Research › Search › Judgment

Chhattisgarh High Court · body

2012 DIGILAW 153 (CHH)

SUNHAR SINGH DHRUV v. STATE OF M. P.

2012-06-21

PRITINKER DIWAKER

body2012
JUDGMENT 1. The appellant has preferred this appeal against the judgment and order dated 15.10.1999 passed by Special Judge/Additional Sessions Judge Bilaspur in Special Case No. 02/1997 convicting the accused/appellant under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act (for short the "Act") and sentencing him to undergo rigorous imprisonment for six months with fine of Rs. 500 u/s 7 and rigorous imprisonment for one year with fine of Rs. 1,000 u/s 13 (1)(D) read with 13 (2) of the Act, plus default stipulations. 2. Case of the prosecution in brief is that at the relevant time the accused/appellant was working as Assistant Sub Inspector in the police department and posted at police station Lormi District Bilaspur. On 2.9.1996 an application Ex.P-1 was made by complainant Babu Ram Sahu (PW-1) before S.P. (Lokayukta), Bilaspur stating that he had loaned Rs. 30,000 to one Bholaram Sahu for purchasing of some land and when he asked him to return the said amount, instead of doing so he implicated him in a false case of theft of buffalos for which a report was lodged against him by said Bholaram Sahu in police station Lormi. On account of lodgment of the said report, present appellant was demanding Rs. 4000 for giving him a clean chit. It is further stated in the said application that the complainant was threatened by the accused/appellant that if the money was not given to him, he would be put behind the bars but as he was not interested in giving the bribe to the accused/appellant and wanted an action against him, the written report has been made against him. On 3.9.1996 preliminary Panchnama Ex. P-2 was prepared, two independent witnesses namely M.L. Kusre (PW-8) and Dr. Anup Chaterjee (PW-7) were called, written report Ex. P-1 was shown to them, trap party was constituted and preparation to complete the formalities was made. Test was demonstrated by applying phenolphthalein powder on 40 currency notes of 100 denomination and then the trap party went to the house of the accused/appellant in the afternoon. Complainant Babu Ram Sahu (PW-1) entered the house of the accused/appellant, gave him Rs. 4000 and after coming out he gave a signal to the trap party. In the meanwhile, accused/appellant came to the police station which was adjacent to his house. Complainant Babu Ram Sahu (PW-1) entered the house of the accused/appellant, gave him Rs. 4000 and after coming out he gave a signal to the trap party. In the meanwhile, accused/appellant came to the police station which was adjacent to his house. Thereafter, trap party also went to the police station and 40 currency notes of 100 denomination were seized from the pocket of his shirt vide Ex. P-32, phenolphthalein test was conducted which proved positive. Further investigation was taken up by Dy. S.P. namely Shyam Das (PW-15), witnesses were examined and after obtaining sanction charge sheet was filed on 02.09.1997 for the offences under Sections 7, 13 (1) (D), 13 (2) of the Act. 3. In support of its case, the prosecution has examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the allegations made against him and pleaded his innocence and false implication in the case. This apart, Bihari Lal (DW-1) and Ram Dau Dadsena (DW-2) have also been examined by the defence in support of its case. Accused/appellant has taken a defence that there was some dispute between Bholaram (PW -12) and complainant (PW-1) and while trying to resolve the same he had asked the complainant to pay Rs. 28000 to Bholaram, but he never demanded the amount of Rs. 4000 as has been alleged by the prosecution. 4. After hearing the parties, the Court below convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that the appellant had never demanded any bribe amount as has been alleged by the complainant. He submits that it is the complainant himself who had to give Rs. 28,500 to Bholaram (PW12) and on the request made by Bholaram (PW-12), the accused/appellant was trying to resolve the dispute between them. He further submits that complaint made by Bholaram on 26.7.1999 Ex. P-4 was already closed by Head Constable namely Santosh Pandey (PW-3) by putting a specific note on it that no case for interference was made out. He submits that there was no occasion for the accused/appellant to make any demand from the complainant as no dispute whatsoever concerning to him was pending for consideration. P-4 was already closed by Head Constable namely Santosh Pandey (PW-3) by putting a specific note on it that no case for interference was made out. He submits that there was no occasion for the accused/appellant to make any demand from the complainant as no dispute whatsoever concerning to him was pending for consideration. He submits that Bholaram (PW-12), Bihari Lal (DW-1) and Ram Dau Dadsena (DW-2) have categorically supported the defence taken by the accused/appellant. He submits that mere acceptance of amount is not sufficient to convict the accused unless the other related things have been proved by the prosecution. He further submits that written report Ex. P-1 is very cryptic and no descriptions whatsoever have been given in the same as to when the complainant met the accused/appellant and he made any demand from him. According to the counsel for the appellant, none of the witnesses including Bholaram (PW-12) has supported the statement of the complainant (PW-1). 