2^ HIGH CQURT OF CHHATT1SGARH AT BILASPUR [SBLHon'bJeMr.T.P.Sharma.J.I APPELLANT Criminal Aopeal No- 2749 of 1999 Dhaniram, S/o JViayaram Satnami Kanungo, Tahsl! O^Tice. Kharasia, District: Raigarh (M.P.) VERSUS RESPONDENT State of Madhya Pradesh, Through SpsciaS Polics Estabilshmsnt, Lokayukt Office Bslaspur, Division Bilaspur (ivi.P.) Shri Sandeep Shrivastava- counsel for the apoellant. Ms. Sangite Mishra PL for ths rs3pondsnt/Stat©. CRIMINALAPPEALUNDERSECTION 374(21^^ CRIMSNAL PROCEDURE. (ORAL) JUDGMENT (26.11.2008) This appeal is dsrected agalnst the judgment of conviction and order of sentence dated 14.09.1999 passed bythe Special Judge, Rasgarh, Jn Special Case No< 1/1993 convicting the accused/appellant for the offences punishable under sections 7 of the Prevention of Corruption Act (for short 'the Acf) and sentencing him to undergo rigorous imprisonment for 6 months and pay fine of Rs.1,000/- with default stipuiation. 2. The judgment is chalienged on the ground that in the absence of any proof regarding demand and acceptance of iilegal gratjfication by the accused/appeliant, the court beiow has committed an illegality in convicting and sentencina him as mentioned above. 3. Case of the prosecution in brief is that on 30.06.1988 complainant Lakhan Lai (PW.9), a retired Pat^ari asked the accused/appellant who at the relevant time was posted as Kanungo at tahsil office Kharsiya, District Raigarh for the medical bi!l, TA. Bill ete. which were pending with hjm. in order to @ ^-y ^,^^:-" ,.\ ' discharge his duties the accused/appellant demanded Rs<500/- as illegal gratification from the complainant in respect ofthose bills. As the complainant was not ready to give any iilega! gratification to the accused, he made a written complaint to the Superintendent of Potice, Lokayukt OfRce, Bilaspur on 20.04.1989 vide Ex. P/1. Trap partv was constituted and reaction of sodium carbonate and phenolphthalein was demonstrated. The complainant produced five currency notes of 100 denomsnations before S.K. Verma, Deputy Superintendent of Police and the number of which were recorded in the preliminary Panchnama. Those currency notes were tainted with Dhenolphthalein Dowder and were kept in the riaht pocket of the pant of the complainant and he was asked to touch the same only at the time of giving to the accused/appellant on demand and thereafter give signal to the trap party by taking out handkerchief from the pocket of his shirt and moving his head. Preliminary Panchnama Ex.P/2 was prepared. Trap party proceeded to the place of inddent i.e. Tahsil OfRce, Kharsia where accused was working. Complainant went inside the office of the accused/appellant and told him that he was having the money which he wouid give in the hotel. After some time he along with accused/appeliant came out and they went to the nearby hotel of Gendlal Rathore where he ordered for the breakfast. in the hotel itseif the complainant took out Rs. 500 from the right pocket of his pant and gave the same to the accused/appellant which he kept in the upper pocket of his shirt< Thereafter, the compiainant took out the handkerchief from the pocket of his shirt and by moving his head gave signa! to the trap party< Trap party came there and introduced themselves to the accused/appellant- On being asked by the trap party about taking of bribe, accused/appellant told them that he has been implicatedMMujhe Faswa Diya". They prepared the solution of sodium carbonate by which the hands of all members of the trap party were washed but the colour of solution did not change^ The hands of the accused/appellant Q.H <-. sase^' -3- were washed with the sodium carbonate solution, its colour turned pink. The solution was sealed. Rs. 500 were recovered from the pocket of the accused/appellant vide Ex. P-3, and on taljying the number they were found correct. The currency notes were also washed in the sodium carbonate solutionthe colour of which also turned pink. On washing of pocket of shirt of the accused, the colour of the sodium carbonate solution turned pink Final Panchnama Ex. P-4 was prepared. Spot map Ex. P-6 was prepared. Dehati Nalishi Ex.P/9 was prepared and on the basis of which F.I.R. Ex.P/7 was registered. Solution was sent for chemical examination. 