HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Agpgal No.557 o 1990 f (SB: Hon’ble Mr. T.P.SHARMA, J) Z th ubaida Khatoon and oers V. s he State of Madhya Pradesh (now Chhattisgar) T h PQST FOR PROUNCMT OF THE JUDGMENT 3/8/01 iii, " ..‘..‘/‘ Sdl- . P. Sharma Judge ,// \, \ EEN ON 20 T / H COURT OF CHHATTISGARH AT BILASPUR Criminal Aggeal No 557 of 1990 _ (Criminal Appeal under 374 (2) of Cr.P.C.) (SB: Hon’ble Mr. T.P. Sharma, J.) ren shlsh Surana counsel for the appellants shrl Dubey, Govt Advocate for the State a _ JUDGMENT - _ g (Delivered on 3'a August 2010) " ‘ »1. Chlenge In this appeal is to the Judgment of convrction & order of sntence dated 28 5 1990 passed by the SpeCIal Judge Bilaspur In e Criminal Case No 7/85 whereby & whereunder learned SpeCIal Jg after holding accused S N M Haque (Since deceased) (reesented by his legal representatives) guilt for the offence _ 77 g . ’ punishable under Section 161 of the I P C and Section 5 (1) (d) read / \ With Section 5 (2) of the Prevention of Corruption Act 1947 (in short ‘the Act 1947 ) sentenced him to undergo R l for one year and R i for two years & to pay fine of Rs.1000/— in default of payment of tine to futer erg . o ix oh HIG Pset — Mr A Mr Su t e al Spcral ude pr rh undo R.l fr s mnts AQQeHants ‘ _ , 1. Zubalda M Mearajul ‘ 2. " RafaatAnjum Haque aged about 32 ‘ ’ 3. Swaleha Zaheen, wlo. Fazal Ahmed, 3O Khan, aged about years, 4. Sheasta Naseeb Haque, aged about " 26 years _ 5. Sheerrn Shabab Haque aged about V ‘ ' 24 years t 6. ' Seerat Atahar Haque, aged about 32 ,l years ‘ V All resident of Phool Chowk Near (C G ) ‘ Momln Maszrd Road Ralpur Versus gesgondent ' ‘ The'State of Madhya Pradesh (Now Chhattisgarh) ...» 2-.— ConVIctIon is challenged on the ground that wnhout there being any Iota of eVIdence sufFICIent for conVIctlon of the accused the trial Court has conVIcted & sentenced him as aforementioned and thereby committed illegality. Case of the prosecution in brief is that on 303 1982 accuse MMHuq (srnce deceased) was public servant and working as ssrstant Sales Tax Officer Bilaspur Relating to his offcral act he emanded illegal gratification other than Iegal remuneration from .f ‘. Sachhanand (PW 2) a busrnessman for closrng of his case He was not ready to give bribe he met With the Vigilance officer and mad omplaint Ex P/4 On 30 3 1982 trap party was constituted Panch itnesses Shri MS Paikra Sub DiViSionaf Offcer (Revenue) an , J PSingh Naib Tahsrldar were called Reaction of phenolphthalein ower and sodium carbonate was demonstrated The complainan produced one currency note of Rs.100/—. Number of currency note wa recorded in primary panchnama vide Ex‘.P/5. Same was tainted with phenolphthalein powder and'kept in pocket of_shirt of the complainant, e was directed that he will give the money on demand and befor‘ giving such currency note he Will not touch the currenCy note or he Wi not‘shake his hands with any person. After giving bribe, he gave signl yputting his hands Over his head. Primary panchnama EXP/5 wa corded. Trap party proceeded for the spot. - Complainant Sachhanand (PW-2) and his friend Murli Bajaj (PW-6) went tothe ofnce ' f the accused. Other members of the party took their position ne'ar the office of the accused. The accused demanded Rs.t00/— for dismissal ‘ of the Case then he took out currency note kept in his'bocket and gave he same to the accused which he took the same in his hand and kept n drawer of table The complainant gave Signal then trap party ntered into the room of the accused and after introducmg themselves ne member caught hold the hands of the accused Solution of sodium carbonate was prepared and hands of the accused were washed which urned into pink colour which was sealed Thereafter currency note of Rs 100/— kept in the right drawer of table of the accused was taken and as washed in the solution of sodium carbonate which also turned into pink colour. Numbers were tailed and found correct. Hands of the complainant were also. washed in the