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2012 DIGILAW 277 (CHH)

HAR PRASAD MARAVI v. STATE OF M. P.

2012-10-19

MANINDRA MOHAN SHRIVASTAVA

body2012
JUDGMENT 1. This appeal is directed against the judgment of conviction and order of sentence dated 11th September, 1997 passed by learned 1st Additional Sessions Judge & Special Judge, Bilaspur, in Special Criminal Case No.8/94, whereby and whereunder the appellant is held guilty of commission of offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short "the Act of 1988") and sentenced to undergo S.I. for 6 months and fine of Rs.500/- under Section 7 of the Act of 1988 and S.I. for 1 year and fine of Rs.500/- under Section 13(1)(d) read with Section 13(2) of the Act of 1988. In default of payment of fine on both count, additional S.I. for 3 months. 2. Briefly stated, case of the prosecution is that while the appellant was posted and working as Dy. Ranger at Jatga Forest Range, he carried out search in the house of complainant -Babulal and recovered certain logwood and on the threat of registering a forest offence case against the complainant and number of other villagers, demanded Rs.400/- from each of the complainant and other residents of the village. In response to demand, the complainant expressed to give Rs.200/- and he was called by the appellant on 3.11.1992 with bribe money. As the complainant was not willing to give bribe, report in Ex.P-1 was lodged in the Vigilance Office at Bilaspur on 2.11.1992. Pre-trap proceedings were drawn under which demonstration of reaction of sodium carbonate with phynolpthelein powder was given in the presence of complainant and panch witnesses, phynolpthelein powder was smeared on two currency notes each of Rs. 100/-. It was given to complainant-Babulal for being handed over to the appellant. The number of currency notes were noted. A panchnama of pre-trap proceedings was prepared in Ex.P-2. Further case of the prosecution is that thereafter the trap party along with the complainant went to the house/office of the appellant and it is alleged that the complainant gave bribe money as demand by the appellant, which was accepted and soon thereafter trap party arrived in the house and on the memorandum (Ex.P-4) of co-accused Chhedilal, the currency notes were recovered from the platform of the house of the appellant vide seizure memo of Ex.P-5. Hands of the complainant and other witnesses were washed, which were collected and sealed in bottles. Currency notes were also seized. Hands of the complainant and other witnesses were washed, which were collected and sealed in bottles. Currency notes were also seized. Papers relating to preparation of forest offence were seized vide Ex.P-6 from Chhedilal, the Beatguard. Other relevant documents relating to preparation of forest offence were also seized vide Ex.P-7 from the appellant. Trap panchnama in Ex.P-8 was prepared. After completion of trap proceedings, FIR in Ex.P-21 was registered. The sealed bottles, containing hand wash, wash of the currency notes were sent for chemical examination to Forensic Science Laboratory vide Ex.P-24, in response to which, FSL report in Ex.P-25 was received. After obtaining sanction for prosecution vide order dated 25.2.1994 (Ex.P-26) and after completion of usual investigation, charge sheet was filed against the appellant and co-accused-Chhedilal. On the basis of charge sheet, learned Court below framed charges against the appellant and other accused namely Chhedilal on 15.12.1994 alleging commission of offence under Section 7 and Section 13(1) (d) read with Section 13 (2) of the Act of 1988. Appellant and other accused abjured guilt. They were subjected to trial. In order to prove its case; prosecution examined as many as 12 witnesses. Appellant and co-accused were examined under Section 313 of the Cr.P.C. in respect of incriminating evidence and circumstances appearing against them. The appellant denied having committed offence. 3. Vide impugned judgment of conviction and order of sentence, though learned Court below acquitted other co-accused-Chhedilal, the appellant was found guilty of commission of offence and sentenced as described above, against which, this appeal has been preferred. 4. Assailing the correctness and validity of the judgment of conviction and order of sentence, the main thrust of submission of learned counsel for the appellant is that the entire case of the prosecution has been completely demolished by the evidence of complainant -Babulal (P.W.1), who has very emphatically deposed before the Court that no demand was raised by the appellant and the search was also carried out by some other forest officer. According to learned counsel for the appellant, complainant -Babulal having not stated anything against the appellant, the entire case of the prosecution regarding demand becomes highly doubtful. According to learned counsel for the appellant, complainant -Babulal having not stated anything against the appellant, the entire