't^ HIGH COURT OF C±LHATT)SGARHAT BILASPUR Single Bench: Hon'ble Shri Radhe Shvam Sharma, J. Criminal Appeal No.263 of 1996 Appellant versus Respondent The State of Madhya Pradesh through Police Station : Special Police Establishment, Lokayukt Office (MP), Bhopal, Unit Bilaspur (MP) (Now Chhattisgarh) Kantaram Ramteke, S/o Ramanand Ramteke, aged 30 years, Forest Range Officer, Village Jetga Range, District Bilaspur (MP) (Now Chhattisgarh) Present: Shri MPS Bhatia, Dy. Govt. Advocate for the appellant/State. Shri Arun Kochar, counsel for the respondent. ORAL JUDGMENT (Delivered on 01st December, 2011) The instant appeal preferred by the State/appellant is directed against judgment dated 26 June, 1995 passed by the First Additional Sessions Judge/Special Judge, Raipur in Special Criminal Case No.64/91, whereby the learned Special Judge has acquitted accused/respondent Kantaram Ramteke of charges framed under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention ofCorruption Act, 1988 (henceforth 'theAct, 1988'). 2. Case of the prosecution, in brief, is as under: The respondent was working as a Forest Range Officer in Forest Range Jetga, District Bilaspur. Complainant Mohitram (PW-13) hadpurchased wood from Forest Depot and kept it in his house. The respondent threatened Mohitram (PW-13) that the wood was stolen from the forest and he would seize the same. Hedemanded sum of Rs.1,000/- as bribe from the complainant. Complainant Mohitram (PW-13) agreed to pay Rs.500/- to the respondent by evening. Since, complainant Mohitram (PW-13) was not inclined to satisfy the demand of bribe, therefore, he made a complaint (Ex.P-2) against the demand before S.K.Verma •^- ^J (PW-12) Dy. Superintendent of Police, Lokayukt, Bilaspur. S.K.Verma (PW-12) called two panch witnesses, namely, B.P.Sharma (PW-10) and C.L.Banjare (PW- 8). A pre-trap demonstration was arranged, wherein solution of sodium carbonate was prepared in a glass. On dip of a water-paper, colour of the solution did not change. Thereafter, another piece of paper containing phenolphthalein powder was again dipped in the solution ofsodium carbonate, colourofwhich turned pink. Pre-trap panchnama (Ex.P-6) was prepared. After giving demonstration, the complainant was asked to present currency notes. The complainant produced Rs.500/- in denomination of Rs.100/- each. Numbers of the currency notes were recorded in the pre-trap panchnama (Ex.P-6) and thereafter phenolphthalein powder was smeared on those notes and the said notes were kept in the upper pocket of the shirt of complainant Mohitram (PW-13). He was also informed and guided as to how the trap would be arranged and as to the role which he was required to play in the trap proceedings. After preparing pre-trap panchnama (Ex.P-6) and arranging pre-trap proceedings, the trap team proceeded to the house of the respondent. The complainant was also asked to proceed to the house of the respondent and trap team also gathered around the house of the respondent at different places in order to witness the incident. Complainant Mohitram (PW-13) and his brother-in-law, namely, Buddhu Singh (PW-4) went to the house of the respondent and gave Rs.500/- to him. After receiving the trap signal, members ofthe trap team reached the spot immediately and caught hands of the respondent. Solution of sodium carbonate was prepared and hands of the respondent were washed in the solution, colour ofwhich turned pink. The solution was kept in a bottle and sealed. The currency notes were recovered from the pocket of the respondent. Numbers of those notes were compared with the numbers mentioned in the pre-trap Panchnama (Ex.P-6), which were found similar. The recovered currency notes were seized vide Ex-P/8. Another solution of sodium carbonate was prepared and pocket of the pant of the respondent was dipped in the solution, colour of which turned pink. Pant of the respondent was ll"? .t^" ;tl also seized. After trap proceedings, trap panchnama was prepared vide Ex-P/7. Dehati Nalishi (Ex-P/13) was recorded by Dy. Superintendent of Police S.K.Verma (PW-12) vide Ex-P/13 and regular FIR