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2013 DIGILAW 1917 (RAJ)

State of Rajasthan v. Om Kumar Sharma

2013-10-31

SANDEEP MEHTA

body2013
JUDGMENT Hon'ble MEHTA, J.—The instant appeal has been preferred by the State of Rajasthan against the judgment dated 24.4.2000 passed by the learned Special Judge, (Prevention of Corruption Act Cases), Udaipur in Cr. Case No.106/1997 (2/1992), whereby the respondent was acquitted of the charges under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. 2. The facts in brief are stated below. Shri Chandmal the complainant PW-1 was working as an LDC in the State Government's Sheep and Wool Department. The payment of his salary arrears was pending with in the department from the year 1984-91. As per the complainant, he was being made to run from pillar to post for releasing the salary arrears. He had approached the Dy. Director, Sheep and Wool Department, Shahpura, Regional Dy. Director, Sheep and Wool Department, Jaipur, Director, Sheep and Wool Department, personally on numerous occasions and had also submitted written representations to all these officers frequently. The officers in concern directed the Dy. Director, Sheep and Wool Department, Shahpura through official communications to release the payment but to no avail. The complainant finally met the Dy. Director, Sheep and Wool Department, Shahpura and the department clerk, Om Kumar Sharma, respondent herein, on 21.3.1991. Om Kumar replied that the complainant's work could not be carried out until the unless he paid a bribe of Rs. 1000/- to the departmental officials. The complainant tried to bargain citing his poor condition on which the clerk agreed to do the work for a sum of Rs. 500/-. It was finally communicated to the complainant that unless and until the amount of Rs.500/- was paid, his bills would not be passed. 3. The complainant allegedly prepared his salary due statement and handed the same over to the clerk in presence of the Dy. Director. He approached the clerk lastly on 13.4.1991 and requested him for releasing the payment on which he was told that he should come to the office with the bribe amount of Rs.500/- on Monday or Tuesday and his work would be done. The complainant prepared and submitted the report with these allegations to the Inspector of Police, Anti Corruption Bureau, Bhilwara and stated hat he was not desirous of paying the bribe and want to have the respondent trapped red handed. The Inspector of A.C.B. initiated the trap proceedings. The complainant prepared and submitted the report with these allegations to the Inspector of Police, Anti Corruption Bureau, Bhilwara and stated hat he was not desirous of paying the bribe and want to have the respondent trapped red handed. The Inspector of A.C.B. initiated the trap proceedings. Two independent witnesses Jagdish Prasad Joshi and Shiv Ram Meena were summoned to be the shadow witnesses of the trap proceedings. The complainant presented five notes of Rs.100/- each to the Inspector of Police. The pre-trap proceedings were rehearsed and the notes after being initialed by the Inspector, were laced with phenolphthalein powder and were handed over back to the complainant and the Inspector instructed the complainant that he should pass over the same to the accused upon his demand. He was instructed to give a signal by brushing his hand on the head after paying the bribe. the trap partly headed by the Inspector along with the shadow witnesses and the decoy reached the office of the accused. The decoy was sent to the office and the other members of the trap party took their respective positions concealing themselves around the office. The complainant returned back after a while and told that the accused refused to accept the bribe saying that he did not think it proper to take the bribe during office hours and in the office premises. The accused called the complainant to his home at about 5 O'clock in the evening with the bribe amount. The shadow witness Shiv Ram Meena told that Om Kumar was ready to accept the bribe but as the witness was accompanying he complainant, the accused hesitated to accept the bribe probably due to his presence. On this, the complainant alone was sent back to the office but the accused allegedly became apprehensive due to the presence of the person, who had accompanied the complainant earlier and insisted that the bribe be paid at his home. On this, the complainant was sent to the accused's home. The trap party reacted and took positions outside the house of the accused and started waiting for the complainant's signal. A little later, a person came on a spark moped and entered into the house. The complainant followed him inside. After a while, the complainant came out of the house and gave the pre-arranged signal. The trap party reacted and took positions outside the house of the accused and started waiting for the complainant's