1 IN THE HIGH COURTOF CHHAmSGARH AT BILASPUR CRIMINAL APPEAL N0. ^.t°.OF2002 APPELLANT (Accused) (OnBail) Madan Ram S/o. Shri Lalu Ram Arya, Inspector,Weight & Measure R/o. BhawaniNagar, Rajnandgaon, (CG). Versus State ofChhattisgarh Thr.Police ofP.S Special Establishment Lok-Ayukta karyalaya, Raipur, (CG) Appeal U/s. 374(2) of Code of Criminal procedure. RESPONDENT A<_ A.?.< HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. IVIr. Justice Pritinker Diwaker) Criminal Appeal No. 270 of 2002 APPELLANT Madan Ram VERSUS RESPONDENT State of Chhattisgarh ^t Post for pronouncement of the judgment on ^ .4.2011 . Sd/- Pritinker Diwaker Judge "7i (?." ^- |»€ c HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 270 of 2002 APPELLANT RESPONDENT VERSUS Madan Ram State of Chhattisgarh Shri Satish Verma counsel for the appellant. Shri Akhil Mishra Dy. GA for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT ( ^ .04.2011) This appeal has been filed against the impugned judgment and order dated 28.2.2002 passed by Special Judge/ Additional Sessions Judge, Raipur in Special Criminal Case No. 09/1997 convicting the accused/appellant under Sections 7, 13 (1) (d) and 13 (2) of the Prevention of Corruption Act and sentencing him to undergo rigorous imprisonment for one year and pay fine of Rs. 1000, in default of payment of fine to further undergo simple imprisonment for three months, on each count. 2. Facts of the case in brief are that at the relevant time the appellant wasposted aslnspector (Weight and Measurement) at Raipur. Complainant namely Sanjiv Agrawal (PW-1) was having the licence of "C" Class Instruments Repairing Work of the Machines in the department of Weight and Measurement. On 16.10.1996 a writtencomplaint (Ex. P-2) was made by the complainant to the Superintendent of Police (Lokayukta) Raipur alleging that the accused/appellant who was working as Inspector (Weight and Measurement) was illegally harassing him for last two years as a result of which he had suffered financial loss and mental agony. Thbugh the complainant approached the accused/appellant on several occasions, he had not allotted him the work and was demanding Rs. 400 as bribe for the said purpose. It is alleged that the complainant did not want to give this bribe amount to the accused/appellant and in order to create an example in the society he made a request for taking appropriate INBN^" 2-— action against him. On receiving the said complaint, a tape-recorder was given to him for recording the conversation between the accused and the complainant. The complainant took the said tape-recorder along with him and again approached the accused/appellant at about 12.30 p.m. on 16.10.1996 itself. Conversation between the accused and the complainant was recorded. Complainant then went to the office of Lokayukta where the written complaint Ex. P-1 was taken from him. After receiving the aforesaid written complaint, Panchnama of tape recorder (Ex. P-3) was prepared. Transcription of the conversation between the accused/appellant and the complainant was made vide Ex. P-4 and then after calling the independent officers namely B.B. Dixit and Mahavir Prasad Agrawal, commercial tax officers, written complaint of the complainant was shown to them and pre-trap Panchnama Ex. P-5 was prepared. Tape recorder was seized vide Ex. P-6. After constitution ofthe trap party atl the formalities for laying the trap were completed. Demonstration of test by applying phenolphthalein powder on the four currency notes of 100 denominations was made and then the trap party went to the office of the accused/appellant in the evening hours. Complainant Sanjiv Agrawal (PW-1) entered the office of the accused/appellant, handed over the amount to him and after receiving the signal from him the trap party also entered the office and seized the money from the table of the accused/appellant. Seizure Panchnama Ex. P-7 was prepared and the currency notes were seized by the trap party vide Ex. P-14. Both the hands of the accused/appellant were washed in Sodium Carbonate solution which ultimately proved positive. Further investigation was taken up by one Satish Kumar Dubey (PW-10), After examining the witnesses and obtaining sanction to prosecute the accused/appellant the charge sheetwas filed on 10.4.1997. 3. So as to hold the accused/appellant guilty, prosecution has examined 10 witnesses in supportof its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, one Ajay Kumar Pathak (DW-1) has also been examined by the defence in support of its case. The accused/appellant however has taken adefence that the alleged amount of Rs. 400 was never demanded by him but it was ^ -s- forcefully thrusted by the complainant in the pocket of his pant. He then took out the money from his pocket and put the same on tbe table asking the complainant to come to him on the next day to collect the receipt as the office time was over. 4. After hearing counsel for the parties, the Court below has convicted and sentenced the accused/appellant as mentioned above. 