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2010 DIGILAW 162 (CHH)

Arun Kumar Pandey v. State of M. P.

2010-06-16

PRITINKER DIWAKER

body2010
JUDGMENT Pritinker Diwaker, J. 1. This appeal is directed against the judgment and order dated 16.1.1997 passed by Special Judge, Raipur, in Special Case No. 02/1992 convicting the accused/Appellant for the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act and sentencing him to undergo rigorous imprisonment for one year with fine of Rs. 1000, in default of payment of fine to further undergo simple imprisonment for three months, on each count. 2. Case of the prosecution in brief is that at the relevant time the accused/Appellant was working as Labour Inspector posted at Bilaspur bus stand. His work was to check the illegal trafficking of labourers. It is alleged that on 15.1.1988, the accused/Appellant had demanded Rs. 500 from complainant Suresh Prasad Tiwari (PW-4) who at the relevant time was looking after the work of Pratap Travels. According to the case of the prosecution, as the complainant was not interested to give the amount of Rs. 500 to the accused/Appellant, he made a written complaint Ex. P-2 in the office of Dy. Superintendent of Police (Lokayukta) Bilaspur. his preliminary statement was recorded and after calling the food inspector the trap party was constituted. Demonstration of test to be conducted was made to the trap party and subsequently pre trap panchnama (Ex. P-4) was prepared, the trap parly so constituted proceeded to the spot and thereafter the complainant gave Rs. 500 to the accused/Appellant and then signaled to the trap party regarding the same. Thereafter the trap party went there and trapped the accused/Appellant. Subsequently panchnama Ex. P-5 was prepared and vide Ex. P-6 currency notes were seized. Further case of the prosecution is that after seeing the trap party, accused/Appellant threw the said amount of Rs. 500 on the floor which subsequently was collected by the trap party. Hands of the accused were washed in the sodium carbonate solution which according to the FSL report Ex. P-l 7 proved positive as its colour had turned light pink. Sanction to prosecute the accused/Appellant was obtained on 4.10.1991 vide Ex. 500 on the floor which subsequently was collected by the trap party. Hands of the accused were washed in the sodium carbonate solution which according to the FSL report Ex. P-l 7 proved positive as its colour had turned light pink. Sanction to prosecute the accused/Appellant was obtained on 4.10.1991 vide Ex. P-18 and then after investigation the challan was filed on 20.2.1992 for the offences under Sections 161 IPC and 5 (1) (d) and 5 (2) of the Prevention of Corruption Act but the trial Court had framed the charges under Sections 7 and 13(1 )(d) read with 13(2) of the Prevention of Corruption Act. 3. So as to hold the accused/Appellant guilty, prosecution has examined 13 witnesses in support of its case. Statement of the accused/Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/Appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the Appellant submits that as the complainant himself has not supported the case of the prosecution and has turned hostile, the accused/Appellant cannot be prosecuted for any offence particularly the one punishable under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act as the prosecution has failed to establish the demand of bribe by the accused/Appellant. He submits that the prosecution has committed the procedural illegalities which, if seen in the light of the relevant provisions of law. would vitiate the entire proceedings undertaken by it. According to him, the Appellant has been tried and convicted under the provisions of new Act of 1988, though he was trapped on 15.1.1988 i.e. much prior to coming into force thereof. He submits that the Appellant could have been prosecuted for the offence under Section 161 IPC and 5(1) (d) and 5(2) of the Prevention of Corruption Act of 1947 and not under the new Act of 1988. He submits that the Appellant could have been prosecuted for the offence under Section 161 IPC and 5(1) (d) and 5(2) of the Prevention of Corruption Act of 1947 and not under the new Act of 1988. In support of this argument counsel for the Appellant placed reliance on the decision of the High Court of Karnataka and also the High Court of Delhi in the matter of R.S. Kalakapur v. State of Karnataka 1994 Cri L.J. 2696 and in the matter of Sukhwant Singh v. Union of India 1996 Cri.L.J. 4079. Counsel for the Appellant further submits that Article 20 (1) of the Constitution of India provides for protection against ex post facto law which says that no person is to be convicted of an offence except for violating a law in force at the time of commission of the offence. According to him, it is an admitted position that the incident in the case in hand had taken place on 15.1.1988 whereas the Act of 1988 came into force on 9th September, 1988 and thus in the light of Article 20 (1) of the Constitution of India conviction of Appellant is per se illegal. He submits that Article 20 (1) of the Constitution of India provides for protection against ex post facto law which says that no such person is to be convicted for an offence except for violating a law in force at the time of commission of the act charged as an offence. Counsel for the Appellant has made an attempt to distinguish his case with that of M.W. Mohinuddin v. State of Maharashtra (1995)3 SCC 567 stating that while deciding the matter the Apex Court has held that for