case of the prosecution regarding demand becomes highly doubtful. Further submission is that the currency notes were not recovered from the possession of the appellant, but the evidence shows that the trap party claims to have recovered the currency notes from some corner of the house of the appellant, which itself throws serious doubt on the case of the prosecution. He further submits that the claim of the prosecution witness- C. Kerketta (P.W.2) that he. was accompanying the complainant and in his presence, tainted money was given and accepted by the appellant and then handed over to co-accused Chhedilal is not reliable, because according to Rambahadur (P.W. 8), it is the complainant only, who had gone inside the house of the appellant. Further submission is that in the absence of acceptance of currency notes by the appellant and without proof of any demand, so called recovery of currency notes from the house of the appellant is inconsequential. 5. On the other hand, learned counsel for the State has supported the judgment passed by the Court below. He submitted that specific complaint in Ex.P-1 was lodged by complainant and the complainant has admitted having signed the complaint. He further submits that even though the complainant has not supported the case of prosecution, the panch witnesses have clearly deposed that complainant had come in the Vigilance Office and stated that bribe was demanded by the appellant. The evidence of C. Kerketta (P.W.2), who is a panch witness proves the demand and acceptance of bribe by the appellant. Therefore, there is cogent evidence to prove that the appellant demanded and accepted bribe. Learned counsel for the State further argued that the recovery of the currency notes has been proved by overwhelming evidence on the basis of memorandum given by Chhedilal, in which, he has stated that currency notes were kept inside the house of the appellant and from there, it has been recovered. The acceptance of currency notes is also corroborated from strong evidence of chemical report which shows that the hand wash of the appellant contains traces of phynolpthelein. Therefore, the appellant handled the currency notes and accepted the bribe. The acceptance of currency notes is also corroborated from strong evidence of chemical report which shows that the hand wash of the appellant contains traces of phynolpthelein. Therefore, the appellant handled the currency notes and accepted the bribe. Therefore, presumption under Section 20 of the act of 1988 liable to be drawn that the money was accepted as illegal gratification and in the absence of any explanation whatsoever by the appellant, the acceptance of bribe is fully proved. Therefore, the judgment of conviction and sentence does not warrant any interference. 6. I have considered the rival submissions made by learned counsel for the parties and perused the records. 7. In C.K. Damodaran Nair Vs. Govt. of Indian, (1997) 9 SCC 477 the Supreme Court had an occasion to consider the word "obtained" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 [now Section 13(1)(d) of the Act, 1988], and it was held: (SCC p. 483, para 12) 12. "The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Sections 5(1)(a) and (b)—and not under Sections 5(1)(c), (d) or (e) of the Act. 'Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either 'acceptance' or 'obtainment'." The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established" 8. In its subsequent decision in the case of A. Subair Vs. State of Kerala, (2009) 6 SCC 587 , the Supreme Court examined essential ingredients of Section 7 and Section 13(1)(d) of the Act, as under : 13. "The essential ingredients of Section 7 are: (i) that the person accepting the gratification should be a public servant; (ii) that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person. 14. Insofar as Section 13(1)(d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person." Therefore, the settled legal position and which is no longer res integra is that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established. The aforesaid well settled legal position has been reiterated in plethora of decisions. Therefore, one of the essential ingredients to prove the offence alleged is demand of bribe by the public servant. 9. Keeping in mind the aforesaid well settled legal position with regard to ingredients of commission of offence alleged, I would proceed to examine the evidence on record to find out whether the prosecution has been able to prove demand beyond reasonable doubt. 10. 9. Keeping in mind the aforesaid well settled legal position with regard to ingredients of commission of offence alleged, I would proceed to examine the evidence on record to find out whether the prosecution has been able to prove demand beyond reasonable doubt. 