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2011 DIGILAW 379 (CHH)

MOTILAL BANAWALA v. STATE OF M. P.

2011-12-05

RADHE SHYAM SHARMA

body2011
JUDGMENT 1. The instant appeal preferred by accused/appellant Motilal Banawala is directed against judgment dated 7-6-1994 passed by Second Additional Sessions Judge, Bilaspur in Special Sessions Case No.2/88, whereby the appellant has been convicted under Section 161 of the Indian Penal Code and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (henceforth 'the Act, 1947') and sentenced to undergo rigorous imprisonment for one year, rigorous imprisonment for one year, respectively and to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for one month. Both the sentences of imprisonment are directed to run concurrently. 2. Case of the prosecution, in brief, is as under: Complainant Pramod Kale (PW-8) is younger brother of Prakash Kale (PW-6). On 19-3-1986, the appellant was posted as Labour Sub-Inspector at Bilaspur. On 18-3-1986, the appellant entered the motor-parts shop of Prakash Kale (PW-6). At that time, Pramod Kale (PW-8) was sitting in the said shop of his elder brother Prakash Kale (PW-6). The appellant asked the complainant to show registration certificate of establishment of the shop. Pramod Kale (PW8) told the appellant that his brother Prakash Kale (PW-6) had gone to Damoh and desired papers would be shown on his return. On this, the appellant threatened Pramod Kale (PW-8) that he had to pay Rs.150/- to him, otherwise, he will present the case in the Court. Pramod Kale (PW-8) made a written complaint (Ex-P/8) in the office of Lokayukt at Bilaspur. The complaint (Ex.P8) also bears the signature of Prakash Kale (PW-6). Deputy Superintendent of Police, Lokayukt forwarded the complaint (Ex.P-8) to Inspector, Lokayukt H.N. Shukla (PW-10) for taking action and for arranging trap-proceedings. H.N. Shukla (PW-10) called for panch witnesses Additional Tahsildar Balwant Singh Chhabra (PW-1) and S.N. Dubey, Dy. S.P., Lokayukta, Bilaspur. Pre-trap demonstration was arranged, wherein solution of sodium carbonate was prepared in a glass. On dip of a water paper in it, colour of the solution did not change. Thereafter, another piece of paper smeared with phenolphthalein powder was dipped in the solution of sodium carbonate. Colour of the solution turned pink. Panch nama of pre-trap was prepared vide Ex-P/2. Pre-trap demonstration was arranged, wherein solution of sodium carbonate was prepared in a glass. On dip of a water paper in it, colour of the solution did not change. Thereafter, another piece of paper smeared with phenolphthalein powder was dipped in the solution of sodium carbonate. Colour of the solution turned pink. Panch nama of pre-trap was prepared vide Ex-P/2. After giving the demonstration, complainant Pramod Kale (PW-8) was asked to present currency notes of Rs.150/-, which were submitted by him in the denomination of Rs.100/- and Rs.50/-, on which phenolphthalein powder was smeared and kept in the pocket of T-Shirt of complainant Pramod Kale (PW-8). The complainant was also informed and guided as to how the trap would be arranged and as to the role which he was required to play in the trap-proceedings. Numbers given in the currency notes were recorded in pre-trap Panchnama (Ex-P/2). After preparing pre-trap Panchnama (Ex-P/2) and arranging pre.-trap proceedings, the trap-team proceeded to the shop of Prakash Kale (PW-6), namely, Prakash Automobiles. Complainant Pramod Kale (PW-8) was asked by the trap-team to go in the shop and remain present there. After sometime, the appellant reached there and entered the shop. Complainant Pramod Kale (PW-8) gave currency notes of Rs.150/- to the appellant. Thereafter, complainant Pramod Kale (PW-8) and the appellant came out of the shop. Complainant Pramod Kale (PW-8) transmitted signal to the waiting trap-team. Members of the trap-team reached the spot immediately and caught hands of the appellant. The trap-team seized the currency notes from the appellant vide Ex.P/11. Numbers of the notes seized from the appellant were compared with the numbers mentioned in the pre-trap Panch nama (Ex-P/2). Solution of sodium carbonate was prepared and hands of the appellant were washed in it, colour of which turned pink. Thereafter, the solution was kept in a bottle and sealed. Another solution of sodium carbonate was prepared, in which, seized currency notes were dipped, colour of which also turned pink. Thereafter, the solution was kept in another bottle and sealed. Trap Panchnama was prepared vide Ex-P/3. House of the appellant was searched and inspection note made in regard to the shop Prakash Automobiles was seized vide Ex-P/13. During the search of the house of the appellant, currency notes of Rs.3805/- were seized vide Ex-P/1, Thereafter, Nalisi (Ex.P-15) was recorded and First Information Report (Ex-P/16) was lodged. Trap Panchnama was prepared vide Ex-P/3. House of the appellant was searched and inspection note made in regard to the shop Prakash Automobiles was seized vide Ex-P/13. During the search of the house of the appellant, currency notes of Rs.3805/- were seized vide Ex-P/1, Thereafter, Nalisi (Ex.P-15) was recorded and First Information Report (Ex-P/16) was lodged. Sealed solutions were sent for examination to Forensic Science Laboratory, Sagar., Report (Ex-P/18) was received from the office of Director, Forensic Science Laboratory, Sagar, in which test of phenolphthalein powder was found positive. Registration-Certificate issued in the name of Prakash Automobiles was also seized vide Ex-P/9 and it was given to the appellant on Supurdnama. After obtaining sanction for prosecution (Ex-P/6) against the appellant, charge sheet was filed against him before Sessions Judge (Special Judge), Bilaspur. The learned Second Additional Sessions Judge, Bilaspur framed charges against the appellant under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Act, 1947. After appreciation of the evidence available on record, the learned Additional Sessions Judge convicted and sentenced the appellant as mentioned above. 