5. Counsel for the appellant submits that the appellanthad never demanded any bribe amount and it was put by the complainant in his pocket saying that certain official work was to be carried out. He submits that immediatelythe accused/appellant took out the money and threw the same onto the table. He submits that the prosecution has failed to prove the factum of demand and acceptance of the bribe amount by the accused/appellant. He submits that on the date of incident no work whatsoever was pending with the accused/appellant and therefore the question of demanding any bribe amount does not arise. He submits that for issuing the work order or allotting any work the accused/appellant was not competent and therefore also question of demand of any bribe does not arise. He submits that the chemical solution by which hands of the trap party were washed was not preserved by the prosecution as is clear from Ex. P-5 and no witnesses in respect of the pre trap Panchnama and the proceedings thereof have been examined by the prosecution. He submits that vide Ex. P-4, transcription of the alleged conversation between the accused/appellant and the complainant has been made but the prosecution has failed to prove as to how and when it was made. He submits that when cassettes and the tape recorder were seized vide Ex. P-6, no time is mentioned in the said document which is fatal to the case of the prosecution. He submits that the complainant was in the habit of making complaints against various officers of the department and extract work from them by putting under threat. He submits that in the present case also when the accused/appellant refused to succumb to the pressure of the complainant, he has been implicated in a false case. He referred to the statement of Ajay Pathak (DW-1) V.-'i^<i i, -^- and submits that various documents have been exhibited by this witness and his evidence cannot be discarded on any ground especially when no evidence to the contrary has been adduced by the prosecution. 6. On the other hand counsel for the respondent supports the judgment impugned and submits that demand and acceptance ofthe bribe amount has been proved by the prosecution beyond reasonable doubt. He submits that non examinationof the police constable who prepared the solution of phenolphthalein and sodium carbonate at the time of pre trap Panchnama is of no consequence because the trap witnesses have fully supported the case of the prosecution. According to him, the appellant has failed to point out as to whether non examination of the said police constable in relation to pre trap Panchnama has caused any prejudice to the accused/appellant. He submits that if the prosecution has failed to examine the said witness, the accused/appellant was at liberi:y to examine the said witness in his defence. He submits that the accused/appellant being an inspector of Weight and Measurement was fully competent to allot the work to the complainant and similarly situated persons. According to the State counsel this fact has been clarified by Ajay Pathak (DW-1) in paragraph 14 of his deposition where he has admitted the fact that the camps are organized by the department after his approval. He submits that theappellant was in a position to oblige the complainant for which he had demanded commission to the extent of 25 per cent. He submits that minor contradictions and omissions in the statement of Mahavir Prasad (PW-4) have to be ignored by this Court because on the main points he has fully supported the case of the prosecution. He further submits that the entire case of the prosecution is duly corroborated by the complainant Sanjiv Agrawal (PW-1) and Mahavir Prasad (PW-4) and Investigating Officer namely Satish Dubey (PW-10) and all ofthem have stated against the accused/appellant. He submits that even the appellant can be convicted merely on the basis of the statement of the investigating officer. In respect of defence of the accused/appellant which has been taken by him, it is argued that if the complainant gave any amount as advance deposit to the appellant and the appellant refused to keep the same by saying that the office time was over and he could collect the receipt on the next morning, burden lies on the accused/appellant that the said amount was not towards the illegal gratification. According to him no such procedure has been prescribed by the