the first time such issue cannot be raised in the Supreme Court and secondly that no prejudice was caused to the accused in that case. Counsel for the Appellant submits that in the case in hand as this mistake of the prosecution has been pointed out at the High Court itself, the decision rendered in the case of M.W. Mohinuddin v. State of Maharashtra (1995)3 SCC 567 (supra) would not be of any help to the State. Counsel for the Appellant submits that in the case in hand as this mistake of the prosecution has been pointed out at the High Court itself, the decision rendered in the case of M.W. Mohinuddin v. State of Maharashtra (1995)3 SCC 567 (supra) would not be of any help to the State. He submits that so far as the prejudice, if any, is concerned, a great prejudice is likely to be caused to the accused/Appellant because as per Section 161 IPC the maximum punishment is imprisonment for three years whereas no minimum punishment is provided. He however submits that as per the provision of Section 7 of the New Act the maximum higher punishment has been provided as imprisonment for live years whereas the minimum one is imprisonment for six months and therefore, even if this Court takes a lenient view in sentencing the accused/Appellant, the total sentence of not less than six months cannot be imposed on him. He submits that in the case of M.W. Mohinuddin v. State of Maharashtra (1995)3 SCC 567 (supra) though the minimum punishment was imprisonment for six months as per section 7 of the new Act which was awarded by the trial Court but ultimately the Apex Court reduced the same to the period already undergone by him but the same treatment cannot be given to the accused/Appellant in this case and his sentence cannot be reduced to below six months in the light of the settled position of law. He further submits that similar is the position in respect of Section 5(1) (d), 5 (1) (e) and 5 (2) of the Prevention of Corruption Act 1947 and that of Section 13 (1) (d) and 13 (2) of the Prevention of Corruption Act 1988. He submits that case of M. IV. Mohinuddin v. State of Maharashtra (1995)3 SCC 567 (supra) is further distinguishable on the point that the three judge bench of the Supreme Court in the matter of Olga Tell is v. Bombay Municipal Corporation AIR (1986) SC 180 has held that there cannot be any estoppel in the constitution. He submits that case of M. IV. Mohinuddin v. State of Maharashtra (1995)3 SCC 567 (supra) is further distinguishable on the point that the three judge bench of the Supreme Court in the matter of Olga Tell is v. Bombay Municipal Corporation AIR (1986) SC 180 has held that there cannot be any estoppel in the constitution. Counsel for the Appellant further placed reliance on the decision of the Supreme Court in the matter of Jagan M. Seshadri v. State of Tamil Nadu AIR (2002) SC 2399' in which it is held that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act. He submits that as per the provisions of Section 17 of the Prevention of Corruption Act. investigation ought to have been done by the Dy. Superintendent of Police or the police officer of equivalent rank. In the present case the investigation has been done by M.K. Hiradhar (PW-10) who was the inspector at the relevant time. He submits that as the investigation has been done by the Inspector a great prejudice has been caused to the accused/Appellant. He submits that even the Court below has erred in law while recording the statement of the accused/Appellant under Section 313 of the Code of Criminal Procedure in relation to the demand of any illegal gratification. He placed reliance on the decision of the Supreme Court in the matter of Ranbir Yadav v. State of Bihar 2009 (6) SCC 595. He submits that as the complainant namely Suresh Prasad Tiwari (PW-4) has turned hostile, factum of demand of illegal gratification cannot be proved and therefore the Appellant cannot be convicted under Section 13(1 )(d) and 13 (2) of the Act. He submits that the complainant has categorically stated that when he went to the police station as his bus was seized by the Police, the police officers had asked him to write a complaint which was written by him as per the desire of the police officer vide Ex. P-2. He submits that the complainant has categorically stated that when he went to the police station as his bus was seized by the Police, the police officers had asked him to write a complaint which was written by him as per the desire of the police officer vide Ex. P-2. He submits that this statement of the complainant completely falsifies the entire case of the prosecution that he ever made any complaint against the Appellant for demanding bribe. According to him, under the compelling circumstances an application was taken from the complainant, which unfortunately has been used by the prosecution. He submits that as per the case of the prosecution itself at the relevant time the complainant was working as the Manager of Pratap Travels and the Appellant was working as the Labour Inspector and his job was to check the illegal migration of the labourers and for this he had to put check over those contractors who without obtaining license from labour department under the Inter State Migrant Labour Act. 1979, were involved in such activities. He submits that the demand of Rs. 500 if seen as per the value of money in the year 1988 appears to be so exorbitant. He submits that the statement of Food Inspector namely P.C. Singh (PW-5) makes it clear that the Appellant had never accepted the bribe amount of Rs. 500 and he had thrown the same on the floor. He submits that in an exactly similar situation the Supreme Court had an occasion to deal with the similar point in the matter of Darshan Lal v. Delhi Administration AIR (1974) SC 218 in which it has been held that the courts below should have required independent and trustworthy corroboration of the evidence of Niranjan Lal and Satish Chandra, who had laid the trap. It has also been held that the trap witnesses are concerned in the success of the trap and their evidence must be tested in the same way as that of the interested witnesses and in the proper case, the Court may look for independent corroboration before convicting the accused persons. 