6. On the other hand supporting the judgment impugned counsel for the respondent/State submits that demand and acceptance of illegal gratification both have been proved by the prosecution as is required under the law. He submits that present is a case where the accused/appellant taking advantage of his position had exerted pressure on the complainant and demanded Rs. 4000 from him and the poor complainant had no other option except either to give the money or make a report against him. According to the State counsel, independent witnesses namely M.L. Kusre (PW-8) and Dr. Anup Chaterjee (PW-7) have duly supported the case of the prosecution regarding trap and recovery of tainted money from the accused/appellant. He thus submits that the judgment impugned convicting the accused/appellant under the special provision is just and proper. 7. Complainant Babu Ram Sahu (PW-1) has stated in his evidence that at the relevant time accused/appellant was working as Chhota Daroga (Assistant Sub Inspector). According to this witness, Bholaram (PW-12) had lodged a report against him for the theft of buffalos though he had not done anything. He was called by the accused/appellant to the police station where he told him that he would get the matter compromised if he gave Rs. 5000 to him or else action would be taken against him. According to this witness, at that time, several persons were sitting with the accused/appellant. He was called by the accused/appellant to the police station where he told him that he would get the matter compromised if he gave Rs. 5000 to him or else action would be taken against him. According to this witness, at that time, several persons were sitting with the accused/appellant. Since he did not want to give money to the accused/appellant, after giving Rs. 1000 he went to the Commissioner office and met some Gandhi (S.P. Lokayukta) and on being asked he told him that he did not commit any mistake and therefore was not interested in giving money. Thereupon, said Gandhi gave a tape recorder to him so that it could be ascertained whether the accused/appellant was demanding money or not. Thereafter, this witness went to the police station where accused/appellant asked him as to when he would give the remaining amount of Rs. 4000 and that Rs. 1000 were already received by him. The accused/appellant is also said to have told the complainant that if that amount of Rs. 4000 was not given to him, action would be taken against him. This conversation was recorded in the tape-recorder and it was handed over to some Nayak Sahab in the Commissioner office. After arranging money he again went to the office of Commissioner two days thereafter and filed an application Ex. P-1 duly signed by him which was prepared by Ram Kumar Porte (PW -4). Thereafter, formalities with respect to chemical test were completed and, he submitted 40 currency notes of 100 denomination and the number of the same were noted down and some chemical powder was applied thereon. Thereafter the said currency notes were put by someone in the pocket of his shirt with an instruction not to touch the same and give the same to the accused/appellant on demand and after giving the same to him he was asked to come out and give signal to the trap party by putting a towel on his shoulder. According to this witness, when the members of the trap party asked the accused/appellant about accepting money from him, he denied the same. When the trap party took a search of the accused/appellant, said currency notes were seized, phenolphthalein test was done and after completing the formalities Panchnama Ex. P-3 was prepared. According to this witness, when the members of the trap party asked the accused/appellant about accepting money from him, he denied the same. When the trap party took a search of the accused/appellant, said currency notes were seized, phenolphthalein test was done and after completing the formalities Panchnama Ex. P-3 was prepared. In cross-examination, this witness has stated that he and Bholaram (PW -12) are in the business of selling and purchasing buffalos. Various suggestions were put to this witness regarding the sale and purchase of buffalos but they have been denied by him. He has also denied the fact that Ram Kumar Porte (PW-4) was middleman in the said transaction. Ambika Prasad Sharma (PW-2) is the Patwari who prepared spot map Ex. P-4. Head Constable - Santosh Pandey (PW-3) is the witness who has