department and that the '7^- accused/appellant has failed to establish the same by adducing anyoral evidence or by filing such receipt. Hesubmits that when the appellant has filed the documents Ex. D-1 to Ex. D-11, he could have fited the documents also showing the procedure being followed by the department in accepting the money towards the charges for anything. He submits that FSL report Ex. P-23 is positive which has been duly proved by the prosecution. He submits that as per the provisions of Section 293 of the Code of Criminal Procedure report of Forensic ScienceLaboratory is admissible without being proved by evidence and if the appellant has any objection, he could have called the same in evidence but as no objection was raised at the time of evidence before the trial Court, the appellant is now estopped from doing so at this stage. 7. Before dealing with the evidence adduced by the prosecution and the defence it would be appropriate to refer to the complaint Ex. P-2 dated 16.10.1996 made by the complainant Sanjiv Agrawal (PW-1). In his application addressed to the Superintendent of Police (Lokayukta) Raipur it has been mentioned that the accused/appellant was working as Inspector in the Weight and Measurement department at Raipur and for last two years he was harassing him which resulted not only in financial loss but mental agony as well. He has stated that despite his approaching the accused/appellant personally on several occasions and making written requests, he had not allotted him any work and was demanding Rs. 400 as bribe. He has stated that as he wanted to give the said amount through the office of Superintendent of Police (Lokayukt) to curb such social evil, he requested for appropriate action against the accused/appellant. Based on the above complaint, a tape recorder was given to the complainant vide Ex. P-3 and after recording the conversation between the complainant and the accused/appellant another report Ex. P-1 was reduced to writing by the complainant on 16.10.1990 itself in which after reiterating the factum of demand of bribe, it has also been mentioned that after receiving the tape recorder from the department the complainant had again approached the accused/appellant in his office where he again demanded Rs. 400 and then the complainant had assured him to give the same at about 3 p.m. Transcription of the conversation between the accused/appellant and the complainant is Ex. P-4 which has beeri duly proved by Sanjiv Agrawal (PW-1) goes to show that somewhere the accused/appellant made a demand for Rs. 400 and somewhere on percentage basis forallotting the work to the complainant. ^ -6- Complainant Sanjiv Agrawal (PW-1) has stated in his court statement that he knew the accused/appellant and on the date of incident he was working as Inspector in Weight and Measurement department and the said department used to organizevarious camps for repairing the instruments meant for weights and measurement. He has stated that despite his oral and written requests, no work was allotted to him and when he had again approached the accused/appellant, he demanded Rs. 400 as bribe. He made a complaint Ex. P-1 before the Lokayukta and then another complaint Ex. P-2 was also made by him. He has stated that conversation between him and the accused/appellant was recorded in the tape recorder which was handed over by him to the Lokayukta police and that he gave them four currency notes of 100 denomination. Phenolphthalein powder was coated on those cyrrency notes and after completing the formalities at about 3.30 p.m. he went in the office of the accused/appellant and gave him Rs. 400 as bribe and after accepting the money the accused/appellant returned to him Rs. 100 asking to spend the same on himself. He refused to accept the said money saying that he was not in need of money but he needed the work in the camp. He was told by the accused/appeilant not to worry and that sufficient work would be allotted to him. Thereafter, a signal was given by him to the police and accused/appellant kept the amount in the pocket of his pant. Then the police officers and other persons entered the office of the accused/appellant and took out the said money from his pocket and put the same on the table. Said currency notes were then seized by the police. Phenolphthalein test was conducted, hands of the accused/appellant were washed in the sodium carbonate solution and the colour ofthe said solution turned pink. Seizure of pant and table cloth was made, spot map was prepared by the Patwari and he signed Ex. P-3 to Ex. P-11. In paragraph 11 of his deposition this witness has clarified that before giving him the tape recorder, pre trap Panchnama was prepared