7. It has also been held that the trap witnesses are concerned in the success of the trap and their evidence must be tested in the same way as that of the interested witnesses and in the proper case, the Court may look for independent corroboration before convicting the accused persons. 7. According to the counsel for the Appellant, independent witness P.C. Singh (PW-5) has categorically stated in his evidence that he was not sure whether the Appellant had thrown the money prior to arrival of the trap party and therefore no independent evidence is available on record to prove the case of the prosecution. In respect of this submission, counsel for the Appellant has placed reliance on the decision of the Supreme Court in the matter of Ram Prakash Arora v. State of Punjab AIR 1973 SC 498. He submits that as per the statement of prosecution witnesses, in particular that of the trap party, it is apparent that none of these witnesses could hear the conversation between the complainant and the accused and once the complainant turns hostile, there remains nothing against the accused/Appellant. He submits that there is no evidence available on record that any illegal gratification was demanded by the accused/Appellant. 8. Statement of Amrit Rao Sinde (PW-8) and M.K. Hiradhar (PW-10), R.J. Toppo (PW-11) and S.K. Verma (PW-12). in respect of acceptance of money by the accused/Appellant is contradictory to each other and on the basis of this weak evidence the accused/Appellant cannot be convicted. According to him, the statements of these witnesses are full of contradictions and omissions and on this count also they are not safe to be relied upon. He submits that case of the Appellant is squarely covered with a well reasoned judgment of the Supreme Court in the matter of C.M. Girish Babu v. CBI Cochin (2009) 3 SCC 779. According to the counsel for the Appellant, in the present case even the recovery of tainted money has not been proved beyond reasonable doubt as the statement of the witnesses to this effect is contradictory to each other. He submits that as per the site map (Ex. P-1) prepared by Patwari (PW-1) the incident had taken place in an open place whereas as per the statement of Amrit Rao Sinde (PW-8) the complainant had gone inside the room and gave money to the accused/Appellant. 9. He submits that as per the site map (Ex. P-1) prepared by Patwari (PW-1) the incident had taken place in an open place whereas as per the statement of Amrit Rao Sinde (PW-8) the complainant had gone inside the room and gave money to the accused/Appellant. 9. Replying to the arguments of the counsel for the Appellant, counsel for the Respondent-State submits that the offence against the Appellant was registered under Section 161 IPC and Sections 5 (1) (d) and 5 (2) of the Prevention of Corruption Act 1947 and the charge sheet was filed under the aforesaid section but while framing the charge as Section 161 IPC and Section 5 (1) (d) and 5 (2) of the Prevention of Corruption Act 1947 was repealed and the Act of 1988 came into force with effect from 9.9.1988 and further that Section 7 of Prevention of Corruption Act 1988 is pari materia to Section 161 IPC and Sections 5 (1) (d) and 5 (2) of the Prevention of Corruption Act 1947 are pari materia to Sections 13 (1) (d) and Sections 13 (2) of the Prevention of Corruption Act. He submits that the court below has rightly proceeded against the Appellant as per the provisions of the Act of 1988. He submits that Section 4 (1) of the Act of 1947 is pari materia to Section 20 of the Act of 1988 and therefore also once the amount has been seized from the possession of the accused Appellant, burden shifts on him and he was required to prove as to for what purpose the money was accepted by him. He submits that once the provision of two Acts are pari materia, no prejudice whatsoever would be caused to the accused Appellant if he has been charged under the provisions of new Act. He placed reliance on Section 30 of the Prevention of Corruption Act 1988 which reads as under: 30. Repeal and saving: (1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed. He placed reliance on Section 30 of the Prevention of Corruption Act 1988 which reads as under: 30. Repeal and saving: (1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed. (2) Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act. 10. So far as the point raised by the accused/Appellant that the complainant has turned hostile, and therefore he cannot be convicted, it has been argued by the State Counsel that though the complainant has turned hostile, in his cross-examination he has admitted his signature on the written complaint Ex.P-2. He submits that making of complaint Ex.P-2 has not been denied by the accused Appellant and thus he cannot take any benefit of the fact that the complainant has turned hostile. He submits that