proved entry made in Rojnamcha Sanha No. 1001 on 26.7.1996. This witness has stated that on the complaint of Bholaram (PW-12) a report was registered against the complainant herein in respect of selling the buffalos for a consideration of 28,500 and typed copy of the said report is Ex. P-4 and Rojnamcha entry Ex. P5. He has stated that on 26.7.1996 itself he had mentioned in the Rojnamcha at S.No.104/1996 that no interference by the police was called for. This witness has further stated that he did not know the complainant nor has he seen him meeting the accused/appellant. Ram Kumar Porte (PW-4) has stated that on or about the date of incident when he was going to village Lormi, he met the complainant who happened to be in his relations and he had informed him that accused/appellant had implicated him in a false case of theft of buffalos and was harassing him for money. On the request of the complainant, he wrote a written complaint Ex.P-1. In cross examination, this witness has stated that complainant had informed him about the demand of Rs. 4000 and not Rs. 5000 made by the accused/appellant. This witness has denied that he collects money on behalf of the police of police station Lormi though he has admitted that he used to visit the said police station. Shantiyan Kujur (PW-5) the police constable from whom seizure of Rojnamcha Ex. P-7 to Ex. P-30 was made. Arun Kumar Singh (PW -6) is the witness of sanction to prosecute the accused/appellant vide Ex. P-31. Dr. Shantiyan Kujur (PW-5) the police constable from whom seizure of Rojnamcha Ex. P-7 to Ex. P-30 was made. Arun Kumar Singh (PW -6) is the witness of sanction to prosecute the accused/appellant vide Ex. P-31. Dr. Anup Chaterjee (PW-7) and Mahendra Lal Kusre (PW-8) are the independent witnesses before whom trap proceedings were conducted have supported the case of the prosecution and described the entire incident and the manner in which it has taken place. Vijay Ekka (PW-9) is the witness in whose presence initial preparation of trap was done. He too has described the manner in which the entire proceedings were drawn. Badri Singh Rajput (PW-10) and Mohitram (PW-11) are the witnesses who assisted in the investigation. Bholaram (PW -12) is the witness who had lodged written report Ex. P-4 against the complainant herein (PW -1). He has stated that on his responsibility he had made available to the complainant the buffalos and calves worth Rs. 28,500 by three-four persons of the village but in spite of his repeated requests the money was not given by him and therefore a report was lodged by him. He has denied the fact that the complainant had given him Rs. 30000 for purchasing any plot and if any report for that was lodged against him, it was incorrect. He has stated that he met the complainant herein in police station Lormi and at that time accused/appellant and one head constable were also present and after discussion the complainant had agreed to give Rs. 5000 to him and Rs. 1000 were given by him immediately to the accused/appellant. Complainant had also agreed to give the remaining amount of Rs. 4000 two days thereafter. Complainant had also told him to give the remaining amount to him in presence of the police people. He met the complainant in the market in presence of the accused/appellant as also Bihari Lal (DW-1) and Ram Dau Dadsena (DW-2) where the complainant had threatened the accused/appellant to drag him in a bribe case. According to this witness, later on he came to know that the complainant had implicated the accused/appellant in a bribe case. Ramji (PW-13) has stated that he had no money transaction with the complainant. V.N. Singh (PW-14) is the witness who has proved the appointment of the accused/appellant in the police department. According to this witness, later on he came to know that the complainant had implicated the accused/appellant in a bribe case. Ramji (PW-13) has stated that he had no money transaction with the complainant. V.N. Singh (PW-14) is the witness who has proved the appointment of the accused/appellant in the police department. Deputy Superintendent of Police namely Syam Das (PW-15) is the investigating officer who has duly supported the case of the prosecution and described the manner in which the complaint was made by the complainant, trap Panchnama was prepared, trap was laid and recovery of the tainted amount was made from the possession of the accused/appellant. Bihari Lal (DW-1) has stated that he knew the accused/appellant, the complainant (PW-1) and Bholaram (PW-12) who were engaged in the sale and purchase of buffalos. According to him, about 12 calves were sold by Bholaram (PW-12) to the complainant herein (PW-1) for a consideration of Rs. 28,500 in his presence and also in presence of Ram Dau Dadsena (DW-2) and then Bholaram (PW-12) had made a complaint to him that complainant (PW -1) was not giving the money. According to him, in the Panchayat building Bholaram (PW-12) had again requested the accused/appellant to get the matter pertaining to sale of calves settled on which accused/appellant had asked him to settle the dispute amicably and ultimately it was decided that complainant herein would give Rs. 5,000 to Bholaram (PW12). However, when the accused/appellant left the said place, complainant (PW1) told him saying how the accused/appellant could interfere in the matter and give a decision and that he would implicate him in a false case. Ram Dau Dadsena (DW-2) has also stated similar to what has been stated by Bihari Lal (DW-1). 