and transcription of the recorded version is Ex. P-9 which was duly signed by him. In cross examination this witness stood firm to what he has stated in the examination in chief. He has denied that as per the government instructions he was free to attend the camp. Sudanram (PW-2) is a constable posted in the Lokayukta office, Raipur who had taken the initial FIR from Raipur office to Bhopal where crime No. 90/96 was registered. Ajay Tripathi (PW-3) is the witness who was also having the licence like the complainant but he has not supported the case of the prosecution and has been declared hostile. Independent witness Mahavir Agrawal (PW-4) who was working as Assistant . ^^{3^. .'y ^ 1 1 ~w" J. Y .^s^^ ^' -7- Commercial Tax Officer at the relevant time has stated in his evidence that he was called from the office of S.P. (Lokayukta). When he reached the office along with B.B. Dixit, he saw that the complainant and officers were present there. According to him the complaint of the complainant was read over to him by Shri Dixit and the same was signed by him. He has stated that onecassette was also seized and played before him. After transcription, the said cassette was sealed and the Panchnama of the same was also prepared vide Ex. P-4 and P-6. Chemical powder was put on the currency notes and then pre trap Panchnama Ex. P-5 was prepared in his presence. He accompanied the trap party at about 2.30 p.m. to the office of the accused/appellant where it was informed by the complainant that the accused/appellant would come to the office in the evening. After arrival of the accused/appellant, complainant entered his office where some conversation took place between the two. Thereafter, the money was given to the accused and the trap was laid. Phenolphthalein test was done which proved positive. Panchnama Ex. P-7 was prepared and vide Ex. P-8 seizure of the tape recorder was made. Transcription Ex. P-9 was signed by him and other formalities for seizure were completed in his presence. After making this statement, he has stated that the police have not recorded his statement, and taking this statement into consideration he was declared hostile. When this witness was again cross examined, he has again supported the case of the prosecution and reiterated as to how the trap was laid by the trap party. In cross examination this witness has denied the fact of complainant giving the bribe amount to the accused/appellant in his presence. He has admitted the fact that on the basis of signal given by the complainant he had called the trap party and at that time the complainant was present in the room of the accused/appellant. He has denied the fact that after seeing the police, the accused/appellant had taken out the money from his pocket and put the same on the table. According to this witness, apart from the table cloth and pocket of pant of the accused, the hands of the accused/appellant were washed by members of the trap party in the sodium carbonate solution. In paragraph 9 of his deposition, this witness has stated that he was not aware of the fact that the money was thrusted in the pocket of the accused/appellant. In the last paragraph he has stated that currency notes were seized from the table and at that time 4-5 persons already present there were annoyed with the complainant saying that he was implicating the accused/appellant in a false case. ..^?asN2 /^^ /€.."1 f '^,. V S / / Li^^s <S) -g~ Narayan Singh Kanwar (PW-5) - Dy. S.P. in the office of Lokayukta, Raipur has stated that he received the complaint of the complainant on 16.10.1996 and to verify the authenticity of the same a tape recorder was given to the complainant and Panchnama Ex. P-3 to this effect was also prepared. In the afternoon, complainant returned with the said tape recorderand in presence of Panch witnesses from the office of the Commercial Tax Department, tape recorder was played and other formalities were completed. He has stated that the trap party reached the office of the accused/appellant where an information was given that the accused/appellant would come after sometime. In the evening when the accused/appellant came to his office, after receiving signal from Mahavir Agrawal, members of the trap party entered his office, introduced themselves to him and then he took out the money from his pocket and put the same on the table. Formalities of test were done and the seizures were made. In cross examination also this witness has stated the same thing as in the examination in chief. Jitendra Dama (PW-6) - the stenographer of the Lokayukta office who had reduced the transcription to writing has supported the case of the prosecution. Chandrabhan Chouhan (PW-7) who was the