signal. A little later, a person came on a spark moped and entered into the house. The complainant followed him inside. After a while, the complainant came out of the house and gave the pre-arranged signal. The Inspector along with the other members of the trap party entered into the house, where an aged man wearing shirt and trousers and a young man wearing a lungi and a vest were found present in the gallery of the house. The Inspector introduced himself to both the men. The young man wearing lungi disclosed his name to be Om Kumar Sharma LDC posted in the office of Dy. Director, Sheep and Wool Department, Shahpura and the other person introduced himself to be Om Kumar's father. On being enquired about the bribe, Om Kumar stated that the complainant came to his room on the first floor of the house and tried to pick up a conversion about his salary arrears. he told the complainant that he was not desirous of talking about the official work at his home and asked the complainant to come to the office and meet him. Thereafter, he came to the ground floor for attending the call of nature. The complainant perused him and might have planted some amount in the house without his knowledge. The complainant retorted that he did not go to the first floor of the house at all. he and the accused had sat down in a room on the ground floor and there the bribe amount of Rs. 500/- was passed on to Om Kumar for preparing complainant's arrear bills. Om Kumar counted the notes and assured the complainant that his bills would be prepared by 25.4.1991 and he would be informed at Kotadi. 4. The explanation submitted was not palpable and therefore, his hands were caught hold of. On being washed in solution of sodium carbonate, the colour of the wash taken from the accused's hands turned pink. It was packed and sealed into bottles. Nothing was recovered on personal search of the accused being taken. The accused was again asked about the bribe amount due he feigned ignorance. On being washed in solution of sodium carbonate, the colour of the wash taken from the accused's hands turned pink. It was packed and sealed into bottles. Nothing was recovered on personal search of the accused being taken. The accused was again asked about the bribe amount due he feigned ignorance. The house was searched and from a wooden almirah fixed in the wall of a room at the ground floor, five currency notes of Rs.100/- denomination were recovered from underneath of book. The notes having the same numbers as those submitted by he complainant and bore the initials of the inspector were seized and sealed. The relevant record was also seized. The wash bottles were forwarded to the FSL Jaipur for examination from where, a positive report was received. Sanction for prosecuting the accused was sought and accorded. 5. Thereafter, a charge-sheet was laid against the accused in the Court of the Special Judge, Anti Corruption Act Cases, Udaipur. 6. The learned Special Judge framed charges against the accused for the offences under Sections 7, 13(1)(d) and (2) of the Prevention of Corruption Act. The accused denied the charge and claimed trial. The prosecution examined as many as 13 witnesses in support of its case. The accused in his statement under Section 313 Cr.P.C. and denied the prosecution allegations and claimed that the complainant got him trapped fraudulently. He never demanded any bribe from the complainant nor did he call him to his house for taking bribe. He further submitted that during the day time, the complainant tried to forcibly pay the bribe to him on two occasions but he repelled the attempts and pushed the notes away at that time, he might have come in contact with phenolphthalein powder applied to the notes. He further submitted that the tainted currency notes had been planted by Chandmal in he open almirah of his house without his knowledge. He further submitted that he had already prepared the salary bills of the complainant but the Dy. Director, Sheep and Wool Department, Shahpura Mr. K.K. Agarwal did not issue the regularization order and did not forward the bills. He further submitted that the complainant was prosecuted and convicted under the Prevention of Corruption Act and had been terminated from service. Rajesh Singh was examined as defence witness by the accused. 7. Director, Sheep and Wool Department, Shahpura Mr. K.K. Agarwal did not issue the regularization order and did not forward the bills. He further submitted that the complainant was prosecuted and convicted under the Prevention of Corruption Act and had been terminated from service. Rajesh Singh was examined as defence witness by the accused. 7. The learned trial Judge at the conclusion of the trial by the impugned judgment proceeded to acquit the respondent of the charge. The State of Rajasthan has now approached this Court by way of the instant appeal challenging the respondent's acquittal. 