10. Perusal of the complaint (Ex.P-1) shows that the allegation written in the complaint is that the appellant along with staff had searched the house of the complainant and logwood were recovered, alleging it to be a case of theft of forest produce and demand of Rs.400/- was made not only from the complainant, but from other villagers namely- Devdayal Sahu, Tejiram Sahu and Sahasram Sahu. Further allegation is that from each of them Rs.400/- was demanded as bribe, in response to which, the complainant stated that each of the villagers, including complainant, are prepared to pay Rs.200/- per head and the appellant called the complainant for giving bribe money on 3.11.1992. But, this story, written in the complaint, is not at all supported by the complainant-Babulal (P.W.1) in his evidence. If we look to the evidence of Babulal (P.W. 1), entire case of the prosecution that house of the complainant-Babulal and other villagers were searched by the appellant and bribe of Rs.400/- was demanded from the appellant and other villagers, is completely demolished. Complainant-Babulal (P.W. 1) has very categorically stated in para-l of his evidence that Dy. Ranger Pandey had carried out search in the house and 18 pieces of logwood were recovered from his house, stating that he will have to pay fine of Rs. 200/-, on which, complainant prepared to give Rs.200/- on Tuesday. Thereafter, he had gone to Vigilance Office with one Mangaldas. Mangaldal stated that he would not allow him to give the amount of fine and he would get back seized timber. Thereafter, complaint was prepared by Mangaldas. Perusal of the complaint (Ex.P-1) shows that the same was prepared by Mangaldas. In para-2 of his evidence, complainant -Babulal has further deposed that he is illiterate and can only put his signature. Though, initially, he deposes that after preparation of application, same was read over and then he put his signature, in the same breath, he retracts and deposes that Mangaldas did not read over complaint to him before submitting it in the Vigilance Office. Though, initially, he deposes that after preparation of application, same was read over and then he put his signature, in the same breath, he retracts and deposes that Mangaldas did not read over complaint to him before submitting it in the Vigilance Office. He further makes it clear by categorically stating in his evidence that he had made complaint against Dy. Ranger- Pandey and no complaint was made against the appellant in the Vigilance Office. In para-4 of his evidence, he has again reiterated that Dy. Ranger-Pandey had come to village and carried out search. He has further deposed that after proceedings, he asked Mangaldas as to how Harprasad, the appellant, was involved, whereas he had asked him to seek action against Dy. Ranger-Pandey. Not only this, he has further deposed that had Mangaldas read over the contents of complaint (Ex. P-1) before submitting it in the Vigilance Office, the complainant would have neither signed it nor requested for any action against the appellant. He has denied suggestion that complaint (Ex.P-1) was read over to him in the Vigilance Office and thereafter he had singed it. He further deposes in para-5 of his testimony that two officers in the Vigilance Office who inquired, did not ask him as to whether the complainant intends action to be taken against the appellant. 11. Further dent is caused to the story of the prosecution by what has been deposed by the complainant in para-7 of his evidence, in which, he has stated that he asked the officer of the Vigilance as to who should be given bribe money and the officer told him he may offer money to whomsoever he wants. Thereafter, he kept the currency notes on the table of the appellant and then gave signal. He has stated that contents of complaint (Ex.P-1) were read over to him after completion of proceedings at Jatga. It is also stated that when his hands were washed at Jatga, the colour of the chemical solution did not change. Thereafter, he kept the currency notes on the table of the appellant and then gave signal. He has stated that contents of complaint (Ex.P-1) were read over to him after completion of proceedings at Jatga. It is also stated that when his hands were washed at Jatga, the colour of the chemical solution did not change. He has also stated in para-8 of his evidence that after vigilance proceedings was over, then Mangaldas told him that in complaint (Ex.P-1), complaint was made against the appellant and even at the time when proceedings were being carried out by vigilance officials, he was not knowing that the proceedings were being drawn against the appellant and it was only when he was informed by Mangaldas, that he came to know that the vigilance officials have initiated action against the appellant. In para-9, he has completely denied having given statement in Ex.P-3.He has specifically denied suggestion that he handed over bribe money in the hands of the appellant and has further denied that appellant thereafter transferred the same in the hand of Dixit, Beatguard. He has clearly deposed that he kept money on the table. In para-11 of his testimony, he has again reiterated that he had asked Mangaldas to submit compliant against Dy. Ranger- Pandey. 