was lodged in Special Police Establishment, Bhopal vide Ex-P/13. Seized solutions were sent for chemical examination to Forensic Science Laboratory, Sagar. Report (Ex-P/14) was received from the Office of Director, FSL, Sagar. Ex-P/14 reported positive about the hand wash of the respondent, pocket of the respondent and right hand wash of the complainant. After obtaining sanction (Ex-P/1) for prosecution against the respondent, charge sheet was filed before the Special Judge, Raipur. Learned Special Judge framed charges against the respondent under Sections 7 and 13(1)(d) read wjth Section 13(2) of the Act, 1988. After appreciation of the evidence available on record, the learned Special Judge acquitted the respondent ofthe charges framed against him. 3. Shri MPS Bhatia, learned Deputy Government Advocate appearing on behalf of the State/appellant argued that the prosecution has proved its case beyond reasonable doubt, but the learned Special Judge has failed to appreciate the evidence adduced by the prosecution. B.P.Sharma (PW-10), S.K.Verma (PW- 12), M.K.Hiradhar (PW-7) and C.L.Banjare (PW-8) specifically deposed that the respondent had demanded bribe from Mohitram (PW-13) and Mohitram (PW-13) gave bribe money to the respondent, which was recovered from him. The respondent accepted the bribe money, which is illegal gratification. The learned trial Court has wrongly disbelieved the evidence of prosecution and the prosecution has proved its case by the evidence of the above witnesses. The testimonies of prosecution witnesses are wholly reliable. Looking to the circumstances of the case, it is established that the respondent had demanded bribe from the complainant, therefore, the finding of the trial Court deserves to be set aside. ^ rf':':'i" / .-^. ,c ~ :• 4. Shri Arun Kochar, learned counsel appearing for the accused/ respondent argued that the prosecution has failed to prove the evidence of demand of illegal gratification by cogent and reliable evidence and he supported the impugned Judgment. He further submitted that it is necessary for the prosecution to satisfy and establish that all the ingredients of Sections 7 and Section 13(1)(d) of the Act, 1988 have been made out. The prosecution has utterly failed to prove its case beyond reasonable doubt, therefore, the impugned judgment does not call for any interference by this Court. He relied on State of M.P. (Now C.G.) vs. Vijay Kumar, 2007(2) C.G.L.J. 536, State of Madhya Pradesh vs. Anil Kumar Verma, 2007(2) M.P.H.T. 458 and Banarsi Dass vs. State of Haryana, (2010) 4 SCC 450. 5. I have heard learned counsel for the parties at length and perused the material available on record. 6. The learned Special Judge observed in para 5 of the impugned judgment that the evidence of complainant Mohitram (PW-13) was not corroborated with the prosecution version. Mohitram (PW-13) deposed that Dy. Ranger Pandey demanded money from him and Dy. Ranger Pandey had threatened him for seizure of wood and thereafter his demand was settled at Rs.500/-. In examination-in-chief, Mohitram (PW-13) deposed that he had gone to vigilance office, made the written complaint (Ex-P/2) and submitted currency notes there, and thereafter, phenolphthalein powder was smeared on those currency notes and a trap demonstration was arranged in the said vigilance office. But, in cross- examination, Mohitram (PW-13) deposed that the accused/respondent had not demanded money from him and he never threatened him. After appreciation of the evidence of Mohitram (PW-13), Buddhu Singh (PW-4) and other prosecution witnesses, the learned Special Judge has acquitted the accused/respondent of the charges framed against him. 7. 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. 8. 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. 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 shitted 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 ofthe accused beyond a reasonable doubt. ...••^1,^ . ,»'^*-;»\ '^ '--tiS^-^-S:^^:. %^3ss^e (emphasis supplied) (See l/.D. Jhingan v. State ofU.P., AIR 1966 SC 1762atAIRp. 1764,para4.) f.%~5 9. 