3. Shri Rajeev Shrivastava, learned counsel for the appellant argued that the prosecution has failed to prove the offence against the appellant by clinching and cogent evidence. Demand of illegal gratification, which is sine qua non for convicting the appellant under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Act, 1947, is not proved. To prove the same, presumption cannot be drawn against the appellant. He further submitted that even if presumption is drawn, the appellant has established his case that he did not accept the money as illegal gratification. He further submitted that complainant Pramod Kale (PW-8) has not supported the case of the prosecution and has been declared hostile. He further submitted that it is necessary for the prosecution to satisfy and establish all the ingredients of Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Act, 1947 before conviction of the appellant. He further submitted that the impugned judgment is not sustainable in the eyes of law and the appellant deserves to be acquitted of the charges framed against him. 4. On the other hand, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the prosecution has led clinching and reliable evidence. He further submitted that the impugned judgment is not sustainable in the eyes of law and the appellant deserves to be acquitted of the charges framed against him. 4. On the other hand, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the prosecution has led clinching and reliable evidence. Bribe money was recovered from the appellant. When the hands of the appellant were washed in the sodium carbonate solution, colour of the solution turned pink. Therefore, there is presumption against the -appellant and the judgment of conviction and sentence against him does not warrant any interference by this Court. 5. I have heard learned counsel for the parties at length and have also perused the material available on record. Learned Additional Sessions Judge has observed in para 18 of the impugned judgment that complainant Pramod Kale (PW-8) and Prakash Kale (PW-6) were declared hostile, but they admitted that complaint (Ex-P/8) was made by Pramod Kale (PW-8) and the appellant received the bribe money from the complainant, which is illegal gratification. The learned Additional Sessions Judge has convicted the appellant under Section 161 of the Indian Penal Code and under Section 5(1)(d) read with Section 5(2) of the Act, 1947. 6. In Suraj Mal Vs. State (Delhi Administration) (1979 4 SCC 742), the Hon'ble Supreme Court held that mere recovery by itself cannot prove the charge of the prosecution against the appellant in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. 7. In C.M. Girish Babu Vs. CBI Cochin, High Court of Kerala (2009 3 SCC 779), the Hon'ble Supreme Court observed thus: "18. In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. 22. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. 22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. "4. .........It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in duing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." (emphasis supplied) (See V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 at AIR p. 1764, para 4.) 8. In State of Kerala and another Vs. C.P. Rao (2011) 6 SCC 450, the Hon'ble Supreme Court observed thus: "7. In the background of these facts, especially the non-examination of CW 1, was found very crucial by the High Court. In State of Kerala and another Vs. C.P. Rao (2011) 6 SCC 450, the Hon'ble Supreme Court observed thus: "7. In the background of these facts, especially the non-examination of CW 1, was found very crucial by the High Court. The High Court has referred to the decision of this Court in Panalal Damodar Rathi v. State ofA1aharashtra, (1979) 4 SCC 526, wherein a three-Judge Bench of this Court held that when there was no corroboration of testimony of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on. In the aforesaid circumstances, the three-Judge Bench in Panalal Damodar Rathi case held that there is grave suspicion about the appellant's complicity and the case has not been proved beyond reasonable doubt. (See SCC para 11.) 10. In CM Girish Babu v. CBI, (2009) 3 SCC 779, this Court while dealing with the case under the Prevention of Corruption Act, 1988, by referring to its previous decision in Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725, held that mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused. In the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. (See SCC para 18.) 