12. The evidence of complainant, as deposed by him in para-13 of his cross-examination, suggests reason why Mangaldas falsely implicated the appellant. It has been deposed by Babulal that appellant had seized timber from the possession of Mangalds and also imposed fine, and therefore, there was animosity between the appellant and Mangaldas. He has categorically deposed that no bribe was demanded by the appellant nor any seizure was made. Not only this, he has further stated that when he went to Dy. Range Office at Jatga along with trap party and when Dy. Ranger-Pandey was not found, then vigilance official stated that they would not go back empty handed and to somehow make a case, complainant Babulal was compelled by the vigilance officials to handover tainted money to appellant which he was not willing to give, but, because of compulsion he had to leave the money on the table of the appellant. Thereafter, what .happened, he does not know. 13. The aforesaid evidence of complainant renders entire story of the prosecution as against the appellant extremely doubtful. Thereafter, what .happened, he does not know. 13. The aforesaid evidence of complainant renders entire story of the prosecution as against the appellant extremely doubtful. The possibility of false implication of the appellant cannot be ruled out. The submission of learned counsel for the State that as C. Kerketta (P.W.2), who is panch witness, has fully supported the case of the prosecution with regard to acceptance of bribe by the appellant, therefore, the story of demand and acceptance deserves to be believed, cannot be accepted. Where the complainant himself has not supported the story of prosecution, the evidence of panch witness with regard to acceptance, cannot be relied upon to prove demand of bribe. The evidence of C. Kerketta (P.W.2) that in his presence, complainant handed over bribe money to the appellant cannot be said to be worthy of credence, because on this issue, the complainant has not supported the story of prosecution, but his evidence is entirely different. Therefore, in a case where the complainant himself does not make any allegation of demand against the appellant, nor says that he handed over tainted currency money to the appellant, nor he says that the appellant accepted the tainted money, only on the basis of panch witnesses, it cannot be said that that the prosecution has succeeded in proving its case beyond reasonable doubt. Moreover, the story that panch witness- C. Kerketta (P.W.2) was present at the time when currency notes were handed over to the appellant, becomes doubtful because according to version of Rambahadur (P.W.8), it is the complainant who alone had gone to the house of the appellant. C. Kerketta (P.W.2) has been given specific suggestion in para-17 of his cross-examination that in the village- Jatga, Dy. Ranger-Pandey was not found in the office and that various documents were prepared. 14. Out of three persons named in complaint (Ex.P-1), two persons namely- Tejilal and Devdayal have also been examined as P.W.4 & P.W.5. One more villager namely Umashanker Jaiswal has also been examined as one of the prosecution witnesses. Tejilal (P.W.4) has categorically stated that one Pandey of Forest Department had come to his house and made inquiry with regard to theft of forest produce, upon which, logwoods were removed and taken by Pandey and Pandey had stated that a fine of Rs.400/- will have to be deposited by him. Tejilal (P.W.4) has categorically stated that one Pandey of Forest Department had come to his house and made inquiry with regard to theft of forest produce, upon which, logwoods were removed and taken by Pandey and Pandey had stated that a fine of Rs.400/- will have to be deposited by him. He further deposed that on the next date, he went to range office Jatga, where he met Pandey and stated that he could only give Rs.200/-, upon which, Pandey agreed. In para-3 of his evidence, he has categorically stated that there was neither any conversation with the appellant nor any demand was made by the appellant. In para-4, he has denied having given statement involving and implicating the appellant. In para-5 of his cross-examination, he states that he was informed by complainant- Babulal that Babulal had submitted an application for action to be taken against Pandey, Dy. Ranger. 15. Devdayal (P.W.5) also deposed that the appellant never came to his house nor seized any timber nor raised any demand of bribe. He states that he did not give any statement to the police, whereafter, he has been declared hostile. Umashanker Jaiswal (P.W.6) states that he does not know the appellant nor any article was seized by forest officials. In para-3 of his cross-examination, he reiterates that the appellant never came to his house nor seized any article. He deposed that Ranger of Forest Range- Semra had come to his house and that his signatures were obtained on papers by Pandey, Ranger of Forest Range-Semra. Thus, the story of prosecution becomes highly doubtful. 