HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON’BLE SHRI R.N. CHANDRAKAR., J Criminal Apgeal No. 551 of 2002 H . K'Vaidhya Appella$ts ‘1‘ i Responent d The Siate cf C‘nhattisgarh. A ¢ OST FOR RONOUNEMENT OF JUDGMEI S KN.and d/— JUDGE ‘ 95 -9-2009 P PC NX I a’/ GltE ‘ / S HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 551 of 2002 H.K. Vaidhya, s/o. Shri Sunderlalji Vaidhyafaged 45 years, resident of Quarter No. 394/6, Karju Nagar, Ratlam/Occupation — Service- Karyapalan Adhikari, Antyavsayi Sahkari Vikas Samiti Maryadit, Durg, District Durg (Chhattisgarh). Appellant: Accused ‘ Versus Respondent; V State of Chhattisgarh through Special Police Establishment, Divisional Office of Lokayukta, Raipur, Raipur Division, Raipur. .3 (Criminal appeal U/s 374 (2) of the Code of Criminal Procedure 1973) SB: Hon’ble Shri R.N. Chandrakar, J. Present: Shri Manindra Shrivastava, Sr. counsel with Shri Vivek Sharma and Shri Anand Verma, counsel for the appellant. Mr. A.V. Shridhar, Panel Lawyer for the State, JUDGMENT (Delivered on this 2g wday of September, 2009) 1. The appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, feeling aggrieved by the judgment of conviction and order of sentence dated 26-4-2002 passed by the First Additional Sessions—cum-Special Judge, Durg, in Special Case No. 6 of 1998 whereby the appellant has been convicted under Sections 7 and 13 (1) (d) (1) read with Section 13 (2) of the Prevention of Corruption Act (for short, “the Act") and sentenced to undergo RI for one year and to . ’ pay fine of Rs.100‘0/—, in default of payment of fine, to undergo further RI \ \ \ \ . for three months on each count. Both the sentences are ordered to run concurrently. 2. Briefly stated facts giving rise to this appeal are that on 14-8-1997 the appellant was serving on the post of Karyapalan Adhikari, Antyavsayi Sahkari Vikas Samiti Maryadit, Durg, District Durg (Chhattisgarh). The accused/appellant made a demand of Rs.500/— from Shyamkali (PW/7) to refund the amount of Rs.16,250/- to which she had_deposited two years back in the account No.382 of the said 'society as part amount u f towards financing her mini bus under Raftar Scheme. Since Shyamkali (PW/Z) was not‘desirous to give the said amount of bribe and was keen to get the appellant caught red-handed, she submitted a complaint (Ex.P/18) through K.C. Sonwani who was not examined by the prosecution, in the office of Lokayukt, Special Police Establishment, Raipur, on13-8-1997. The written complaint was entrusted to Dy. Superintendent of Police (for short, DSP) N.S. Kanwar (PW/12) by Superintendent of Police, Lokayukt, Raipur for taking necessary actiOn under the law. The D.S.P.N.S. Kanwar summoned two panch witnesses namely B.R. Mandavi (PW/3) and S.S. Pandey, (PW/5) and put some queries to complainant Shri K.C. Sonwani in their presence and for verification of the complaint gave him a micro—tape recorder with blank cassette for recording the conversation of demand of bribe vide EXP/19. K.C. Sonwai brought the tape-recorder after recording the conversation of bribe with the appellant which was not clear, therefore, he was again asked to record the conversation with the appellant at the other side of o the same cassette. After recording the conversation K.C. Sonwani /\ produced the tape recorder in presence of the aforesaid panch \ witnesses which was heard and reduced in writing (EXP/4). Thereafter, \ \ @ § the tape recorder and cassette were seize‘d vide Ex.P/5. The complainant Shri K.C. Sonwani again submitted a written complaint (Ex.P/2) before the Superintendent, Lokayukt, Raipur, Camp at Durg which was read over by the panch witnesses and on the basis of said adplication, the DSP N.S. Kanwar registered Dehati Nalsi (EXP/3) under section 7 of the Act. The conversation recorded in the cassette was deleted and given to the complainant for recording the conversation with the appellant at the time of giving him bribe. The panchnama ofwhich is Ex.P/3-A. On being satisfied that the complaint is prima facie correct, the complainant was‘ directed to produce currency notes of Rs.500/—, numbers thereof were noted down and the same were treated with phenolphthalein powder by Tilak Ram Gagre (PW/1). A pre-trap demonstration of the change of colour of solution of sodium carbonate on coming into contact with phenolphthalein powder, was conducted in the camp. A pre-trap Panchnama (Ex. P/ 6) was also prepared. 