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2012 DIGILAW 197 (CHH)

STATE OF M. P. v. L. K. SAHU

2012-08-03

MANINDRA MOHAN SHRIVASTAVA

body2012
ORDER 1. Heard. 2. This appeal against acquittal preferred by the State arises out of judgment dated 09/03/96 passed by the Special Judge in Special case No.16/92, whereby and whereunder, the respondent/accused has been acquitted of the charges under Section 7 R/w Section 13 of the Prevention of Corruption Act, 1988 (for short "the Act of 1988"). 3. Case of the prosecution, in brief, is that during the period respondent/accused was posted and working as Industries Inspector in District Industries Centre, Bilaspur, the complainant - Jethuram (PW8) submitted an application in Exhibit P/13 in the District Industries Centre, Bilaspur for grant of loan for installation of Haller Mill in the month of August 1990. Further case of the prosecution is that after two months, in the month of October 1990, when the complainant approached the respondent to know the development on his application, he was told that his application is incomplete and unless he pays Rs.100/-, no recommendation would be made. As the complainant was not willing to give bribe, a complaint in writing vide exhibit P/3 was submitted before the Deputy Superintendent of Police, Vigilance, Bilaspur. The complaint having been verified by panch witnesses - M.D. Patel (PW5) and Deepak Kumar Shrivastava (PW6), trap was arranged. A currency note of Rs.100/- was smeared with Phenolphthalein. Demonstration of reaction of Sodium Carbonate solution and Phenolphthalein was also made in presence of panch witnesses - M.D. Patel (PW5) and Deepak Kumar Shrivastava (PW6). The details of demonstration, smearing of Phenolphthalein on currency note, handed over to the complainant were reduced in writing by way of memorandum in exhibit P/4. Thereafter, trap was laid in the office of the respondent. According to the case of the prosecution, bribe money was given by the complainant and accepted by the respondent and immediately thereafter, the trap team arrived at the spot, the respondent was caught red handed and Rs. 100/- was recovered from the accused which was seized vide exhibit P/5. The hands of the respondent/accused, complainant and witnesses were washed and hand wash were separately kept and sealed in bottles. Panchanama of trap was also prepared in exhibit P/7. FIR was lodged in exhibit P/16. After usual investigation, sanction for prosecution was obtained vide order dated 29/05/92 (Exhibit P/2) and charge sheet was filed in the Court of Special Judge. The hands of the respondent/accused, complainant and witnesses were washed and hand wash were separately kept and sealed in bottles. Panchanama of trap was also prepared in exhibit P/7. FIR was lodged in exhibit P/16. After usual investigation, sanction for prosecution was obtained vide order dated 29/05/92 (Exhibit P/2) and charge sheet was filed in the Court of Special Judge. On the basis of charge sheet and material contained therein, the learned Trial Court framed charges on 09/10/92 alleging commission of offences under Section 7 - 13 (1) (d) R/w Section 13 (2) of the Prevention of Corruption Act, 1988. The respondent abjured guilt and was put to trial. 4. In order to prove its case, the prosecution examined as many as nine witnesses. In order to support the defence version that the money which was received by the respondent, was towards repayment of loan, as many as three defence witnesses were examined by the respondent. The learned Trial Court, vide impugned judgment, acquitted the respondent holding that the charges are not proved against which present appeal has been filed. 5. Assailing the correctness, legality and validity of impugned judgment of acquittal, learned counsel for the State vehemently argued that even though the prosecution succeeded in proving all the essential ingredients of commission of offence which includes demand, acceptance and recovery, by leading cogent, reliable and unimpeachable evidence, the learned Trial Court acted perversely in accepting the defence version of the accused on conjuncture and surmises, without there being any reliable or trustworthy evidence on record. The learned State counsel further elaborated his submission contending that defence story of repayment of loan is wholly improbable as there is no evidence on record to show that the complainant and the respondent were having acquaintance of such a degree that the accused would advice loan to the complainant. Further submission is that even though the complainant - Jethuram (PW8) has clearly denied the suggestion that the amount was paid to him towards repayment of loan, the learned Trial Court has read some part of evidence of cross examination in isolation and has jumped to the conclusion that the complainant has stated regarding return of loan. It is next urged that mere silence of the complainant and non-contradiction of the explanation of the accused, at the time of raid, by itself, is not sufficient to disbelieve the entire story of the prosecution. It is next urged that mere silence of the complainant and non-contradiction of the explanation of the accused, at the time of raid, by itself, is not sufficient to disbelieve the entire story of the prosecution. According to him, demand of bribe has been verily proved by the prosecution on the strength of complaint in writing (exhibit P/3) and reliable