admittedly on the date of incident the Appellant was on duty at bus stand, Bilaspur to prevent illegal migration of labourers. Admittedly the complainant was working as manager in Pratap Travels operating the buses from Bilaspur to Allahabad. According to him the Appellant has failed to discharge the function as provided under Section 20 of the Act 1988.He submits that the conviction of accused Appellant can be based on the testimony of the police witnesses and no further corroboration of the same from any independent witnesses is required. He fairly admits that once the complainant turned hostile, the demand of bribe has not been proved by the prosecution and therefore the Appellant cannot be convicted under Section 13 (1) (d) and 13 (2) of Prevention of Corruption Act. According to him the Appellant can be convicted under section 7 of the Prevention of Corruption Act. As regards investigation being done by the Inspector and not by the officer below the rank of Dy. S.P., counsel for the State argued that as no prejudice is shown to have been caused to the Appellant, he cannot derive any benefit from the same. As regards investigation being done by the Inspector and not by the officer below the rank of Dy. S.P., counsel for the State argued that as no prejudice is shown to have been caused to the Appellant, he cannot derive any benefit from the same. According to him, this point ought to have been raised by the Appellant at the trial stage itself and for the first time he cannot take this plea at the appellate stage. He placed reliance on the decision of the Supreme Court in the matter of State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri 2006 (7) SCC 172. He submits that if the investigation has been done by the Police Inspector and not by the Dy. S.P., this alone will not vitiate the entire trial. In respect of Section 7 of the Prevention of Corruption Act it is argued that once the tainted money was recovered from the possession of the accused/Appellant and phenolphthalein test was also find positive in respect of hand wash and coat wash, it is established by the prosecution that the amount of bribe was accepted by the accused/Appellant. He submits that independent witness P.C.Singh (PW-5) has also supported to the case of the prosecution to this effect. In respect of contradiction and omission in the statements of the prosecution witnesses it is argued that the trap was laid on 15.1.1988 whereas the statement was recorded in the court in the months of January, July and August, 1996 and therefore the contradictions and omissions in the statement of the witnesses examined by the prosecution have to be ignored. 11. I have heard counsel for the parties and perused the material available on record. 12. The prosecution has examined Laxman Ram (P W-1) who at the relevant time was working as Patwari and had prepared the spot map. Ram Bahadur Singh (PW-2) - the Head Constable posted in the office of Lokayukta, Ram Nayak (PW-3) - the bus conductor, Suresh Prasad Tiwari (PW-4) - the complainant in the case, P.C. Singh (PW-5) - Food Inspector. R.G. Pandey (PW-6) who at the relevant time was working as Assistant Labour Commissioner, Baldau Prasad Pandey (PW-7) - the witness of Rojnamcha Sanha (Ex. P11 and P-l2). Amrit Rao Sinde (PW-8) - Constable, Shrawan Kumar (PW-9) - Head Constable. R.G. Pandey (PW-6) who at the relevant time was working as Assistant Labour Commissioner, Baldau Prasad Pandey (PW-7) - the witness of Rojnamcha Sanha (Ex. P11 and P-l2). Amrit Rao Sinde (PW-8) - Constable, Shrawan Kumar (PW-9) - Head Constable. M.K. Hiradhar (P W-10) who at the relevant time was working as Inspector and investigating officer in the present case. R.J. Toppo (PW-11)- Inspector in the Lokayukta Police, S.K. Verma (PW-12) - Dy. S.P. and panch witness and D.N. Billey (PW-13) - the clerk in the law department and witness of sanction. 13. Laxman Ram (P W-1) - the Patwari in his evidence has stated that he had prepared the spot map. Ram Bahadur Singh (PW-2) has stated in his evidence that on 15.1.1988 he was working as Head Constable in the office of Lokayukta and he had applied phenolphthalein powder on the currency notes and put the same in the pocket of the complainant. Ram Nayak (PW-3) - the bus conductor has not deposed anything against the accused/Appellant. Suresh Prasad Tiwari (PW-4) - the complainant and the star witness of the prosecution has turned hostile. He however has stated that at the relevant time the accused/Appellant was working as Labour Inspector and his bus was not permitted to be plied by the police officer and it was kept in the police station. He has further stated that when he had gone to the police station to get the bus released, the police officers had asked him to write a particular application as dictated by them. On this, he wrote the application Ex. P-2 which was also signed by him. He has stated that the accused/Appellant had never demanded the money from him nor had he made any effort to get the accused/Appellant caught while receiving the bribe. However, when he was cross examined by the special Public Prosecutor, he has categorically stated that the complaint Ex. P-2 was written by him at the behest of the police people. This witness has denied the fact that Rs. 500 per day were demanded by the accused/Appellant as bribe. In respect of the contents of the application, it has been clarified by this witness that he has not written the same of his own sweet will and if such things are mentioned in the application, they are incorrect. This witness