11. In a subsequent decision of this Court also under the Prevention of Corruption Act, in A. Subair v. State of Kerala, (2009) 6 SCC 587, this Court made certain pertinent observations about the necessity of the presence of the complainant in a bribery case. The relevant observations have been made in paras 18-19 which are quoted below: (SCC p. 592) "18. ........ The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification for non-examination of the complainant. 19. We find it difficult to countenance the approach of the High Court. ........ The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification for non-examination of the complainant. 19. We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for the non-examination of the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the court." 12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in SCC para 28 of A. Subair case made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court." 9. H.N. Shukla (PW-10) deposed that at the relevant period, he was posted as an Inspector in Lokayukt Office at Bilaspur. On 19-3-1986, Pramod Kale (PW -8) made complaint (Ex.P-8) before Deputy Superintendent of Police, namely, D.L. Markam. The complaint (Ex.P-8) was forwarded by the Deputy Superintendent of Police to him. The complaint (Ex.P-8) was made by Pramod Kale (PW -8), which also bears the signature of Prakash Kale (PW -6). In the complaint (Ex.P-8), it is mentioned that the appellant had demanded bribe of Rs.150/- from the complainant for renewal of registration certificate of the shop. On the basis of complaint (Ex.P-8), he had called two panch witnesses Balwant Singh Chhabra, Additional Tahsildar, Bilaspur (PW-l) and S.N. Dubey, Deputy Superintendent of Police, Lokayukt. A pre-trap demonstration was arranged. The complaint (Ex.P-8) was given to the witnesses for their perusal. A solution of sodium carbonate was prepared. Paper was dipped in the solution. Colour of the solution did not change. Thereafter, another paper smeared with phenolphthalein powder was dipped in the solution of sodium carbonate. Colour of the solution turned pink. A pre-trap demonstration was arranged. The complaint (Ex.P-8) was given to the witnesses for their perusal. A solution of sodium carbonate was prepared. Paper was dipped in the solution. Colour of the solution did not change. Thereafter, another paper smeared with phenolphthalein powder was dipped in the solution of sodium carbonate. Colour of the solution turned pink. The solution was kept in a bottle and sealed. Thereafter, the complainant was asked to present currency notes of Rs.150/-. The complainant submitted currency notes of Rs.150/- in denominations of Rs.100/- and Rs.50/-. Numbers of the currency notes are mentioned in the pre-trap Panchnama. Phenolphthalein powder was smeared on the currency notes and the notes were kept in the pocket of T-Shirt of the complainant. He further deposed that the complainant was informed and guided that he would have to give the currency notes to the appellant only on being demanded by him. Pre-Trap Panchnama (Ex.P-2) was prepared. Balwant Singh Chhabra (PW-l) also deposed in similar fashion. He further deposed that thereafter they went to the shop of Prakash Kale (PW -6). They had gone to the shop of Prakash Kale (PW-6), brother of Pramod Kale (PW-8) and they were standing nearby the shop. The complainant entered the shop. After sometime, the appellant came there and entered the said shop. After sometime, the complainant and the appellant came out of the shop. Rubbing his head, complainant Pramod Kale (PW-8) transmitted signal to the waiting trap-team. The waiting trap-team reached the spot and took the appellant inside the said shop. A solution of sodium carbonate was prepared and hands of the appellant were washed in it. Colour of the solution turned pink, which was kept in a bottle and sealed. Thereafter, another solution of sodium carbonate was prepared and hands of Balwant Singh Chhabra (PW-l) were dipped in it. Colour of the solution did not change. Thereafter, Balwant Singh Chhabra (PW-1) recovered currency notes from the pocket of the pant of the appellant and their numbers were compared with the numbers mentioned in the pre-trap Panchnama, which were found to be similar. A solution of sodium carbonate was prepared and the seized currency notes were dipped in it. Colour of the solution turned pink. This solution was kept in a bottle and sealed. Seizure of the currency notes was made vide EX.P-l1. A solution of sodium carbonate was prepared and the seized currency notes were dipped in it. Colour of the solution turned pink. This solution was kept in a bottle and sealed. Seizure of the currency notes was made vide EX.P-l1. Balwant Singh Chhabra (PW -1) also deposed in similar fashion in paragraphs 5, 6 and 7 of his deposition. 10. Prakash Kale (PW-6) deposed that he was running a shop of auto-parts in the name and style of Prakash Automobiles at Jarhabhata Chowk, Bilaspur. In March, 1986, his brother Pramod Kale (PW-8) told him that Labour Inspector (the appellant) had come to his shop and demanded Rs.150/-. Thereafter, he made complaint (Ex.P-8) in vigilance office. Pramod Kale (PW-8) also deposed that his elder brother had a shop of auto-parts at Jarhabhata Chowk and Labour Inspector (the appellant) had come to the shop and demanded Rs.150/- for Gumasta Licence relating to the shop. On the date when the appellant had come to the shop, his elder brother Prakash Kale (PW-6) had gone to Damoh. He further deposed that Prakash Kale (PW-6) had given him sum of Rs. 150/- and asked him to give the money to the appellant. 