solution of sodiUm carbonate 0 d S A d H V‘ e c W d p t s h e ‘1 H a ll b s re o t i i e o t w which .al‘so turned into ‘pink colour. Currency note waisvseized videv Ex Pl8 along With other currency notes and documents F I R was lodged vrde Ex P/1 7A Solutron were sent for chemical examination to ~ .r. , r Forensrc Scrence Laboratory, Sagar and presence of phenolphthalern powder and solutron of sodrum carbonate were confrmed In the wash solution of the complalnant the accused and currency note vrde Ex P/17 Offlcral record were seized vrde Ex Pl13 Spot map was prepared vrde Ex Pl16 . Statements of the Witnesses were recorded under Section 161 of the Cr P C and after completion of investlgatlon documents were sent for accordln‘g sanction After appllcatton of mlnd sanction was accorded t by the State Government vrde EXP/1. Thereafter charge sheet was K flled beforethe SpeCIalJudge Bllaspur 3 7 V’ ‘ I 5. In order to prove the guHt of the accused the prosecution has V exammed as many as nme wrtnesses The accused was examlned V under Section 313 of the Cr P C where he denied the crrcumstances -~ appeanng against hrm and pleaded Innocence and false Implrcatron In the crrme In question The accused has taken specrfrc defence that for passrng the final order the complarnant was requrred to deposrt Rs 125/— In case of Without affIdaVIt and Rs 100l— In case the complainant submits aftldawt The complainant came With Rs 100/- which he gave to him thereafter he went out from his office for another ‘ Rs 25l- and affIdaVIt meanwhile another person Ramkumar also came L for depositing his dues of Rs 717l- he was preparing receipt at that time trap party entered Into the room and conducted proceedlng, he Informed them that the complainant has given him Rs 100l- which was V legally demanded against the dues. He has not demanded or accepted illegal gratification other than legal remuneration 6 After providing opportunity of hearing'to the parties learned Specia Judge conVIcted & sentenced the accused as aforementioned 7. l have heard learned counsel for the parties perused the Judgment ‘ Impugned andrecord of the trial Court. y 4 “ y _ ; " " " l , In the present case during pendency of the appeal the accused ‘died ermissmn to contmue the appeal has been granted to his legal representatives I e present appellants No 1 to 6 earned counsel for the appellants vehemently argued that ln the present case the accused has never demanded or accepted illegal g ratrfcatron other than legal remuneration from the complainant by~ misusing his office. The complainant was'under obligation to deposit r it Rs.100/— in case along with affidavit or Rs.125l— without any affidavit. On the date of commission of the offence, the complainant came and deposited Rs.100/- and went1from his office for bringing again Rs.25/— nd affidavit, meanwhile another person Ramkumar also came for depositing his dues of Rs.7,1 71-. The accused was about to prepare the receipt in favour of Ram Kumar, at that time, trap party came and conducted post trap proceeding. Learned counsel further argued that evidences of the prosecution witnesses are self—contradictory Learned counsel contended that m the present case competent authority has ccorded sanction under the old Act therefore it cannot be consrdered or sanction under the new Act. earned counsel placed reliance m the matter of Subash Parbat‘ Sonvane v State of Guirat1 in which the Apex Court has held that mere acceptance of money Is not suffrcrent for convrctmg the accused under Section 13 (1) (d) (i) of the Prevention of Corruption Act, 1988. There must be evidenCe on record that accused ‘obtaine‘d' any amount by corrupt or illegal means. ln the absence of evidence of demand and acceptance and corroboration by. complainant, conviction is not sustainable. Learned counsel further placed reliance in the matters of “ ~ RajeSh Singh slo Nageshwar Singh (Dr.) v. State Of M.P.2 in whiCh he, High Court of Madhya Pradesh has held that sanction accorded ’ under the old act cannot be considered for sanction under the new act. Learned counsel relied upon the matter of State of Himachal Pradesh ”winder Mohan3 in which‘the Hih Court of Himachal Pradesh has held a that in the abse en an acnce rib 12002 CRI.L.J. 2787 r 22007 (1) M.P.L.J. 154 32006 CRI.L.J. 1720 4V'— P .