has denied the fact that Rs. 500 per day were demanded by the accused/Appellant as bribe. In respect of the contents of the application, it has been clarified by this witness that he has not written the same of his own sweet will and if such things are mentioned in the application, they are incorrect. Even in respect of his statement, this witness has stated that he has never made any such statement and if the same has been mentioned in Ex. P-3, the same is not correct. He has denied the entire police statement in paragraphs 4,5 and 6 of his cross examination. He has denied the fact that he ever gave Rs. 500 to the police or that he had applied phenolphthalein powder thereon. In paragraph 7 of his cross examination, he has stated that he was taken to the bus stand by the police officer and at the instance of the police people, he gave money to the accused/Appellant but the same was thrown by him. He has stated that in the Panchnama of trap and that of the seizure his signatures were obtained by the police. P.C. Singh (PW-5)-the Food Inspector and independent witness in the case has stated that he was called by the Lokayukta police, complaint made by Suresh Prasad Tiwari (Ex. P-2) was read over to him, five currency notes of 100 denomination were given to the complainant, pre trap Panchnama Ex. P-4 was conducted and then along with the Lokayukta Police he had gone to the bus stand. He has stated that the amount was given by the complainant to the accused/Appellant and after receiving the signal, when Lokayukta people had arrested the Appellant, the money was thrown by him. Hands of the accused/Appellant and also the complainant were washed and the colour of the solution of sodium carbonate had turned pink. According to him. currency notes were thrown by the accused/Appellant. According to this witness, the place of incident was just opposite the booking counter and number of persons were present there. He has stated in between him and the place of incident number of persons were there and he had not made any enquiry from the complainant. According to him. currency notes were thrown by the accused/Appellant. According to this witness, the place of incident was just opposite the booking counter and number of persons were present there. He has stated in between him and the place of incident number of persons were there and he had not made any enquiry from the complainant. R.G. Pandey (PW-6) who at the relevant time was working as Assistant Labour Commissioner, has stated in his evidence that the accused/Appellant was working at bus stand to check the illegal migration of the labourers. Amrit Rao Sinde (PW-8) - Constable has stated in his evidence that at the relevant time he was working in the Lokayukta department and was a member of the trap party. According to him. the complainant had given the amount to the accused/Appellant and when the trap party had arrested the accused/Appellant, money was thrown by him which was picked up by the police and then the hands of the accused/Appellant were washed with the sodium carbonate solution. M.K. Hiradhar (PW-10) who at the relevant time was working as Inspector and investigating officer in the present case has supported the case of the prosecution and described the manner in which the complaint was recorded and the trap was laid. R.J. Toppo (PW-11) - the Inspector in the department of Lokayukta has stated in his evidence that he had prepared the preliminary Panchanama (Ex. P-4) and he was also one of the members of the trap party has also supported the case of the prosecution. Similar is the positon with S.K. Verma (PW-12) - retired Dy. S.P. and the panch witness of the complaint Ex. P-2. Though this witness was present in the office, in stead of making him investigating officer, he was merely made as a panch witness whereas one M.K. Hiradhar (PW-10) who was working as inspector in the office of Lokayukta was made the investigating officer. D.N. Billey (PW-13) is the witness of grant of sanction. 14. P-2. Though this witness was present in the office, in stead of making him investigating officer, he was merely made as a panch witness whereas one M.K. Hiradhar (PW-10) who was working as inspector in the office of Lokayukta was made the investigating officer. D.N. Billey (PW-13) is the witness of grant of sanction. 14. In the matter of Banarsi Dass v. State of Haryana AIR 2010 SCW 2282, dealing with the similar question regarding demand and acceptance of bribe, it has been held by the Apex Court that in the offence of bribery demand and acceptance of bribe has to be proved and mere proof of recovery of bribe money from the accused is not sufficient to convict him under the provisions of Prevention of Corruption Act. 15. In view of the aforesaid factual and legal discussion of the case it is clear that the complainant has turned hostile and has not supported the case of the prosecution. Not only he has turned hostile but he has categorically stated that as his vehicle was detained by the police, he had gone to the police station where the police authorities forced him to sign certain documents. P.C. Singh (PW-5) is the only independent witness in the case. Testimony of this witness is not corroborated by the statements of the other witnesses like the complainant. S.K. Verma (PW-12) Dy. S .P. is the witness of trap who has stated that he had not seen the Appellant accepting money from the complainant whereas PC. Singh (PW-5) has stated that he had seen the Appellant taking money. P.C. Singh (PW-5) has stated in his cross examination that there were number of persons in between him and the accused/Appellant. 