3. The treated currency notes were kept in the left pocket of the shirt of complainant who was directed to hand over the same to the appellant only when he makes demand of bribe. Thereafter, the trap party including the complainant went to the office of the appellant at Durg. The complainant was sent inside the office of the appellant and the members of the trap party were waiting outside for signal of the complainant. Thereafter, on being asked by the appellant whether he had brought the money, the complainant took out the treated currency notes of Rs.500/- and handed over the same to the appellant. Thereafter, the complainant J came out from the office and gave signal to the members of the trap party as a result of which they rushed inside the office of the appellant and caught hold of his hands from the wrist. \ \;\ \ wwx§ ‘ _ 4. Thereafter, the solution of sodium carbonate was prepared by constable Dauram Verma (PW/2) and the fingers of both hands of the appeiiant were dipped in the said solution whichoturned into pink. The solution was collected in a separate bottle and sealed. On enquiry about the bribe money, the appellant admitted to receive bribe of Rs.500/— and stated to keep the same in the left pocket of his shirt. The panch Witness B.R. Mandavi (PW/3) took'out the bribe money from the pocket of“ the appellant and numbers thereof were tallied with pre-trap p‘anchnama which were found to be the same. The notes were dipped in the salution of sodium carbonate which turned into pink. The fingers of the complainant KC. Sonwani, were also dipped in the solution ‘of sodium carbonate which also turned into pink. ’ The pocket of shirt of the appellant was also washed in the solution of sodium carbonate which was found to be positive. The wash of the shirt was also collected in a separate sealed bottle and the same was sent for chemical examination.‘ The notes of bribe were seized vide Ex.P/7, the shirt of the appellant was seized vide Ex.P/8 and the sealed bottles were seized vide Ex. P/1. During the proceeding one receipt book, bearing signature of the appellant at page No. 315,issued on 14-8-1997, was seized vide Ex.P/9 for evidence. The cheques bearing .Nos. 340925, 350051, 350052 for Rs.5000/— each and 350053 for Rs.1250/— issued in the name of Shyamkali by the appellant with his signature were seized with concerned note sheet vide Ex.P/10. The conversation recorded in the cassette during giving of bribe was heard and reduced in writing vide EXP/21. The cassette was seized vide EXP/11. Cheque book was seized vide Ex.P/22-A. The spot map Ex.P/13 was got prepared by Patwari. The report of FSL was received vide Ex.P/17. “v After the investigation was over and requisite sanction (Ex.P/16-C) was r obtained to launch the prosecution against the appellant, a charge—sheet was submitted before the learned Special Judge who framed charges punishable under Sections 7 and 13 (1)(d)(1) read with Section 13(2) of the Act against the appellant to which he denied and requested for trial. The learned Special Judge on the basis of evidence placed on record held the appellant guilty and convibted and sentenced as mentioned in para‘lfof the judgment. The prosecution, in order to prove the charges, examined as many as 15 witngsses and placed the documents Exht. P/1 to P/22-B on record. Apart from the defense that the appellant has been falsely implicated dUe to animosity because a complaint against K.C. Sonwani made by one Narendra Chandrakar was under investigation, a specific defence which has been put-forth during the cross examination of the prosecution witnesses as well as in the explanation offered by appellant in his statement recorded under Section 313 of the Cr.P.C., is that on 14—8-1997 i.e, the date of incident, the complainant Shri K.C. Sonwani, deposited RS500]? vide receipt No.2/1 09 against the loan amount taken for Auto by one Dashrath s/o. Dharamdas Satnami, r/o. Chikhli. The said receipt was signed and given to the complainant K.C. Sonwani by the appellant as also the intimation of which was sent to the then Collector stating that the installment of Rs.500/— deposited against the said loan has been forcibly seized and taken away by the trap party. The appellant produced the documents Ex. D-1 to D/5—A and examined 4 witnesses in his defence. . Shri Manindra Shrivastava, learned Sr. counsel appearing for the appellant submits that the prosecution failed to prove the necessary . . ingredients of the offences as mentioned above, beyond ail reasonable doubts against the