. &
5 (1) (d) read with Section 5 (2) of the Prevention of
Corruption Act, 1947 are not sustainable under the law.
22. The appeal is allowed. Conviction & sentences imposed
upon the appellant under Sections 161 of the I.P.C. & 5 (1)
(d) read with Section 5 (2) of the Prevention of Corruption
Act, 1947 are hereby set aside and the appellant is acquitted
of the said charges. He be set at liberty forthwith, if not
required in any other case.
J U D G E