16. Learned counsel for the State also laid considerable emphasis on the FSL report to buttress his submission that the recovery of tainted money from the house of the appellant and positive test of phynolpthelein prove that the appellant had handled the currency notes and it completes the chain of demand, acceptance and recovery to prove offence alleged against the appellant. To say the least, the manner in which the case has been prepared against the appellant and what has been deposed by the complainant himself and other witnesses, particularly Tejilal (P.W.4), Devdayal (P.W.5) and Umashanker Jaiswal (P.W.6), no value can be attached to the recovery of currency notes. 17. To say the least, the manner in which the case has been prepared against the appellant and what has been deposed by the complainant himself and other witnesses, particularly Tejilal (P.W.4), Devdayal (P.W.5) and Umashanker Jaiswal (P.W.6), no value can be attached to the recovery of currency notes. 17. It has come in the evidence and could not be denied by learned counsel for the State that though two currency notes are stated to have been given to the complainant for the purpose of trap of the appellant, out of two tainted currency notes alleged to have been recovered, number of one currency note does tally with the number noted in the pre-trap panchnama. It also throws doubt on the story of the prosecution. The submission of learned counsel for the State that as there is evidence that the appellant accepted the bribe from the complainant, statutory presumption under Section 20 of the Act of 1988 is also attracted that the money was accepted as illegal gratification, cannot be accepted. 18. In the case of V. Venkata Subbarao Vs. State represented by Inspector of police, A.P., (2006) 13 SCC 305, it has been held that in order to prove the charges under Section 7, 13(1)(d) of the Prevention of Corruption Act, it is obligatory on the part of the prosecution to prove that the accused made any demand of bribe and the statutory presumption under Section 20 of the Prevention of Corruption Act that the accused has accepted the money towards bribe cannot be accepted unless and until it is proved that there was some motive or reward for which the demand of bribe was made and the demand of bribe is proved. In the case of T. Subramanian Vs. State of T.N., (2006) 1 SCC 401 , it has been held that mere proof of receipt of money by the accused in absence of proof of demand and acceptance of money as illegal gratification would not be sufficient to establish the guilt of the accused. In the case of Sita Ram Vs. In the case of T. Subramanian Vs. State of T.N., (2006) 1 SCC 401 , it has been held that mere proof of receipt of money by the accused in absence of proof of demand and acceptance of money as illegal gratification would not be sufficient to establish the guilt of the accused. In the case of Sita Ram Vs. State of Rajasthan, (1975)2 SCC 227 , the Supreme Court held that when story of demand of bribe by the accused appellant from the complainant was not proved and even story of demand of money by the complainant was not established beyond reasonable doubt, the rule of presumption that the money was accepted as bribe could not be resorted in order to convict the accused. In the case of Suraj Mal Vs. State (Delhi Administration), AIR 1979 SC 1408 it has been held that in case of bribery, mere recovery of money divorced from the circumstances under which it is paid, it would not be sufficient to convict the accused when the substantive evidence in the case, is not reliable. In Jagdish Chandra Makhija Vs. State of Madhya Pradesh, 1990 MPLJ 239 , it has been held that in a trap case when initial part of the story of demand and offer is found to be untrustworthy, testimony of the complainant cannot be accepted. 19. In the case of A. Subair (supra), it has been held that : "The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing of pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established." "Mere recovery of currency notes (Rs.20/- and Rs.5/-) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence." 20. View taken in the case of Suraj Mal (supra), was reiterated in the case of C.M. Girish Babu Vs. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence." 20. View taken in the case of Suraj Mal (supra), was reiterated in the case of C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 , holding 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 reliable evidence to prove demand of bribe or to show that the accused voluntarily accepted the money. 21. In the result, impugned judgment of conviction and order of sentence is not sustainable in law. The same is therefore set aside. The appellant is acquitted of the charges. As the appellant is already on bail, he need not surrender. Bail bonds stands discharged. 22. The appeal is accordingly allowed. Appeal Allowed.