statement of complainant-Jethuram. As far as acceptance is concerned, Jethuram has clearly stated having paid the amount of bribe and at the spot, the amount was recovered from the respondent and phenolphthalein test also turned positive as per the report of the FSL. Therefore, all the ingredients have been proved and acquittal of the respondent on the basis of a weak and improbable defence is palpably wrong and has allowed guilt to go scot-free. He lastly submitted that out of three defence witnesses cited by the prosecution, Jageshwar Meshram (DW1) belongs to the same department and is colleague of the accused and Krishna Kumar Sahu (DW2) is a planted witness. Therefore, no reliance can be placed on the testimony of such witnesses to accept the version of the defence that the amount was received towards repayment of loan. 6. Supporting the judgment of acquittal, learned counsel for the respondent submitted that acquittal of the respondent is based on minute scrutiny of the prosecution evidence by the Trial Court. In his submission, the learned Trial Court has taken into consideration, material and reliable circumstances of the case and having weighed the evidence available on record, has come to the conclusion that the defence of the appellant is probable by applying correct principles of law. The view taken by the learned Trial Court is neither perverse nor arrived at by ignoring applicable and settled principles of law or the reliable evidence available on record. The finding of the Trial Court cannot be said to be suffering from such an illegality so as to say that no such conclusion is possible. Therefore, in his submission, even if two views are possible, this Court may not be inclined to interfere with the judgment of acquittal. In support of his submission, learned counsel also submits that even the complainant's evidence is highly contradictory and there are discrepancies with regard to the date on which he contacted the appellant. The case diary statements and Court statement are contradictory on most material particulars. In support of his submission, learned counsel also submits that even the complainant's evidence is highly contradictory and there are discrepancies with regard to the date on which he contacted the appellant. The case diary statements and Court statement are contradictory on most material particulars. According to the prosecution's own document (Exhibit P/8), the application of the complainant was not even marked to the accused and he had no role to play. The learned Trial Court has taken into consideration the immediate explanation given by the accused, proved by prosecution's own witnesses M.D. Patel (PW5) and Deepak Kumar Shrivastava (PW6) and a very strong circumstance that when the accused offered explanation, the complainant though present; did not rebut or contradict. It is also submitted that Krishna Kumar Sahu (DW2) is not an employee of the Industries department and is an independent witness and according to S.S. Bhaghel (DW3), it is clear that on the date of alleged demand, the accused was not even in the office and he had gone to another station in connection with certain enquiry. Lastly, it is submitted that the version of the defence is only required to be tested on preponderance of probability and the defence is not required to establish its case beyond reasonable doubt. The learned Trial Court has applied correct principles while appreciating the defence version in the light of available evidence on record. Therefore, the acquittal of the respondent does not warrant any interference. 7. Before adverting to the submissions of learned counsel for both the parties, with reference to the available material on record, I deem it appropriate to first deal with the settled legal position with regard to scope of interference in an appeal against acquittal, in the light of the authoritative pronouncement of the Apex Court. 8. Limited scope of interference against judgment of acquittal has been repeatedly highlighted by the Supreme Court in plethora of decisions. 8. Limited scope of interference against judgment of acquittal has been repeatedly highlighted by the Supreme Court in plethora of decisions. In the case of Ghurey Lal vs. State of Uttar Pradesh (2008) 10 SCC 450 , after considering its previous decisions over the years, the Supreme Court held that the appellate Court may only overrule or otherwise disturb the trial Court's acquittal, if it has "Very substantial and compelling reasons" as below:- (i) "The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive." The Supreme Court also held that the appellant Court must always give proper weight and consideration to the findings of the trial Court and most importantly it was observed that if two reasonable views can be reached-one that leads to the acquittal, the other to the conviction the High Courts/appellate Courts must rule in favour of the accused. 9. The aforesaid well settled principles have been reiterated by the Supreme Court in the case of State of Rajasthan Vs. Shera Ram alias Vishnu Dutta (2012) 1 SCC 602 , in following words:- 7. "A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal Jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal. 8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for". In the aforesaid decision, the Supreme Court placed reliance upon its earlier decision in the case of State of Rajasthan Vs. Abdul Mannan (2011) 8 SCC 65 , wherein, the scope of interference by the appellate Court in case of acquittal has been delineated. 