appellant, as the complaint was not lodged by Shyamkali (PW/7) who was actually interested in the matter but one K.C. Sonwani was the architect of the entire story who was having grudge and enmity with the appellant because of the pendency of enquiry before the Police regarding the complaint of cheating made by one Narendra Chandrakar against K.C. Sonwani'in which the appellant had produced some documents. Learned counsel further argued that the so called cbmplaints ExPf18 dated 13-8-1997 and EXP/g undated have been signed by K.C. Sonwani and not by Shyamkali (PW/7) which go to show that actually it was K.C. Sonwani who was interested in prosecution of the appellant. Thus, the complaints (EXP/18 and EXP/2) are concocted and fabricated as the same were not lodged by Shyamkali. He further argued that the amount of Rs.500/— (so called illegal gratification) deposited by K.C. Sonwani was not accepted as illegal gratification, but the same was accepted against the loan amount taken by one Dashrath and receipt thereof was also signed and given to the complainant K.C. Sonwani. The said receipt was not seized deliberately by the trap party. He further submitted that the learned trial Court did not give due weightage to the testimonies of defence witnesses and totally ignored their version which could have compelled the trial Court to reach the conclusion that the appellant has fully explained his false implication in the case and he never demanded or accepted any illegal gratification from the complainant. He further argued that the tape—recorded conversation can only be relied upon as corroborative evidence of conversation, deposed by any of the parties to the conversation and in absence of evidence of any such conversation, the tape-recorded l \ \/‘ g conversation is indeed no proper evidence and cannot be relied upon. He further submitted that-the learned triai Court utteriy fa'iled to appreciate the prosecution evidence as«well as the testimonies of defence witnesses in proper perspective and committed grave error of Iavv in reaching the conclusion that the appellant was guilty of accepting illegal gratification. Thus, considering all the above facts and circumstances of the case‘ the impugned judgment ofthe trial Court be setjaiige and the appellant be acquitted of the charges. .Per contra,‘ learned counsel appearing for the $tate supporting the impugned judgment of the trial Court submits that on the basis of the evidence available on record, the trial Court convicted and sentenced the appellant. .Haying heard learned counsel for the parties, l have perused the impugned judgment, record of the trial Court as well as pleadings and documents appended thereto. .So‘ far as the submission of learned Sr. counsel appearing for the appellant regarding false implication that the complaint was not lodged by Shyamkali (PW/7), the interest person is concerned, on perusalof the written complaints Ex.P/2 and Ex.P/18, it is apparent that the same were written and signed by one K.C. Sonwani who was not examined by the prosecution. The fact is also admitted by N.S. Kanwar (PW/12), D.S.P. who investigated the matter. It is pertinent to mention here that the complaints regarding demand of illegal gratification were not even made by Hari Narayan Kosle (PW/8) the husband of Shyamkali (PW/7), though he was a ‘Police Constable. Thus, prima facie, it appears that >K.C. Sonwani was the architect of the complaints made against the appellant because he was having grudge and animosity with the \ @ @ appellant because he had produced some documents in an enquiry pending against K.C. Sonwani before the Police regarding cheating and misappropriation of money. The complaint was submitted by one Narendra Chandrakar’to the Superintendent of Police, Durg. This fact Was also corroborated by DW/1 SR. Suman & DW/2 Mahadev Tiwari (the Investigating Officer for the complaint made against K.C. Sonwani by Narendra Chandrakar) to which the trial Court did not..consider. On perusal of the complaints, it is also very clear that the place and date of demanding illegal gratification were not mentioned in the same. Thus, it is very hard to digest that the complaint would be filed with the help of some other persOn though, the husband of the real complainant was a Police Constable and in view of the admission of Shyamkali (PW/7) in para 4 of her deposition that she never met any officer of Lokayukt and she could go to Lokayukt‘office and lodge the complaint. In view of the aforesaid admission of Shyamkali (PW/7) it has not been explained by the prosecution as to why she did not lodge the complaint by herself. Hence, it cannot be ruled out that the complaints regarding illegal gratification against the appellant were concocted and fabricated with a ' view to implicate the appellant in a false case due to animosity. 