8. Ms. Rajlaxmi the learned Public Prosecutor vehemently contended that the prosecution has proved by ample evidence that the accused demanded and accepted bribe from the complainant. She submitted that the complainant supported the prosecution story to the hilt whilst deposing at the trial. She urged that the tainted currency notes in question were recovered from an almirah in the house of a the accused. The wash taken from his hands tested positive for phenolphthalein and sodium carbonate. As such, the burden of proof shifted on to the accused to show as to how the notes came to be placed in the almirah in his house. She further submitted that the two shadow witnesses corroborated the fact that when the complainant went to meet the accused in his office, the accused straightaway asked as to whether the amount had been brought or not. Thereafter, the accused became apprehensive because of the presence of the witnesses and thus, he refused to take the bribe in the office. Later on, the complainant was instructed to come to the residence and pay the bribe and there, the bribe was accepted by the accused. Learned Public Prosecutor submitted that these aspects of the prosecution story are well and truly proved by the complainant Chandmal and the shadow witnesses Shiv Ram Meena and Jagdish Prasad Joshi and thus, the learned trial Judge committed illegality and perversity in acquitting the respondent of the charge. Thus, she urged that the acquittal of the respondent as recorded by the learned trial Judge by the impugned judgment deserves to be set aside and the respondent be convicted and sentenced appropriately for the offences under the Prevention of Corruption Act. 9. Thus, she urged that the acquittal of the respondent as recorded by the learned trial Judge by the impugned judgment deserves to be set aside and the respondent be convicted and sentenced appropriately for the offences under the Prevention of Corruption Act. 9. Per contra Shri Sunil Joshi learned counsel appearing for the respondent Om Kumar on behalf of Shri R.S. Saluja urged that the complainant is a habitual litigant. He himself was trapped and convicted in a bribery case. He was unjustified by hounding the departmental officials to release his arrears. The accused prepared the arrear bills and the matter was pending for the signatures of the Dy. Director. Apprehending that his arrears would into be cleared, the complainant fraudulently got the respondent entrapped in a false case of bribe. Learned counsel submitted that the learned trial Judge has given cogent reasons for discarding the prosecution case and as such, no interference is called for in the respondent's acquittal as recorded by the learned trial Judge. 10. Heard and considered the arguments advanced at the bar. Perused the judgment impugned and the record. 11. As the matter is being considered in an appeal against the acquittal, the standards of appreciation are required to be different when the matter is being examined in an appeal against conviction. If two views are possible then, normally no interference should be made in a judgment of acquittal. For this purpose, a brief reappreciation of the evidence is called for. PW-1 Chandmal the decoy complainant alleged that the accused demanded a sum of Rs. 1000/- for preparing his arrear bills. Ultimately on bargaining the bribe amount was scaled down to Rs.500/-. As soon as the complainant submitted the complaint to the Inspector of Police, Anti Corruption Bureau, he summoned the shadow witnesses and thereafter, initiated the trap proceedings. As per the complainant, he was sent to the office and the shadow witness Shiv Ram Meena accompanied him at that time. The learned trial Judge has noted the deposition made by the complainant regarding the conversion, which took place between him and the accused at the page No. 7 of the judgment. As per the complainant, he was sent to the office and the shadow witness Shiv Ram Meena accompanied him at that time. The learned trial Judge has noted the deposition made by the complainant regarding the conversion, which took place between him and the accused at the page No. 7 of the judgment. The same is reproduced hereinbelow: ^^'kkgiqjk igaqp dj ou foHkkx ds Hkou esa x;s ogka tkdj lh-vkbZ-lk- us eq>s eh.kkth ds lkFk dj fn;k vkSj vfHk;qä ds ikl tkus dk funsZ'k fn;kA vU; O;fä izfØ;k ds vuqlkj vyx vyx esjs ihNs vk x;sA eSa Åu foHkkx esa vfHk;qä ds dk;kZy; esa x;k vkSj tkdj cSB x;k vkSj eSaus vius dke ds fy;s dgk fd esjs dke dk d;k gqvk rks vfHk;qä us dgk fd eSaus vkidks ,d dke crk;k Fkk ml ckcr~ D;k gqvkA eSaus dgk fd eSa mlds fy;s rS;kj gwW rks mlus dgk fd og dke ;gka FkksM+h gksxk ?kj vkukA fQj ge ogka ls mB dj pys x;sA** 12. From a bare perusal of the testimony of the complainant in this regard, it is apparent that he has not stated in distinct words that the accused demanded a sum of Rs. 500/- from him in