clerk in the office of the accused/appellant has stated that when he was present in his office, complainant reached there and requested the accused/appellant for issuance of certain receipts and forcibly put the amount in the pocket of the pantof the accused. According to thiswitness, the accused/appellant had asked the complainant as to what he was doing. The accused/appellant had also asked the complainant to deposit the requisite amount after the work is done and then took out the entire amount from his pocket and put the same on the table. Meanwhile, trap party reached there. According to this witness, the complainant wanted to get the accused/appellant trapped by making the plan therefor in advance. Chemical test was performed and certain documents were seized in the presence ofthis witness. In paragraph 3 of his deposition, this witness has stated that he stayed in the office as the accused/appellant wanted to give dictation of certain letters to him, and on the date of incident accused/appellant and Deputy Director Shri Pathak had gone to Mandir Hasod and returned at around 5.30 - 6 p.m. Ran Bahadur (PW-8) - the clerk in the office of law department is the witness to sanction vide Ex. P- 18 has duly supported the case of the prosecutjon. Anup Kumar Sahu (PW-9) is the Patwari who prepared spot map Ex. P-10. Inspector - Satish ^e^^.. Sl ^ ^col -^— Kumar Dubey (PW-10) is the investigating officer who has duly supported the case ofthe prosecution and described the procedure followed. In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused/appellant has stated that it is not his work to take the licence holders to camp but they themselves are required to reach there. He has stated that allotment of work is not in his jurisdiction and the notice regarding holding of camps is displayed in the notice board. He has stated that the complainant himself had thrusted the amountin the pocket of his pant and after taking out the amount he had put the same on the table saying that he would issue the receipt next day. He has stated that the complainant used to violate the rules and on making him understand he used to utter abusive words and pick up quarrel. In last paragraph he has stated that on the date of incident the complainant had come to his office saying that the work of the businessmen was to be done and asked him to issue the receipts, on which he asked him to come on the second day as the office time was over. Thereafter, the complainant came near his table and thrusted the money in his pocket. Thereafter, objecting to this act of the complainant, he took out the money from his pocket saying that he would issue the receipt on the next day and put the money on the table. Meanwhile, complainant left the office and trap party came there. He has stated that for repairing work money is deposited in advanceand the receiptfor the same is issued. He has stated that he had no authority to allot work in favor of the complainant. Ajay Kumar Pathak (DW-1) has stated in his evidence that he knew the complainant who was having the licence for repairing machines. He has stated that he received the charge in the year 1996 and when he saw the files, he found that in the year 1994 also thecomplainant had misbehaved with one Devangan and Sarathe and even in the year1997 he had misbehaved with him also, information of which was given to his superiors and for that his licence was suspended for about 8 months. He has stated that as the file in respect of the complainant was not traceable, he had brought with him the photo copy of the same. After getting permissjon to adduce the same as secondary evidence, this witness has exhibited those documents as Ex. D-1 to D-11 which are the internal correspondence between him and the complainant, copy of the show cause notices issued to the complainant, copy of official direction issued to all the departments informing that licence holders were not doing theirjob, ^f j -/b— complaint regarding misbehaviour of the complainant, threat given by the complainant to one of the employees etc. 8. Minute examination of the material available on record goes to show that the accused/appellant who at the relevant time was posted as Inspector (Weight and Measurement) Raipur had demanded bribe from the complainant - the licence holder of "C" Class Instruments Repairing Work of the Machines for allotting him work. The transcription of the recorded version between the complainant and the accused/appellant (Ex. P-4) goes to show that first the appellant asked for Rs. 400 and then as commission at the rate of 25 per cent. This Court is not in agreement with the argument of the counsel for the appellant that the complainant had forcefully