16. In view of the wordings of the Supreme Court that the trap witnesses are concerned in the success of the trial and their evidence must be tested in the same way as that of other interested witnesses and in the appropriate case the Court may look for independent corroboration before convicting the accused. 17. If the present case is seen in its entirety it is clear that except P.C. Singh (PW-5) and the complainant, all other witnesses appear to be interested witnesses. 17. If the present case is seen in its entirety it is clear that except P.C. Singh (PW-5) and the complainant, all other witnesses appear to be interested witnesses. P.C. Singh (PW-5) has further stated that the money was immediately thrown by the accused/Appellant and therefore, it would not be safe for this Court to hold that the amount of bribe was accepted by the accused/Appellant. Though the other witnesses have tried to support the case of the prosecution, considering the overall aspects of the case where the complainant himself has not supported the case of the prosecution and even the independent witness P.C. Singh (PW-5) has also not fully supported the same, it will not be safe for this Court to convict the accused/Appellant merely on the basis of their statements. R.J. Toppo (P W-11) has stated that panchnama was prepared by him but in his cross examination he has stated that panchnama Ex. P-4 was prepared by him but it was signed by M.K. Hiradhar (PW-10). 18. Thus having seen the entire material available on record it becomes clear that the money was thrown by the accused/Appellant. Moreover, P.C. Singh (PW-5) has stated that there were number of persons between him and the accused/Appellant. In these circumstances, the conviction of the accused/Appellant as mentioned above cannot be sustained in the eye of law. 19. Most important aspect of the case in hand is that on the date of incident i.e. 15.1.1988, the Act of 1947 was applicable and the Act of 1988 had come into force with effect from 9.9.1988. The question of law before this Court is whether the accused/Appellant can be tried under the provisions of the Act of 1988 or not? In the present case the charges were framed on 7.4.1995 in relation to the offence alleged to have been committed on 15.1.1988. 20. Article 20 (1) of the Constitution provides for protection against ex post facto law which says that no person is to be convicted for an offence except for violating a law in force at the time of commission of the act charged as an offence. 20. Article 20 (1) of the Constitution provides for protection against ex post facto law which says that no person is to be convicted for an offence except for violating a law in force at the time of commission of the act charged as an offence. As already mentioned, it is not disputed that in the instant case the date of incident is 15.1.1988 and the date on which the Act of 1988 came into force is 9.9.1988, therefore, by virtue of Clause (1) of Article 20 of the Constitution of India, a person cannot be convicted under the provisions which were not in force at the time of commission of the offence. In the case of M.W. Mohinuddin v. State of Maharashtra (1995)3 SCC 567 (supra) it has been held by the Apex Court as under: 9. We may incidentally refer that the learned Counsel also sought to contend that the trial of the accused initially commenced under Section 161 IPC read with Section 5 (2) of the Prevention of Corruption Act, 1947 but the trial court ultimately convicted the accused under the provisions of the new Act of 1988. Therefore the trial is vitiated. We see no merit in this submission. Initially no doubt on 9.12.1983 the charges were framed under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act. 1947 but when the trial actually commenced in the year 1990 the then Presiding Judge framed charges under Sections 13(d) (i), (ii) read with Section 13 (2) and Section 7 of the Prevention of Corruption Act, 1988 and the trial proceeded. We do not find any objection having been taken in the trial court nor such contention was put forward in the appellate court. Even otherwise we see no prejudice has been caused to the accused since the gravamen of the charges under the relevant provisions of both the Acts in respect of these offences are the same in substance and at any rate the Appellant cannot raise such a contention for the first time in this Court when in fact no prejudice has been caused to him. Based on this judgment of the Supreme Court it has been argued by the counsel for the Respondent/State that Section 7 of the Act of 1988 is peri materia to Section 161 IPC and sections 5 (1) (d) and 5 (2) of the Act of 1947 are peri materia to Sections 13 (1) (d) and 13 (2) of the Act of 1988 and therefore, conviction of the accused/Appellant is in accordance with law as no prejudice has been caused to the accused/Appellant. 