presence of Shiv Ram Meena. The complainant thereafter deposed that he told the C.I. that the accused apprehensive in accepting the bribe in the office on which the trap proceedings were shifted to the residence of the accused. Contrary to this version and as per the Seizure Officer, Rajyavardhan Singh PW-13 and the shadow witnesses PW-2 Shiv Ram Meena and PW-3 Jagdish Prasad Joshi, after the initial refusal of the accused to accept the bribe in presence of Shiv Ram Meena at the office, the complainant was again sent alone to the office of the accused he refused to accept the bribe on the second occasion also. The complainant has conveniently omitted to mention the factum of the second attempt to pass on the bribe on the accused. The complainant further alleged in his testimony that he went to the house of the accused. they sat in a room and then on the demand made by he accused, the amount of Rs. 500/- was handed over to the accused. Thereafter, the complainant came out and gave the pre-arranged signal. The complainant in cross-examination admitted that he had visited the house of the accused prior to 13.4.1991 on 4-5 occasions. they sat in a room and then on the demand made by he accused, the amount of Rs. 500/- was handed over to the accused. Thereafter, the complainant came out and gave the pre-arranged signal. The complainant in cross-examination admitted that he had visited the house of the accused prior to 13.4.1991 on 4-5 occasions. He admitted knowledge about bribe the lay out of the accused's house. He further admitted that prior to 13.4.1991 he and the accused had no talks about bribe. He stuck to his version that on the date of the trap, he went to the office of the accused only once for passing on of the bribe. He admitted that when he went to the room of the accused, at that time the institution branch incharge Shambhoo Dayal Pareek and one Ladu Ram Khateek were also present in the room. Shiv Ram Meena PW-2 and Jagdish Prasad Joshi PW-3 the shadow witnesses deposed that they were summoned by the Anti Corruption Bureau officials as shadow witness in the trap proceedings. The Inspector read over the complaint filed by Chandmal in the presence of the witnesses and Chandmal stated that the accused was demanding a sum of Rs. 500/- as bribe for preparing his arrears. Shiv Ram was allegedly sent with the complainant to the office of Om Kumar for paying the bribe. When they reached inside the office, Om Kumar the accused and one Pareek were also sitting there. As per the witness, the accused asked for a sum of Rs. 500/-. Thereafter, when the complainant offered bribe, the accused refused saying that he could not accept the bribe in the office and that he should come to this residence. Thereafter, Chandmal expressed that he should be sent alone for paying the bribe because the accused might have become apprehensive because of the presence of Shri Meena. However, the complainant returned back and stated that the accused had called him home and had refused to accept the bribe in the office. The witness thereafter stated that he was informed later on by a Constable of the Anti Corruption Bureau that the accused had been trapped. The trap proceedings were then conducted in his presence. In cross-examination, the witness admitted about the presence of Ladu Ram and Shambhoo Dayal Pareek in the same room where the accused was sitting. The witness thereafter stated that he was informed later on by a Constable of the Anti Corruption Bureau that the accused had been trapped. The trap proceedings were then conducted in his presence. In cross-examination, the witness admitted about the presence of Ladu Ram and Shambhoo Dayal Pareek in the same room where the accused was sitting. The witness admitted in cross-examination that Chandmal went to the accused and stated that he has brought the sum of Rs. 500/- towards expenses of his arrears bills and that it should be accepted. Jagdish Prasad PW-3 gave a deposition similar to PW-2 Shiv Ram. The only significant difference being that the witness did not state that the accused demanded money from the complainant in presence of Shiv Ram. PW-4 Vagat Ram, PW-5 Dhandan Singh, PW-6 Rajkaran Singh, PW-7 Ganga Singh were all Constables posted in the Anti Corruption Bureau, who were associated in the trap proceedings at one or other point of time. PW-8 Dr. K.K. Agrawal was the Dy. Director, Sheep and Wool Department, Shahpura at the relevant time. He proved the fact that the preparation of the salary arrears of Chandmal was pending with the accused. In cross-examination, he admitted that the due drawn statement of Chandmal could not be prepared because of absence of administrative sanction. Shambhoo Lal Pareek PW-9 was a clerk postd in the office of the Dy. Director Sheep and Wool Department, Shahpura. He proved the recovery of certain documents from the office. Significantly enough, the witness was