11. Now, I shall examine whether the appellant demanded Rs.150/- as bribe from the complainant. 12. Prakash Kale (PW-6) deposed that the appellant had come to his shop in his absence, inspected his shop and pointed out some deficiencies relating to licence/registration certificate of the shop, which are mentioned in the inspection note. He further deposed that the appellant had told his brother that renewal of licence was necessary and therefor, sum of Rs. 150/- 200/- will be required. He further deposed that the appellant had told his brother that if the deficiencies art) not cured, the case will be put up in Court against the owner of the shop. Pramod Kale (PW-8) deposed that the appellant had come to his brother's shop, inspected the shop and pointed out some deficiencies of the shop. The appellant had also told that licence of the shop was not renewed, its renewal was necessary and cost of renewal including penalty was near about Rs.150/- - 200/-. He further deposed that it is true that his brother gave him amount of Rs.150/- and asked him to give the amount to the appellant as fee for renewal of licence. 13. He further deposed that it is true that his brother gave him amount of Rs.150/- and asked him to give the amount to the appellant as fee for renewal of licence. 13. Prakash Kale (PW-6) deposed that he was not present at the time of giving money to the appellant. When he returned to the shop, he saw that currency notes were in the hand of the vigilance officer. G.P.Yadu (PW-9) deposed that during 1981-86, he was posted as a Labour Inspector at Bilaspur. He deposed that a shop, namely, Prakash Automobiles was inspected by the appellant and he had pointed out some deficiencies during the inspection and the licence of the shop was not renewed and three other deficiencies were pointed out by the appellant. He further deposed that the appellant told the shop-owner that for renewal of licence and compounding fee, total amounting to Rs.171/- was required to be paid, which shall be payable by challan or cash in the office. 14. Having examined the evidence of complainant Pramod Kale (PW8), Prakash Kale (PW-6) and G.P.Yadu (PW-9), I find that they have failed to support the case of the prosecution by deposing to the effect that the appellant demanded money for curing the deficiencies pointed out by him in the shop of Prakash Kale (PW -6) asking for payment of compounding fee and fee for renewal of licence/registration certificate of the shop. The rest of the evidence on record though brings out the fact of recovery of the currency notes from the pocket of the appellant and on his hands being tested in the solution of sodium carbonate test of phenolphthalein was found to be positive yet they themselves are not sufficient to hold that the appellant did demand illegal gratification of Rs.150/- from the complainant and received the same. Since the complainant Pramod Kale (PW -8) and Prakash Kale (PW -6) do not specifically speak about demand of bribe by the appellant, it appears that the appellant had asked the complainant to pay the money for compounding fee and fee for renewal of licence/registration certification of the shop, which is corroborated by the evidence of G.P.Yadu (PW-9). I am of the view that the evidence of the other witnesses placed on record cannot, in any way, help the prosecution in order to establish the demand by the appellant. 15. I am of the view that the evidence of the other witnesses placed on record cannot, in any way, help the prosecution in order to establish the demand by the appellant. 15. It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of an inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence. If each link of the chain of events is established pointing towards the guilt of the accused, the prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence. 16. So far presumption under Section 4(1) of the Act, 1947 is concerned, it is well settled that the presumption made under Section 4(1) is not inviolable one. The accused charged with the offence can rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption, the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification. It is equally well settled that the burden of proof upon the accused person against whom the presumption is made under Section 4(1) of the Act, 1947 is not akin to the burden placed on the prosecution to prove the case beyond a reasonable doubt. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts, i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. 17. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts, i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. 17. In the instant case, the prosecution has utterly failed to prove the demand and acceptance of bribe by the appellant from the complainant Mere recovery of money from the appellant by itself cannot prove the charge of the prosecution against the appellant in the absence of evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. 18. For the foregoing reasons, the conviction and sentence awarded to the appellant are set aside and the appeal is allowed. The appellant is acquitted of the charges framed against him. Presently, he is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.