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2013 DIGILAW 3 (CHH)

NOHAR SINGH SAHU v. STATE OF C. G.

2013-01-02

RADHE SHYAM SHARMA

body2013
JUDGMENT 1. This appeal is directed against judgment dated 1-3-2004 passed by Special Judge and 1st Additional Sessions Judge, Raipur in Special Case No.4/ 2003. By the impugned judgment, accused/appellant Nohar Singh Sahu has been convicted under Sections 7 and 13(I)(d)/13(2) of the Prevention of Corruption Act, 1988 (hence forth 'the Act, 1988') and sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs.1,000/- and to undergo rigorous imprisonment for 4 years and to pay fine of Rs.2,000/- respectively. In default of payment of fine imposed for both the offences, the accused has been sentenced to further undergo rigorous imprisonment for 3 months for each count. The jail sentences are directed to run concurrently. 2. Case of the prosecution, in brief, is as under:- Accused/appellant Nohar Singh Sahu was a Patwari of Village Gullu, P.H. No. 41/57, Tahsil Arang, District Raipur. Complainant Rewaram Sahu (PW-3) was acquainted with him. Complainant Rewaram Sahu (PW-3) had purchased ½ acre of land in the name of his younger brother Dhaniram Sahu. Rewaram Sahu (PW-3) had approached the accused for mutation of the land in the name of his younger brother. At that time, the accused had demanded a sum of Rs.300/- from the complainant. Since, the complainant did not want to satisfy the demand of illegal gratification made by the accused he submitted written complaint (Ex.P-6) in Lokayukta Office, Raipur on 20-5-2002. On the basis of Ex.P-6, First Information Report (Ex.P-15) was registered at 0/2002. Superintendent of Police (Lokayukta), Raipur forwarded the complaint (Ex.P6) to Inspector Mukesh Khare (PW-7) for taking necessary action. Mukesh Khare (PW-7) arranged a trap-proceeding and called for two Panch Witnesses R.K. Bajaj (PW-6) and one D.K. Shrivastava (not examined). They were introduced with the complainant. They enquired about the complaint (Ex.P-6) from the complainant. Thereafter, a pre-trap demonstration was arranged, wherein a solution of sodium carbonate was prepared in a glass. On dipping .of a piece of plain paper in the solution, colour of the solution did not change. Thereafter, another piece of paper smeared with phenolphthalein powder was dipped in the said solution, colour of which turned pink. The complainant was asked to present currency notes of Rs.300/-. The complainant submitted three currency notes for Rs.300/- in the denomination of Rs.100/- each. Numbers of the currency notes were recorded in Pre-Trap Panchnama (Ex.P-7). Thereafter, another piece of paper smeared with phenolphthalein powder was dipped in the said solution, colour of which turned pink. The complainant was asked to present currency notes of Rs.300/-. The complainant submitted three currency notes for Rs.300/- in the denomination of Rs.100/- each. Numbers of the currency notes were recorded in Pre-Trap Panchnama (Ex.P-7). After submission of the currency notes, phenolphthalein powder was smeared thereon and the notes were kept in left pocket of the shirt of the complainant. The complainant was instructed and guided as to how the trap would be arranged and as to the role which they were required to play in the trap-proceeding. The trap-team proceeded for Tahsil Office Arang. When they reached Tahsil Office Arang, the complainant and Charan Singh Paikra (PW-4) proceeded for the office where the accused was present and the other members of the trap-team gathered around the office. The complainant gave currency notes of Rs.300/- in the denomination of Rs.100/- each to the accused. The accused kept them in his pocket. After receiving signal transmitted by the complainant, the trap-team rushed the spot immediately and caught hands of the accused. The trap-team seized the currency notes from the pocket of the accused. Numbers of the currency notes seized from the accused were compared with the numbers mentioned in the Pre-Trap Panchnama (Ex.P-7), which were found similar. A solution of sodium carbonate was prepared and fingers of both the hands of the accused were dipped in the solution, colour of which turned pink. Thereafter, the solution was kept in a bottle and sealed. Another solution of sodium carbonate was prepared in which pocket of the full pant of the appellant was dipped, colour of which also turned pink. Thereafter, the solution was kept in another bottle and sealed. Another solution of sodium carbonate was prepared and the seized currency notes were dipped therein, colour of which turned pink. The solution was kept in another bottle and sealed. Another solution of sodium carbonate was prepared in which fingers of the complainant were dipped, colour of which also turned pink. The solution was kept in another bottle and sealed. Sale deed was seized