admittedly present in the room, when the accused allegedly demanded bribe from the complainant. However, the prosecution did not put any question to this witness as to whether or not the accused demanded bribe from the complainant in his presence. In cross-examination, the suggestion was given to the witness that the complainant came to the office on the date of the trap and tried to forcibly give the bribe to the accused. However, the witness feigned ignorance about the fact. PW-10 Narayan Singh and PW-11 Tulsidas were Constables posted in the Anti Corruption Bureau and were examined for the purpose of transit and the safe custody of the bottles of wash sealed after washing the hands of the accused. Nothing significant could be elicited in their cross-examination. PW-12 A.K. Singh was the Director, Sheep and Wool Department at the relevant time. Nothing significant could be elicited in their cross-examination. PW-12 A.K. Singh was the Director, Sheep and Wool Department at the relevant time. he accorded the sanction to prosecute the accused. PW-13 Rajyavardhan Singh the trap laying officer in his testimony deposed a significant fact which is required to be taken note of. As per the witness, after receiving the complaint Ex.P/1 from the complainant he made no effort to verify the factum of demand. The trap proceedings were straightoff initiated by him after summoning the shadow witnesses. This witness also started that the complainant made two attempts to pass on the bribe to the accused in his office both of which failed. He further admitted that only Chandmal stated that he had been called by the accused to his residence of accepting the bribe. The witness also admitted that the motbirs (shadow witnesses) were not sent with Chandmal to the house of the accused. Thus, the inference which can be drawn from the statement of this witness is that the witness did not make any attempt to verify the fact regarding the demand of bribe made by the accused. 13. From a consideration of the above evidence, it is manifest that the complainant's theory regarding the accused having demanded bribe from him remains uncorroborated. No verification of the demand was attempted by he seizure Officer. The bribe amount was not recovered from the personal search of the accused. The complainant himself was a Court bird and numerous cases of defalcation were going on against him. He was also convicted in a criminal case for the offences under Sections 409 and 467 of the I.P.C. He was also prosecuted for the offence under Section 182 of the I.P.C. with the finding that he tried to falsely implicate certain persons in a case of trap. The learned trial Judge has noted in para No. 23 of the judgment that when the search for the currency notes was going on, Chandmal was giving suggestions about the lace where the search should be conducted. Therefore, the probability of Chandmal himself having concealed the notes without knowledge of the accused with the objective of getting the accused entrapped in the case is not ruled out in the case. Therefore, the probability of Chandmal himself having concealed the notes without knowledge of the accused with the objective of getting the accused entrapped in the case is not ruled out in the case. The Hon'ble Apex Court considered the issue in the case of State of Punjab vs. Madan Mohan Lal Verma reported in 2013 Cr.L.R. (SC) 914, where the fact of demand of bribe was not proved by the prosecution and held that in absence of proof of demand of bribe, the mere recovery of notes cannot be sufficient to convict the accused. The Hon'ble Apex Court also considered he scope of appeal against acquittal and held as below: "7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide: Ram Prakash Arora vs. The State of Punjab AIR 1973 SC 498 ; T. Subramanian vs. The State of T.N., AIR 2006 SC 836 = RLW 2006(2) SC 1152; State of Kerala & Anr. vs. C.P. Rao, (2011) 6 SCC 450 ; and Mukut Bihari & Anr. vs. State of Rajasthan, (2012) 11 SCC 642 )". 14. In wake of the aforesaid discussion, this Court is of the opinion that the prosecution in this case also failed to prove that the accused demanded bribe from the complainant. Though of course, the wash taken from the hands of the accused gave positive test for the presence of phenolphthalein and sodium carbonate but the accused has given a semblance of explanation for the same. Though the explanation is not foolproof but the accused is permitted to prove his defence even by preponderance of probabilities. The preponderance of probabilities is definitely in favour of the accused in this case. Thus, this Court is of the opinion that learned trial Judge committed no error in acquitting the accused of the charges. 15. The State appeal thus being bereft of any force is hereby rejected. The judgment of acquittal of the respondent dated 24.4.2000 as recorded by the learned trial Judge is upheld.