10. Therefore, interference against judgment of acquittal is permissible only when there are very substantial and compelling reasons, few of which have been illustrated by the Supreme Court in its judgment in the case of Ghurey Lal (Supra). 11. Though the prosecution came out with a case that Rs.100/- was demanded by the respondent and the respondent received that amount from the complainant towards illegal gratification, the accused came out with a specific defence that a loan of Rs.100/- was given by the respondent/accused to the complainant and it was that amount which was returned to him by the complainant. This specific defence of the respondent was taken into consideration by the learned Trial Court in para 13 and 14 of its judgment. The learned Trial Court has taken into consideration the complainant's own version that he had stated before the officers of Lokayukt that the accused told him that his application is not proper and complete and further that he went to the Food Office, number of times along another villager of his village but he could not get the food permit. The learned Trial Court further took into consideration that two prosecution witnesses (panch witnesses)- M.D. Patel (PW5) and Deepak Kumar Shrivastava (PW6), both have stated in their testimony that the moment, respondent was caught and Rs.100/- was recovered, he readily explained that the same was paid to him towards repayment of loan by the complainant. The learned Trial Court further took into consideration that two prosecution witnesses (panch witnesses)- M.D. Patel (PW5) and Deepak Kumar Shrivastava (PW6), both have stated in their testimony that the moment, respondent was caught and Rs.100/- was recovered, he readily explained that the same was paid to him towards repayment of loan by the complainant. The learned Trial Court has also taken into consideration that Deepak Kumar Shrivastava (PW6) also stated that when the respondent/accused gave immediate explanation as to how he came in possession of Rs.100/- by saying that the same was returned to him by the complainant - Jethuram towards repayment of loan, Jethuram, who was present there, did not contradict or rebut such an explanation and kept silence. The statement of the complainant in para 23 of his cross examination that he returned Rs.100/- to the accused was also noted by the learned Trial Court. 12. In the present case, the accused has examined as many as three-defence witnesses. Jageshwar Meshram (DW1) is Industries Inspector in the office of District Industries Centre, Rajnandgaon and he has very emphatically stated in para 2 of his testimony that an amount of Rs. 1 00/- has been advanced as loan by the accused to the complainant on 8/10/90. Except giving suggestion to that witness, that no such loan was advanced, nothing more could be elicited in the testimony to doubt his version. True it is that he is also working in the same office but considering that he holds the post of Inspector, I am unable to accept the submission of learned State counsel that only on that count his version should be completely disbelieved. As far as Krishna Kumar Sahu (DW2) is concerned, he has deposed in para 1 of his statement that on the date of incident i.e. on 15/10/90, while he was talking to respondent/accused, one person came in and returned Rs.100/- saying that I am returning the amount of loan and thereafter, he left the office. In his cross examination, he has stated that he is not a relative of the accused. There is no reason assigned by the prosecution, much less reflected either from the cross examination or from other attending circumstances to come to the conclusion that Krishna Kumar Sahu (DW2) is a planted witness. In his cross examination, he has stated that he is not a relative of the accused. There is no reason assigned by the prosecution, much less reflected either from the cross examination or from other attending circumstances to come to the conclusion that Krishna Kumar Sahu (DW2) is a planted witness. S.S. Baghel (DW3) is Inspector Industries and has stated by referring to the records of the office that on 12/10/90, the respondent had gone to Bilha in connection with enquiry relating to one M/s Shankar Poha Udyog. He has also stated in para 3 that on 12/10/90, the respondent did not come in the office. He has verified the report (Exhibit D/2). 13. The prosecution has placed on record, communication (Exhibit P/8) dated 19/12/90 in which, the General Manager, District Industries Centre, Bilaspur has stated that the application of the complainant submitted on 03/09/90 was forwarded for further action to the Block Development Officer, Bilha vide letter dated 10/09/90 and the application of the complainant - Jethuram was not forwarded to the respondent/accused. 14. Though the complainant - Jethuram (PW8) in his testimony has stated that Rs.100/- was given by him to the respondent/accused by way of bribe, in para 23 in his cross examination, he has said regarding return of the amount. The word "waapas" has been used. There is one more aspect of the matter which is worth consideration and has been noted by the learned Trial Court. The two panch witnesses i.e. M.D. Patel (PW5) and Deepak Kumar Shrivastava (PW6), both have stated that when the trap authority arrived and Rs.100/- was recovered from the respondent/accused and he was asked as to how he came in possession of the same, an immediate explanation was offered by the respondent/accused that the amount was paid to him by the complainant towards repayment of loan of Rs.100/-. Moreover: Deepak Kumar Shrivastava (PW6) has stated that when the accused offered this explanation to the trap authority, the complainant who was very much present, kept silent and did not contradict. 