8. Minute examination of the material available on record goes to show that the complaint (Ex. P-4) lodged by Bholaram against complainant Baburam dated 26.7.1999 was already closed on that day itself by Santosh Pandey vide Ex. P-3 and thus question of making any demand by the accused/appellant in respect of the dispute said to have taken place in the month of September becomes doubtful. Further, as per the statement of prosecution witness Bholaram (PW-12) who lodged the written report Ex. P-4 against the complainant herein (PW-1), on his responsibility he had made available buffalos and calves to the complainant worth Rs. Further, as per the statement of prosecution witness Bholaram (PW-12) who lodged the written report Ex. P-4 against the complainant herein (PW-1), on his responsibility he had made available buffalos and calves to the complainant worth Rs. 28,500 by three-four persons of the village but in spite of his repeated requests the money was not given by him and therefore a report was lodged by him. This witness has categorically denied the fact that the complainant had given him Rs. 30,000 for purchasing any plot and if any report for that was lodged against him, it was incorrect. He has further stated that he met the complainant herein in police station Lormi and at that time accused/appellant and one head constable were also present and after discussion the complainant had agreed to give Rs. 5000 to him and Rs. 1000 were given by him immediately to the accused/appellant and that the complainant had agreed to give the remaining amount of Rs. 4000 two days thereafter. Complainant had also told him to give the remaining amount to him in presence of the police people. He met the complainant in the market in presence of the accused/appellant as also Bihari Lal (DW-1) and Ram Dau Dadsena (DW-2) where the complainant had threatened the accused/appellant to drag him in a bribe case. According to this witness, later he came to know that the complainant had implicated the accused/appellant in a bribe case. This witness has stated that in his presence no demand was made by the accused/appellant from the complainant. Though this witness has not been declared hostile by the prosecution, his statement is in conformity with the Court statement of the accused/appellant recorded under Section 313 of the Code of Criminal Procedure and that of defence witnesses namely Bihari Lal (DW-1) and Ram Dau Dadse a (DW-2). In the statement recorded under Section 313 of the Code of Criminal Procedure the accused/appellant has taken a defence that he tried to resolve the dispute between Bholaram and complainant Baburam and it is he who had asked Baburam to return money to Bholaram as a result of which Baburam got annoyed with him saying as to who he was to get the money returned and that for this reason only he has implicated him in this case. 9. 9. It is a well settled legal position that if the reason for receiving the amount is explained and the explanation is found to be probable and reasonable, the appellant has to be acquitted. So is the position in this case also because in the statement of the accused/appellant recorded under Section 313 of the Code of Criminal Procedure, he has categorically stated that as he had tried to resolve the dispute between the two i.e. Bholaram and the complainant Baburam, complainant Baburam got annoyed and threatened him to implicate in a false case. Further, in the case in hand the factum of demand of illegal gratification by the accused/appellant has not been established by the prosecution. Hon'ble the Supreme Court time and again has reiterated 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. Even the official witnesses namely Dr. Anup Chaterejee (PW7) and Mahendra Lal Kusre (PW-8) have stated in their evidence that they did not see the incident of bribe being given to the accused/appellant. Since the prosecution has not been able to prove the demand of illegal gratification by adducing reliable and clinching evidence, merely on recovery of tainted money will not be sufficient to base conviction of the accused/appellant and in these circumstances he should receive the benefit of doubt. 10. In the result, the appeal is allowed. Findings recorded by the Court below in the judgment impugned are set aside. Accused/appellant is acquitted of the charges levelled against him. Accused/appellant is already on bail. His bail bonds stand discharged. Appeal Allowed.