13. So far as the presumption of illegal gratification is concerned, it is to be considered in the light of Section 20 of the Prevention of Corruption Act, 1988 which reads as under: 20. Presumption where public servant accepts gratification other than legal remuneration—(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub- section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or' for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he / i 15. In the matter of Dudh Nath Pandey v. State of U.P1., , Hon’ble the ‘ Supreme Court observed as under: “Defence witnesses are entitled tqequal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses.” 16. ln the matter of V. Venkata Subbarao vs. State representation of Police, A.P.2., , Hon’ble the Supreme Court observed as under: “If the defense is found probable then due we'ightage ‘ should be given to it and the same should not be V ‘ compared with that of prosecution where the prosecution is obliged to prove the case beyond reasonable doubt". '" £ a 17. ln the matter of Keshardan Vs. State of M.P3 Hon’ble High Court of M.P. observed as under: “It is well settled in law that credence to the evidence of defense witnesses should be given in the same manner as it is being given to prosecution witnesses. Merely the defense has examined witnesses in order to prove that the appellant is innocent, testimony of those witnesses cannot be thrown like waste paper in the dust bin”. 18. The aforesaid defence of the appellant is also corroborated by PW/3 w B.R. Mandavi who admitted in para 12 of his deposition that on the date of incident the appellant had immediately told the officials of Lokayukt that the amount of .Rs. 500l- seized by the trap party was deposited by the complainant K.C. Sonwani against the loan amount taken by Dashrath for which he gave receipt and obtained signature of K.C. Sonwani on‘its acknowledgment. The plea of the appellant also appears to be true in view of the testimony of U.R. Das (PW/15) who f" categorically stated in his cross examination in para 3 and 4 that he was posted in District Antyavasai Office, Durg from July, 1991 to 1994. K / r ‘(1981)2scc 166. / Z AIR 2007 sc 489 7//./,\ - 3 2005 MPHT sw/ \ , 12' V@ K.C. Sonwani, was the Chairman of the society and he was financed a7 luxury bus in the year 1992 under the capacity of Chairman of the society. He further stated that K.C. Sonwani used to visit the office for the work of others in addition to his own work. in- para 4 he categoricaily mentioned the details of installments deposited on various dates by K.C. Sonwani on behalf of others. He also stated that the installment can be deposited by‘any person and all the receipts of acknowledgment mentioned above bear the signatures of K.C. Sonwani. Thus, in the light of the testimonies of PW/15, U.R. Das, the Regional Olfficei; of the society and PW/3, B.R. Mandavi also, the statements of DW/1 A.R. Suman, DW/2 Mahadev Tiwari, DW/3 Dashrath Kumar Bharti and DW/4 G.P. Sharma, are reliable and their testimonies cannot be discarded and ignored only because they are defense witnesses. Thus, there was no satisfactory evidence about alleged demand of bribe by the appellant in view of the aforesaid evidence. On this point learned Sr. counsel appearing for the appellant placed his reliance on a decision of the Division Bench in the matter of Arun kumar Patra vs. State of M.P4. ln view of the aforesaid appreciation of evidence, it is crystal clear that the prosecution utterly failed to establish the presumption of illegal gratification as provided in Section 20 of the Act, whereas the appellant has satisfactorily explained his defence and rebutted the presumption appearing against him. 19. So far as tape recorded conversation regarding bribe is concerned, learned Sr. counsel relying on a decision of Hon’ble the Supreme Court in the matter of Mahabir Prasad Verma v. Surinder Kaur5, vehemently argued that it is not at all trustworthy and the trial Court ought not to 4 2009(4) MPHT 82 (DB) / \>(1_ .‘sf . 