15. The view taken by the learned Trial Court in the light of aforesaid material evidence, circumstances, explanation and defence version, cannot be said to be wholly improbable or unacceptable. 15. The view taken by the learned Trial Court in the light of aforesaid material evidence, circumstances, explanation and defence version, cannot be said to be wholly improbable or unacceptable. It has to be borne in mind that though the burden of the prosecution is heavy upon it to prove guilt of accused beyond reasonable doubt, while testing the veracity of the defence of the accused, same degree of proof is not required. Probability and possibility of defence and explanation of the accused is not required to be tested by applying beyond reasonable doubt criteria but on preponderance of probabilities. 16. In the case of Aher Raja Khima Vs. State of Saurashtra AIR 1956 SC 217 , it has been held that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false. In the case of bribery, if the prosecution proves acceptance of amount by the accused and the amount does not represent the legal remuneration in any form, the presumption at once arises. However, the accused may discharge the onus through preponderance of probability, as held by the Supreme Court in the case of Mahesh Prasad Gupta Vs. State of Rajasthan AIR 1974 SC 773 and Trilok Chand Jain Vs. State of Delhi 1979 SC 666. The principles of law regarding appreciation of evidence in bribery and trap cases, generally speaking, have been held to be as below- "(a) that the burden of proving the prosecution case, generally lies on the prosecution even in case of trap or bribery, this burden is not shifted by Section 4 of the prevention of Corruption Act; (b) that Section 4 has got limited application only for raising of presumption regarding the motive of the taking of money provided it is proved that the money was obtained or accepted by the accused; (c) that even in raising the presumption under Section 4, the act of acceptance or obtaining must be willful, voluntary and with conscious mind; (d) that even where such a presumption is drawn, the accused can rebut it by showing there is a plausible explanation and the basis of preponderance of probability of other theory; (e) the accused is not required to rebut this presumption by leading evidence beyond reasonable doubt. But all that is required to show is to establish preponderance of probability in his favour; (f) that the witnesses of trap are not to be discharged as accomplices but in a given case the Court can insist on independent corroboration for believing their testimony. Thus, for example, in the case of Pannalal Damoder Rathi Vs. State of Maharashtra, AIR 1979 SC 1191 , their Lordships of the Supreme Court have observed that there could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Indian Penal Code making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon." 17. In the case of Punjabrao Vs. State of Maharashtra AIR 2002 SC 486 , it has been accepted to be a well settled legal proposition by the Supreme Court that where the accused offers explanation for receipt of an alleged amount, he is not required to establish his defence by proving beyond reasonable doubt but may establish the same by preponderance of probability. In yet another decision in the case of T. Subramaniam Vs. The State of Tamil Nadu 2006(1) Crimes 75, it was held that if the reason for receiving the amount was explained and the explanation was probable and reasonable, then the accused has to be acquitted. 18. Thus, the appreciation of evidence on record by the Trial Court does not appear to be based on the incorrect principles of law. The preponderance of probability theory has been applied by the learned Trial Court while appreciating the defence version of the accused that the amount was received by him towards repayment of loan. The available oral and documentary evidence and the circumstances which have been discussed by this Court hereinabove makes defence version probable and cannot be wholly ruled out. Therefore, in the opinion of this Court, the view taken by the learned Trial Court appears to be a plausible view. The available oral and documentary evidence and the circumstances which have been discussed by this Court hereinabove makes defence version probable and cannot be wholly ruled out. Therefore, in the opinion of this Court, the view taken by the learned Trial Court appears to be a plausible view. Even though submission of learned State counsel is accepted that may be another plausible view on the basis of the evidence and material available on record led by the prosecution, that cannot be made a ground to interfere with the judgment of acquittal in the light of authoritative pronouncement of the Supreme Court in various decisions referred to and discussed hereinabove. 19. In the result, I am not inclined to interfere with the judgment of acquittal passed by the learned Trial Court. The appeal, therefore, fails and is accordingly dismissed. Appeal Dismissed.