- L a a “i‘ f . L t g nce of evidence of dmad d cepta ofbe, hfw convnctlon of the appellant under Section 13 of the Prevention of Corruption Act 1988 Is not sustainable under the law 11 On the other hand learned State counsel supported the judgment Impugned and argued that as per the case of the prosecutlqn the accused demanded and accepted bnbe on 30 3 1982 on that day Prevention of Corruptlon Act 1947 was ln force Sanction was accorded on 741984 on that day, same Act Ie Prevention of Corruption Act 1947 was In force although at the tlme of tnal and Judgment act was repealed by the Preventlon of Corruptlon Act 988 (Act 49 of 1988) ln order to prove the sanction the prosecutlon has exammed S Verma r (PW-1) who has proved the fact that sanction Ex.P/1 was accorded ‘by the then‘Speclal Secretary, State Government. Nothing has been asked by the accused in his cross-examination to discredit his testimony. According oftsan'ction is public duty and in cases containing the facts constituting the offence and the ground of satisfaction, sanction can be proved by producing the otiginal sanction order or by‘ ’i adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. 13. While dealing with the questiOn of prove of sanction the. Apex Court in the matter‘of Mohd. Iqbal Ahmed v. State of Andhra Pradesh " has held that it is incumbent‘on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1') by producing the original-sanction which itself contains the facts constituting the-offence a r and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it 14.” While dealing With the same question the Apex Court in the matter of ‘ State‘of Tamil Nadu v. Da‘mo'darans has held that the prosecution is required to place all relevant material before SanCtioning Authority for a V" » according sanction and Sanctioning Authority iS'required to accord sanction after applying his mind. . In the present case, sanction order Ex.P/1 reveals that sanctioning authorityihas considered the record produced on behalf of the investigating officer and after satisWing itself has accorded sanction for proseCution against the accused. Three pages detailed sanction order further reveals that detailed facts of the case constituting the offence sh‘ow that sanctioning authority has applied its mind after considering the material placed before it and has accorded the sanction. As held by the High Court of Madhya Pradesh in the matter of Rajesh §ingh (supra), sanction was accorded ~under the Prevention of u, , orti , 7 thr pro astn ‘o a t sam ed for the purpo rosu ccrd under the ew t te prest a, f s ommit uer l act nd as crd e h ol t. e prosuti ha not agu that sa tred s sancti nder th n at of t Prvent opn Act, 8 Te ce ajesh Sih dngUhae o t g of ct f the peet s . As e the ur th atter ub bte ra, er rry o e ro t ccus‘ sficient o sttu th get of offenc a the pecton is re to pre te inden of dd and ace of bibe by aedr - , wt Crupon Act 194, erefoe, the secution wnotcompeet t rgue tha e may be considre se of pection aoed n ac. In h en cse. ofence wa cted nd theod a sanction w acoed undr te d ac Th econ s red me be eat a on u e ew c he eion of Crrutio 198. h 'as of R ng is istiisbI n he round fa o rsn cae. hld by ApeX Cot in e m of’Sash Para'Sonvan (sup) me ecove f mony fm he "‘aedis not uf .t conite e inredin e nd rosui quired ’ ov h greit eman ceptanc r the ccus the pese se, the accuse ha specly amited tht . In rnt ca d s ifical dt a the comnt has gi s.1OQ- to him hch s rcoverd from him plaina ven R/ wi wa ee . e ws Wog as pc ervant nd asdirgg h officia uy' H a rkin ubli s a w'schain is l dt s als isputd. e onl ues raine fo cons i i o not de Th y qtion emd r ideration s whther he sed hs demanded ad acpd bibe of Rs100/ e t accu a n cete of r .