vide EX.P-12 and trap-proceeding panchnama was prepared vide EX.P-14. Thereafter, regular First Information Report No. 113/2002 (Ex.P-16) was registered. Seized and sealed solutions were sent for chemical examination vide Ex.P-18. The solution was kept in another bottle and sealed. Sale deed was seized vide EX.P-12 and trap-proceeding panchnama was prepared vide EX.P-14. Thereafter, regular First Information Report No. 113/2002 (Ex.P-16) was registered. Seized and sealed solutions were sent for chemical examination vide Ex.P-18. After completion of the investigation, sanction for prosecution against the accused was obtained vide EX.P-1 and charge-sheet was filed against him in the Court of Special Judge/1st Additional Sessions Judge, Raipur. The learned Special Judge framed charges against the accused under Sections 7 and 13(1)(d)/13(2) of the Act, 1988. After appreciation of the evidence available on record, the learned Special Judge convicted and sentenced the appellant as mentioned above. 3. Shri Pawan Kesharwani, learned counsel for the appellant, argued that the prosecution has failed to prove demand of illegal gratification by reliable and cogent evidence. It is necessary for the prosecution to satisfy and establish that all the ingredients of Sections 7 and 13(1)(d) of the Act, 1988 have been made out before convicting the accused. Therefore, the prosecution did not succeed in proving the ingredients of Sections 7 and 13(1)(d) of the Act, 1988. He further submitted that even if a presumption is drawn as per Section 20 of the Act, 1988, the accused established his case that he did not accept any illegal gratification. Complainant Rewaram Sahu (PW-3) has not supported the case of the prosecution and has been declared hostile. The appellant has established that he has been falsely implicated in the case and the tainted money recovered from him was towards the payment of land revenue. He further submitted that the impugned judgment is not sustainable in the eyes of law and the appellant deserves to be acquitted of the charges framed against him. 4. On the contrary, Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the prosecution has adduced cogent and reliable evidence against the accused. Bribe money was recovered from the accused. Fingers of both the hands of the accused were got dipped in the solutioi1 of sodium carbonate colour of which had turned pink. Pocket of the pant of the accused was also dipped in another solution of sodium carbonate, colour of which had also turned pink. Acceptance of the amount is not disputed by the appellant, therefore, presumption under Section 20 of the Act, 1988 is made out against the appellant. Pocket of the pant of the accused was also dipped in another solution of sodium carbonate, colour of which had also turned pink. Acceptance of the amount is not disputed by the appellant, therefore, presumption under Section 20 of the Act, 1988 is made out against the appellant. Hence, the impugned judgment does not call for any interference. 5. Having heard rival contentions of the parties. I have perused the record of Special Case NoA/2003 with utmost circumspection. The learned Special Judge, after appreciation of the evidence available on record, held that the accused had demanded illegal gratification of Rs.300/- from the complainant for mutation of the land in the name of his younger brother in the revenue record. 6. Mukesh Khare (PW-7), DSP R.K. Sharma (PW-5) and Charan Singh Paikara (PW-4) deposed that they were posted in Ante-Corruption Bureau, Raipur. Mukesh Khare (PW-7) deposed that on 20-5-2002, Superintendent of Police (Lokayukta) forwarded the complaint (Ex.P-6) to him for necessary action. At that time, the complainant Rewaram Sahu (PW-3) was present there. He called two Panch Witnesses R.K. Bajaj (PW-6) and D.K. Shrivastava (not examined) and introduced them with the complainant. He gave the complaint (Ex.P-6) to the Panch Witnesses for their perusal and they enquired about the complaint (Ex.P-6) from the complainant. Thereafter, a trap-proceeding was arranged. A pre-trap demonstration was arranged. Charan Singh Paikara (PW4), R.K. Sharma (PW-5) and R.K. Bajaj (PW-6) also deposed in similar fashion. R.K. Bajaj (PW-6) deposed that pre-trap demonstration was arranged. After giving the demonstration, the complainant was asked to submit currency notes of Rs.300/- (3 notes in the denomination of Rs.100/- each), on which, phenolphthalein powder was smeared and thereafter the said notes were kept in the pocket of the shirt of the complainant. The complainant was informed and guided as to how the trap would be arranged and about the role which they had to play during trap-proceedings. Mukesh Khare (PW-7), Charan Singh Paikara (PW-4) also deposed in similar fashion. 