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 DamodarRathiv. 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 C.M. 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 oftainted 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 asubsequent decision of this Court also under the Preveniton of Courruption Act, in A. Subairv. 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) 7 "18. ..... The High Court held that since theSpecial Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available ih India, there was justification for non-examination ofthe 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. 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." 10. S.K.Verma (PW-12) deposed that on 24-6-1987, he was working as Deputy Superintendent of Police in Lokayukt Office, Bilaspur. On 24-6-1987, complainant Mohitram (PW-13) made complaint(Ex.P-2) before him. He had called two panch witnesses B.P.Sharma (PW-10) and C.L.Banjare (PW-8). A pre-trap demonstration was arranged. B.P.Sharma (PW-10) also deposed that in June, 1987, he was called in Lokayukt Office, Bilaspur. He had gone to that office, where complainant Mohitram (PW-13) was present. The complaint (Ex.P-2) was given to him for his perusal. After perusal, he had verified about the complaint (Ex. P-2) from complainant Mohitram (PW-13). He further deposed that during the pre-trap proceeding, the complainant submitted five currency notes in the denomination of Rs.100/- each, whose numbers were noted in the pre-trap ^-^- 1 I ^ 'JSw^^/ '^Gs^"' 1(^: 8 Panchnama (Ex.P-6). Phenolphthalein powder was smeared on the currency notes and they were kept in the pocket of the complainant. A demonstration of sodium carbonate solution and phenolphthalein powder was made there. The complainant was asked not to touch the currency notes until the accused/respondent makes demand therefor. C.L.Banjare (PW-8) also deposed in similar fashion. M.K.Hiradhar (PW-7) also deposed in similar fashion. He further deposed that Buddhu Singh (PW-4) was directed to remain present along with complainant Mohitram (PW-13) until the bribe money was given to the respondent. 11. M.K.Hiradhar (PW-7) deposed that the trap-team, complainant Mohitram (PW-13) and Buddhu Singh (PW-4) went to the house ofthe respondent. Buddhu Singh (PW-4) and Mohitram (PW-13) entered the house of the respondent and after sometime, Buddhu Singh (PW-4) came out of the house. He told that the respondent had accepted the money from the complainant. He further deposed that thereafter the trap-team entered the house of the respondent and caught his hands. Solution of sodium carbonate was prepared. Hands of the respondent were dipped in that solution, colour of which turned pink. The solution was kept in a bottle and sealed. Hands of B.P.Sharma (PW-10) were also dipped in another solution of sodium carbonate, colour of whichdid not change. The solution was kept in another bottle and sealed. On being asked by S.K.Verma (PW-12), B.P.Sharma (PW-10) searched the respondent and currency notes of Rs.500/- were recovered from the right pocket of the pant of the respondent. Numbers of the recovered currency notes were compared with the numbers mentioned in the pre-trap Panchnama (Ex.P-6), which were found similar. Another solution of sodium carbonate was prepared and the currency notes were dipped in that solution, colour of which turned pink. The solution was kept in another bottle and sealed. Right pocket of the pant of the respondent was also dipped in another solution of sodium carbonate, colour of which turned pink. The solution was kept in another bottle and sealed. S.K.Verma (PW-12) and B.P.Sharma (PW-10) also sa BISHB'SKS BSiS;?Ssasii?:: Et;"';-ES;Sai-''' ;;-:".>•:.'•'..'. BB8'1!1 »!Stfil ^siilii IEIBES ^ if-"1v IWI |||j^|^sed|jnjsimi|ar fashion and they further deposed that trap-panchnama (Ex. P-7) gstS^s^Fepared. •12. Now, 1 shall examine whether the respondent demanded sum of Rs.500/- from the complainant as bribe? 