— ig tificatn o lel remu‘raon y'a s ps lirvt omplin ana (P2) a osed i hi of pubcsean. Caant Schhand W- hs dep n s dnce tha before suc ra, the accuse came into’hs shop d evie t h tp d i an iuied abo m relatg o ses ax m, heater bot one nqr ut hi in t al t nuber tref au t h ecive not'r e al Ofice ro 2 monh e red icefom th Ses Tax f pbably Exs.P/ ~. as lleal graio therthan ga neti bbusing hi ot " ’ ’ , hen h e o te ace nd equ t cess a b emae, ma eper nn l u tn e cuse tol i rib o hi th ll coe ti,‘ e a ot ed t ie ri, he otact ilan ' de, rduc upe uncy n rimr he w to h ice t acuse t hi fre url her e ccu de .10.0/ w e pt ‘tap eedig was dcted 2Mi ja (W-6) ha subtantil obated he vidce o Shanand (PW2), ahough post ra peedin i notdpue prn cse EVen oerwise ph Witness MSPaIkr W 3) has utantially cbote pre ad po rap oceedig Dence h cross-exmi Sachnad (P2 . l'n hs rmni has e at he o not br ee h entone e act e accusd o his h e hs itted h deman R25 nenc of roceding boales Tx parent, has ficl“ died ti f suc rp e hd go t he ffice f e se’to ost sl— as tax a te ing R0/ he cae and P/3 t e wnt t h cusd a rested hat ex tx has een dndd he is sll shopke ruing smal bsiness, he th acd d him that f he give be t m, en he wi ls his le h ws n ray o gv bbe cned vgice partment he poed 100/— res crre ote and after pay panchnama ent te off of he cd along wih s ind Mi Bajaj we th ased demand Rs— hich he gav and os r procn conu. ’url Baj P .s saly corror t een fv ach - lt tp rocg s ‘ist in the eset a th anc a (P sbs orro‘ra‘d n st t prn ef as aned han W-) in detail V i coss-exaiaton he statd th des rememe whthr he as mid th f that arlier the e has cme to sop or not. H a adm te d of s.1/— in pedy the pe efreS a Detm but specialy ’ en that at the me o h ta, h a ne o. t o o th accud depi R.125 nd afr giv s.10— m ot from te mce r bringi an Dn has al rs- u h o fo ng rest mout. efece so cos examine M Bajj (PW6) i dail in ich h has sificly d urli a - n et, wh e pecal staed tht t the csed tol hm tht h ves smething tn t a hat acu d i a if e gi o he he wil close h . He has subtntly ted the eence l te case saial corrobora vid of Sachand can. . te t ca i a o v pamen o ax /q o R / cola s ste h e accu a e 0/ N one an tk ha a ron ‘ ll relag to m o c los b po - R h n ll e nd s r l b of e amount f ax o or 25 he ec of the ol fr l of an ax the recn ong altho efen no rqd o prove h h was fel implicated i t crim in ust in pre cas ‘i notng in h ic of qeion, but the esnt e, theres hi te evdene of itne th coplaan as hai een remote, . V any the wsses that e mint w Vng v any . , ~ , ln h presen se wth view t aoid yt f t of Rs 100 r s 125— the mpainnt ha tad tat th sedrhas demnded and accpted Rs 10- ormally c hin tt If finl pceedig, " especray tin deand f tax an be ced y desiting Rs 100/ or s 125/— then wy some perso wr demand brib a ome peson wrl give brie th same I e Rs 100/— This Is the matter o deposrt of t f Rs 100l- Rs 1/— but as per t videne cmpainant It was o cosrng fle reltig to t which was oerwrs urrig prceedi, ugh dce was t ' euire t tat wy he alsy n he e .._gf cause for implicated the accused in such a heinous offence, even sufhcient for termination of service of the public servant. . vidence of Sachhanand (PW-2) subStantiaIIy corroborated by the ‘ documentary evidence and evidences of M.S.Paikra (P.W-3)qand Murli ajaj (P.W-6) are sufhcient for drawing inference that accused has demanded and accepted Rs.100/— which was recovered from drawer o him. fter appreciating the evidence available on record, learned Add'itional Sessions Judge/Special Judge has convicted & sentenced the’accused s aforementioned. Conviction of~the accused is based on Iegal, credibie and clinching evidence sustainable under the law. On close scrutiny of oral and documentary'evidence, l’ do not find any iiiegalityin conviction & sentence of the accUsed. . COnsequentIy, the appeal being devoid of merit is liable to be sis d i arin isms. ’ ' Sd/- T. P. Sharma Judge r ‘ w ‘ i E B f . A a dimsed an s ccodgly dised 1