21. From the decision of the Supreme Court in the matter of M.W. Mohinuddin v. State of Maharashtra (1995)3 SCC 567 (supra) it appears that no prejudice might have been caused to the accused/Appellant for the reason that punishment of only six months' imprisonment had been awarded by the trial Court and even this sentence was reduced by the Supreme Court to the period already undergone and therefore, provisions for awarding minimum punishment (six months) under section 7 of the Act as compared to Section 161 IPC perhaps did not cause any prejudice to the accused/Appellant. Furthermore, in the case of M.W. Mohinuddin v. State of Maharashtra (1995)3 SCC 567 (supra) the Supreme Court has given two reasons for negating the arguments regarding repeal of the Act of 1947. Those reasons were that the Appellant cannot raise such a contention for the first time before the Supreme Court and even otherwise no prejudice has been caused to the accused/Appellant. In the case in hand, this submission has been made before this Court and therefore the present case can be distinguished with the case of M.W. Mohinuddin v. State of Maharashtra (1995)3 SCC 567 (supra). Furthermore, the prejudice can also be considered because the sentence as provided under Section 7 of the New Act and Section 161 IPC of the repealed Act is entirely different. If the law is considered, keeping in mind Article 20(1) of the Constitution of India and the facts of the present case the factual scenario would be totally different. 22. In a decision Collector of Central Excise v. Orient Fabrics Pvt. Ltd. (2004) 1 SCC 597 the Supreme Court has held as under: 19. It is now well settled principle of law that expropiratory legislation must be strictly construed (see DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana). It is further trite law that a penal statute must receive strict construction. It is now well settled principle of law that expropiratory legislation must be strictly construed (see DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana). It is further trite law that a penal statute must receive strict construction. 23. While considering the Article 20(1) of the Constitution of India in the matter of Transmission Corporation of AP v. Ch. Prabhakar and Ors. it has been held by the Apex Court as under: 13. A literal interpretation of Clause (1) of Article 20 would mean that protection is only against conviction for an act or omission which was not an offence under the law in force when the same was committed and against infliction of a great penalty than what was provided under the law in force when the offence was committed. Constitution being a living organic document needs to be construed in a borad and liberal sense. A construction most beneficial to the widest possible amplitude of its powers may have to be adopted. Of all the instruments, the constitution has the greater claim to be construed broadly and liberally. 24. In the matter of R.S. Kalakabur v. Stale of Karnataka 1994 Cri L.J. 2696 it has been held by the High Court of Karnataka as under: 6. Section 7 is placed on a higher pedestal than that of Section 161. IPC. Section 7 of the Act of 1988 while enhancing the period of punishment of 5 years, stipulates that the offender shall be compulsorily imprisoned for a period of not less than six months. In the instant case, this aspect was taken note of by the learned sessions Judge while sentencing the accused for imprisonment for a period of two years. The offence for which a person is sought to be convicted must have been in force at the time when the act with which he is charged was alleged to have been committed. A person therefore cannot be convicted for an act which was not an offence when that act was committed. Section 7 of the Act of 1988 was not in force at the time the Appellant/accused is alleged to have demanded and accepted illegal gratification. Contravention of a provision relating to fundamental right cannot be condoned. The trial held against the Appellant, therefore, is opposed to Article 20(1) of the Constitution. 25. In the matter of Sukhwant Singh v. Union of India 1996 Cri. Contravention of a provision relating to fundamental right cannot be condoned. The trial held against the Appellant, therefore, is opposed to Article 20(1) of the Constitution. 25. In the matter of Sukhwant Singh v. Union of India 1996 Cri. L.J. 4079 it has been held by the Delhi High Court as under: 17. Even the Karnataka High Court in the case of R.S. Kalakabur (1994 CriL.J. 2696) (Kant.) (supra) observed that the legislature has placed Section 7 on a higher pedestal than that of Section 161 IPC, Section 7 of the Act of 1988 while enhancing the period of punishment to five years, stipulate that the offender shall be compulsorily imprisoned for a period of not less than six months which was not there either under Section 5 of the Act of 1947 or under Section 161 IPC. Moreover, the offence for which a person is sought to be convicted must have been in force at the time when the act with which he is charged was alleged to have been committed. In this case also, Section 7 of the Act of 1988 was not in force at the time the Petitioner is alleged to have demanded and accepted the illegal gratification. The provision of Section 161 IPC have been omitted by the Act of 1988 as is clear from the reading of Section 31 of the Act. In view of this legal position to my mind, the Petitioner could not have been convicted under the provisions of Section 7 of the Act of 1988 because the provision was not in force at the relevant time. Therefore, the conviction and sentence against charge No. 1 under Section 7 of the Act of 1988 cannot be sustained being opposed to Article 20(1) of the Constitution. 26. In the matter of Asaram v. State of Maharashtra (1992) Cri L.J. 567 it has been held by the Bombay High Court as under: 3. Therefore, the conviction and sentence against charge No. 1 under Section 7 of the Act of 1988 cannot be sustained being opposed to Article 20(1) of the Constitution. 