7. Mukesh Khare (PW-7), Charan Singh Paikara (PW-4), R.K. Sharma (PW-5) and R.K. Bajaj (PW-6) deposed that they proceeded for Tahsil Office, Arang. The appellant was present there. Rewaram Sahu (PW-3) gave tainted money of Rs.300/- to the appellant. The appellant kept them in pocket of his pant. Thereafter, the complainant came out and transmitted signal to the trap team. 7. Mukesh Khare (PW-7), Charan Singh Paikara (PW-4), R.K. Sharma (PW-5) and R.K. Bajaj (PW-6) deposed that they proceeded for Tahsil Office, Arang. The appellant was present there. Rewaram Sahu (PW-3) gave tainted money of Rs.300/- to the appellant. The appellant kept them in pocket of his pant. Thereafter, the complainant came out and transmitted signal to the trap team. Mukesh Khare (PW-7), after receiving the signal of Rewa ram Sahu (PW3), rushed there along with other members of the trap team and caught hands of the appellant. A solution of sodium carbonate was prepared and fingers of the accused were dipped in the solution, colour of which turned pink. The solution was kept in a bottle and sealed. The currency notes were seized and numbers thereof were compared with the numbers mentioned in the Pre-Trap Panchnama (Ex.P-7), which were found similar. Another solution of sodium carbonate was prepared and the seized currency notes were dipped therein, colour of which turned pink. The solution was kept in another bottle and sealed. They further deposed that another solution of sodium carbonate was prepared and pocket of the pant of the appellant was washed in the solution, colour of which turned pink. 8. On examining the accused under Section 313 Cr. P.C., he took defence that the complainant gave the sum of Rs.300/- to him as Lagaan (land revenue) which was due against him. 9. Rewaram Sahu (PW-3) deposed that the accused was posted as Patwari. He purchased land measuring ½ acre. He approached the accused for mutation of the land in the name of his younger brother Dhaniram Sahu. At that time, the accused told him that Rs.300/- was due against land revenue. After depositing the land revenue of Rs.300/-, the mutation will be effected in the name of his younger brother. After 2-3 days, he contacted the appellant and sought to know about the mutation. The appellant was not present at home, hence, he gave the sum of Rs.300/- to Sarpanch. After sometime, he enquired about mutation, then he came to know that mutation was not effected in the name of his younger brother. Then on 20-5-2002, he made complaint (Ex.P6) in Lokayukta Office; Raipur. His further deposition is in similar fashion as deposed by Mukesh Khare (PW -7), Charan Singh Paikara (PW-4) and R.K. Bajaj (PW-6). 10. In T. Subramanian Vs. Then on 20-5-2002, he made complaint (Ex.P6) in Lokayukta Office; Raipur. His further deposition is in similar fashion as deposed by Mukesh Khare (PW -7), Charan Singh Paikara (PW-4) and R.K. Bajaj (PW-6). 10. In T. Subramanian Vs. State of T.N. (2006) 1 SCC 401 , the Hon'ble Supreme Court observed that in a case under Section 5(1)( d) read with Section 5(2) of the Prevention of Corruption Act, 1947, mere proof of receipt of money by the accused in absence of proof of demand and acceptance of money as illegal gratification is not sufficient to establish guilt of the accused. If the accused offers reasonable and probable explanation based on evidence that the money was accepted by him, other than as an illegal gratification, the accused would be entitled to acquittal. 11. In Suraj Mal Vs. State (Delhi Administration (1979) 4 SCC 725 , the Hon'ble Supreme Court held that mere recovery by itself cannot prove the charge of the prosecution against the appellant in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. 12. In C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 , the Hon'ble Supreme Court observed thus: "18. In Suraj Mal v. State (Delhi Admn., (1979) 4 SCC 725 ) this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. 22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. "4. .......... It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. "4. .......... It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." (emphasis supplied) (See V.D. Jhingan Vs. State of U.P. AIR 1966 SC 1762 at AIR p. 1764, para 4) 13. In State of Kerala and another Vs. C.P. Rao (2011) 6 SCC 450 , the Hon'ble Supreme Court observed thus : "7. In the background of these facts, especially the non-examination of CW 1, was found very crucial by the High Court. The High Court has referred to the decision of this Court in Panalal Damodar Rathi v. State of Maharashtra, (1979) 4 SCC 526 , wherein a three-Judge Bench of this Court held that when there was no corroboration of testimony of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on. In the aforesaid circumstances, the three-Judge Bench in Panalal Damodar Rathi case held that there is grave suspicion about the appellant's complicity and the case has not been proved beyond