13. Complainant Mohitram (PW-13) deposed that he had purchased wood from Forest Depot. Deputy Ranger Pandey told him that he had stolen the wood from the forest, therefore, he should give him Rs.1,000/-, otherwise the wood would be < seized. The complainant agreed to pay Rs.500/- to Deputy Ranger Pandey. Thereafter, the complainant went to the vigilance office and made the complaint (Ex.P-2), where he stated that Deputy Ranger Pandey had demanded Rs.500/- q and if the money would not be paid to him, he would seize the wood, which was purchased by him from ForestDepot.In cross-examination, Mohitram (PW-13) deposed that the respondent had never demanded money from him. He further deposed that neither any threat was given by the respondent to him nor any demand of money was made by him. 14. Buddhu Singh (PW-4) deposed that it is true that he had not gone to the Rest House along with Mohitram (PW-13). He deposed that it is wrong to say thsft Mohitram(PW-13) had toldhim thatthe respondent had demanded Rs.1,000/- from him as bribe at Bus-Stand Katghora. He had not written any application for v Mohitram(PW-13). 15. Gulab Singh (PW-5) alsadid notsupport the case ofthe prosecution. He deposed that Mohitram (PW-13) had not told him that forest officers had demandedRs.1,000/-fromhimasbribe. ; 16. S.K.Verma (PW-12) deposed that he had notsent any panchwitness along with complainant Mohitram (PW-13) to the houseofthe respondent. It is true tHat he had not seen givjng mpney by Mohitram (PW-13) to the respondeijiti i..t..... •11.1. .|sl.:-tf!k!.ltl.411 ^^ 5*^. •^•":. ,/' ,1- ! ^A7/' 10 B.P.Sharma (PW-10) deposed that Mohitram (PW-13) did not give money to the respondent before him. 17. Having examined the evidence of Mohitram (PW-13), Buddhu Singh (PW- 4), Gulab Singh (PW-5), B.P.Sharma (PW-10) and S.K.Verma (PW-12), l find that they have failed to support the case of the prosecution. From their evidence, it is not proved that the respondent demanded money from Mohitram (PW-13). Rest of the evidence on record though brings out the fact of recovery of currency notes from the pocket of the respondent and on his hands being dipped in the solution of sodiumcarbonate test of phenolphthalein powder was found to be positive yet they themselves are not sufficient to hold that the respondent did make demand of illegal gratification of Rs.500/- and received the same from the complainant. 1 am of the view that the evidence of the other witnesses placed on record, cannot, in any way, help the prosecution in order to establish demand of money by the respondent. 18. 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. 19. So far presumption under Section 20 ofthe Act, 1988 is concerned, it is well settled that the presumption made 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 fhe 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 •^/ 11 of proof upon the accused person against whom the presumption is made under Section 20 ofthe Ac| 1988 is not akin to the burden placed on the prosecution to prove the case beyohd a reasonable doubt. 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. 20. In the instant case, the prosecution has utterly failed to prove the demand and acceptance of bribe by the accused/respondent from the complainant. Mere recovery of money from the accused/respondent by itself cannot prove the charge of the prosecution against the accused/respondent in the absence of evidence to prove payment of bribe or to show that the accused/respondent voluntarily accepted the money. 21. As per above discussion, l am of the view that the prosecution has not proved its case beyond reasonable doubt that the respondent demanded bribe from the complainant and received the same from him. The prosecution has failed to prove the charges against the respondent under Sections 7 and 13(1)(d) read with Section 13(2) of the Act, 1988. The learned trial Court did not commit any illegality or perversity in passing the impugned Judgment and acquitting the respondent of the abovementioned charges. Consequently, the appeal has no force and it is accordingly dismissed. The impugned judgment of acquittal is hereby affirmed. Bail bonds of the respondent are cancelled and sureties stand discharged. Sd/- R.S. Sharma Judge Sini/Gopal