26. In the matter of Asaram v. State of Maharashtra (1992) Cri L.J. 567 it has been held by the Bombay High Court as under: 3. ...It is plain from the reading of the two corresponding provisions into enactments that if the charge is allowed to stand and if ultimately order of conviction is passed on the basis of the amended charge, then the Applicant would have to undergo greater penalty than the one which could have been imposed upon is under the old Act and that new enactment also provides for a minimum penalty which was not in contemplation of the legislature at the time of the earlier enactment. Considering from either point of view, I find that the order passed by the learned Special Judge requires to be quashed and set aside under the provisions of the Code of Criminal Procedure including Section 482 of the Code of Criminal Procedure. 27. Almost identical issue came up for consideration before the Supreme Court in the matter of Jagan M. Seshadri v. Stale of T.N. AIR (2002) SC 2399 in which it has been held by the Apex Court as under: 4. There is no dispute that when the offence was committed, it was the 1947 Act which was in operation. It is also not in dispute that at the time when FIR was lodged, it was also the 1947 Act which was in operation. Reliance on Section 30 (2) of the 1988 Act to hold that offence for which the Appellant should have been charged was one which fell under Section 13 of the 1988 Act is wholly misplaced. 5. A bare reading of Section 30 (2) of the 1988 Act shows that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act. shall, in so far as it is not inconsistent with the provisions of this Act. be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act. It does not substitute Section 13 in place of Section 5 of the 1947 Act. shall, in so far as it is not inconsistent with the provisions of this Act. be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act. It does not substitute Section 13 in place of Section 5 of the 1947 Act. Section 30 (2) is applicable "without prejudice to the application of Section 6 of the General Clauses. Act, 1897." In our opinion, the application of Section 13 of the 1988 Act to the fact situation of the present case would offend Section 6 of the General Clauses Act, which, inter alia provides that repeal shall not (i) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or (ii) affect any investigation, legal proceedings or remedy in respect of any such rights, privilege, obligation, penalty, forfeiture or punishment. Section 13 both in the matter of punishment as also by the addition of the explanation to Section 13(1) (e) is materially different from Section 5 of the 1947 Act. The presumption permitted to be raised under the explanation to Section 13 (1) (e) was not available to be raised under Section 5 (1) (e) of the 1947 Act. This difference can have a material bearing on the case. 28. Thus from the aforesaid analysis of the legal provisions and taking into consideration Article 20(1) of the Constitution of India it is clem" that the Appellant7 accused could not have been tried, convicted and sentenced for the offence under Section 7 and 13(1 )(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 as the Act of 1988 was not in force when the offence was committed by the Appellant on 15.01.1988, such a conviction recorded and sentence awarded is opposed to article 20 (1) of the Constitution of Indian and as the Appellant herein has apparently suffered prejudice on account of conviction being made under the Act of 1988 and sentence awarded. The appeal preferred by the Appellant the point of trial being violative of Article 20(1) of the Constitution of India has vehemently and forcefully been raised by the Appellant herein. The appeal preferred by the Appellant the point of trial being violative of Article 20(1) of the Constitution of India has vehemently and forcefully been raised by the Appellant herein. The decision relied upon by the prosecution that is M W. Mohinuddin v. Stare of Maharashtra 1995 3 SCC 567 not helpful to prosecution in that case even in the appellate court the plea of trial being vitiated was not raised by the Appellant therein, which was noted with approval by Supreme Court in para 9 of the judgment. 29. Legislature has placed section 7 of the Prevention of Corruption Act on a higher pedestal than that of Section 161 IPC. Section 7 of the Act 1988 while enhancing the period of punishment to five years stipulates that the offender shall be compulsorily imprisoned for a period of not less than six months which was not there either under Section 5 of the Act or under Section 161 IPC. Moreover, the offence for which a person is sought to be convicted must have been in force at the time when the Act with which he is charged was alleged to have been committed. In this case also Section 7 of the Act of 1988 was not in force at the time the Appellant is alleged to have demanded and accepted the illegal gratification. The provisions of Section 161 IPC have been omitted by the Act of 1988 as is clear from the reading of Section 31 of the Act. In view of this legal position, the Appellant could not have been convicted under the provisions of Section 7 of the Act of 1988 because the said provision was not in force at the relevant time. Therefore, the conviction and sentence against him under Section 7 of the Act of 1988 cannot be sustained being opposed to Article 20 (1) of the Constitution. 30. In view of above, the appeal is allowed. Impugned judgment is hereby set aside. Accused/Appellant is acquitted of all the charges levelled against him. As the Appellant is already on bail, his bail bonds stand discharged.