reasonable doubt. (See SCC para 11) 10. In CM. In the aforesaid circumstances, the three-Judge Bench in Panalal Damodar Rathi case held that there is grave suspicion about the appellant's complicity and the case has not been proved beyond reasonable doubt. (See SCC para 11) 10. In CM. Girish Babu v. CBI, (2009) 3 SCC 779 , this Court while dealing with the case under the Prevention of Corruption Act, 1988, by referring to its previous decision in Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725 , held that mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused. In the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. (See SCC para 18) 11. In a subsequent decision of this Court also under the Prevention of Corruption Act, in A. Subair v. State of Kerala, (2009) 6 SCC 587 , this Court made certain pertinent observations about the necessity of the presence of the complainant in a bribery case. The relevant observations have been made in paras 18-19 which are quoted below: (SCC p. 592) "18. ...... The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification for non-examination of the complainant. 19. We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for the non-examination of the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the court." 12. Those observations quoted above are clearly applicable in this case. It has, therefore, to be held that the best evidence to prove the demand was not made available before the court." 12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in SCC para 28 of A. Subair case made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court." 14. Rewaram Sahu (PW-3) deposed that the appellant had told him that Lagaan amount of Rs.300/- was due and had asked him to deposit the same. He further deposed that he gave Rs.300/- to the appellant for Lagaan. In paragraph 17 of his cross-examination, he specifically deposed that it is true that the appellant had told him that if the land revenue of Rs.300/- will not be deposited, the mutation would not be done. Tahsildar Ajay Tiwari (DW-1), Ratnakar Sahu (DW-2) and Bhagatram (DW-3) deposed that Rewaram Sahu (PW-3) came to the appellant. They enquired from Rewaram Sahu (PW-3) that why he came there. Rewaram Sahu (PW-3) told them that he wanted to deposit land revenue and he was asking for the appellant. When the appellant came there, Rewaram Sahu (PW-3) gave money to the appellant for depositing land revenue. 15. In the instant case, the appellant had given a statement that the money recovered from him was towards the payment of land revenue. The factum of land revenue due against complainant Rewaram Sahu (PW-3) is admitted by complainant Rewaram Sahu (PW-3) and is also corroborated by defence witnesses Tahsildar Ajay Tiwari (DW-1), Ratnakar Sahu (DW-2) and Bhagatram (DW-3). 16. It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of an inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence. 16. It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of an inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence. If each link of the chain of events is established pointing towards the guilt of the accused, the prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence. 17. So far as presumption under Section 20 of the Act, 1988 is concerned, it is well settled that the presumption under Section 20 is not inviolable one. The accused charged with the offence can rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption, the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification. It is equally well settled that the burden of proof upon the accused against whom the presumption is made under Section 20 of the Act, 1988 is not akin to the burden placed on the prosecution to prove the case beyond reasonable doubt. It is sufficient if the accused succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused to prove his case beyond reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts, i.e., that of establishing on the whole case the guilt of the accused beyond reasonable doubt. 18. In the instant case, the prosecution has failed to prove the demand and acceptance of bribe by the accused from the complainant. Mere recovery of money from the accused by itself cannot prove the charge of prosecution against the accused in absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. 19. For the foregoing reasons, the appeal is allowed. Mere recovery of money from the accused by itself cannot prove the charge of prosecution against the accused in absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. 19. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the accused/appellant under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 are set aside. The accused/appellant is acquitted of the charges framed against him. Presently he is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.