5 (1982,).230Mt , r / 13 have relied upon the same, in the absence of corroboration. On perusal‘ 1 ofjEx.P/4 and Ex.P/21 dated 14-8-1997, it is apparent that the same was reduced in writing by Jitendra Dama, Stenographer to Superintendent of Police, Lokayukt. it is aiso apparent that Ex.P/4 was got proved by PW/3 and Ex.P/21 was got proved by PW/2. Both the documents cannot be held reliable and trustworthy as the writer (Jintender Dama) of the same was not examined by the prosecution and PW/2, by whomlEx.P/21 was got‘pr‘oved, has nowhere stated anything in his deposition regarding the same. lt is' also pertinent to mention here that Pvy/12 N.S. Kanwar, the lnvestigating Officer though stated to seize the cassette vide Ex.P/11, in para 14 of his deposition, he nowhere stated that the said cassette was sent to FSL for testing its genuineness. Thus, the tape recorded conversation cannot be accepted as substantial piece of evidence in absence of corroboration. 20. lt is also pertinent to mention here that the language of the charge framed by the Special ‘ludge, is totally different from the prosecution story. A bare reading of the charge goes ‘to‘show that it was K.C, Sonwani, who deposited Rs.16,250/— as margin money for financing him a Mini Bus and the amount of Rs.500/— as illegal gratification was demanded from him but as per the prosecution, actually the alleged illegal gratification was demanded from Shyamkali (PW/7) for refund of margin money deposited by her. Hence, the appellant was tried and convicted for the charge other than the prosecution story which is not sustainable in the eyes of law. 2’1. PW/7 Shyamkali admitted in para 6 of her cross‘examination that on 14- 8-1997 she along with K.C. Sonwani went to the office of the appellant and she herself gave the alleged amount of bribe to the appellant but on @ 14 @ M\C I perusal of the testimonies of PW/10, the inspector (para 3 and 4) and‘ PW/12 the Investigating Officer (para 22), it is clear that the money was not given by PW/7 Shyamkali. Thus, thetestimony of PW/7 Shyamkali does not inspire confidence being untrustworthy. 22. Learned Sr. counsel appearing for the appeilant in support of his arguments has also placed reliance on a decision of Hon’ble the Supreme Court in the matter of‘T. Subramanian v. State of T.N6 wherein ‘t it has been observed in para 12 which reads as under: "12.‘Mere receipt of Rs 200 by the appellant from PW 1 on 10-7-1987 (admitted by the appellantfwill not be sufficient to fasten guilt under Section 5(1)(a) or Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. lf the amount had been paid as lease rent arrears due to the temple or even if it was not so paid, but the accused was made to believe that the payment was towards lease rent due to the temple, he cannot be said to have committed any offence. if the reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted, as rightly done by the Special Court. In Punjabrao v. State of Maharashtral the accused, a patwari, was on a campaign to collect loan amounts due to the Government. The complainant therein was admittedly a debtor to the Government. The accused explained that the amount in question was received towards loan. This Court accepted such explanation (though such explanation was not immediately offered as in this case, but was given only in the statement under Section 313) holding thus: (SCC p. 372, para 3) “lt is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. lt is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, , but can establish the same by preponderance of‘probability.” e Having considered all the facts and circumstances of the case and in view of the law laid down by Hon’ble Supreme Court in various judgments and otherjudgments, i am of the opinion that the present appeal is squarely 6 (2006) 1 scc 401 -.///" ./ 15 covered by the case of T. Subramanian (supra) and the same deserves to be allowed. 23. For the reasons stated herein above, l am’of the view that the learned trial Court erred in convicting the appellant for the offence punishabie under Sections 7 & 13 (i)(d)(1) read with Section 13(2) of the Act. In the opinion of this court, no charge against the appellant has been proved at all. Thus, this appeal succeeds and is hereby allowed. The judgment of conViction and order of sentence passed by the learned Special Judge is a f hereby set a‘side and the appellant is acquitted of all the charges. The appellant is in jail. l:le should be released forthwith, if not required in any other case. The amount of fine, if deposited, be refunded to him. Sdl- u- ‘R.N.Chandrakar Judge /"