4. After completion of investigation documents were sent to the Sanctioning Authority and sanction to prosecute the accused/appellant was accorded by the Law Department vide Ex. P-8 and thereafter charge sheet was filed in the Court of Special Judge, Raigarh. 5. In order to prove the guilt of the accused/appellant prosecution has examined as many as 12 witnesses- Statement ofthe accused was recorded under Section 313 of the Code of Criminal Procedure in which he has denied the material appearing against him in the prosecution case and pleaded his innocence and faise impiication in the case. He has taken the defence that as he had given the notice to the compiainant on account of his being absent in the five years p!an, he was having inimical terms with him, and therefore, he has been faisely implicated in the case. He has not demanded or accepted any illegal gratification from the compiainant. 6. Heard counsel for the parties and perused the material availabte on record as well as the judgment impugned. 7. Counsel for the accused/appellant submits that the complainant was having ininnical terms with the accused/appellant since the tlme he was posted ^^ K^^.. i?s&A ^%^ "^5^ '^5 -zj- as Patwari. He has not demanded any bribe from the complainant and while the accused/appellant and complainant were sitting in a hotel, the complainant thrusted Rs.500/- in his pocketfor getting hls medical bili, TA. bii! ete. passed. In fact the accused/appellant had refused to take any bribe from the comolainant. 8. On the other hand, counsel for the respondent has supported the judgment impugned and submitted that the prosecution has proved its case by addudng reliabte and clinching evldence- P.W.-3 Rambahadur Singh, P.W. 5 R.J. Toppo, P.W.9 Lakhan Lal Shrivastava and P.W.11 S.K. Verma, Investigating Officer, have supported the case ofthe prosecution. Though the complainant has stated in paragraph 17 of his cross examination that when he tried to give something to the accused/appellant, he had refused to accept the same saying that he was having old reiationship with him and then he thrusted the money in his pocket^ yet the accused was seen by other witnesses accepting the money from the complainant. This is sufRcient for drawing an inference that the accused demanded and accepted the legal gratification from the complainant otherthan the legal remuneration. 9. In order to appreciate the contention of the parties 1 have examined the evidence adduced on behalf of the prosecution. It is not disputed that five currency notes of 100 denominations were found in the pocket ofthe accused at the time of alleged trap. On being tallied with the numbers of the currency notes which were kept in the pocket of the complainant for being given to the accused on demand which were recorded in the preliminary Panchnama, thev were found to be correct. 10. The only question for consideration is that whether the accused demanded or accepted Rs.500/- from the complainant as legaJ gratification. ^ ••^- Factum of preliminary Panchnama, final panchnama and washing of hands has not been substaintially disputed by the counsel for the accused/appellant. P.W.9 Lakhan Lal has stated in paragraph No. 5 of his evidence that he went inside the office of the accused/appellant and told him that he was having the money and it would not be possible to give the same in the office. Then they went to the nearby hotel, order for breakfast was placed, complainant took out Rs.500/- from his pocket and gave the same to the accused/appellant which he kept in the upper pocket of his shirt and then the complainant gave signal to the trap party, trap party reached there and recovered the money from the complainant P.W, 11 S.K. Verma, the Investigating Offjcer has stated in paragraph 5 of his evidence that in the hotel the compiainant gave the money to the accused/appellant which he kept in the pocket of his shirt and on being asked about accepting the bribe, the accused/appellant said that UUsne faswa D/ya" P.W.-3 Rambahadur Singh has stated in paragraph 4 of his evidence that in the hotel complasnant took out something from his pocket and gave it to the accused/appellant which he kept on the right pocket of his shirt. After a short while when the complainant gave signal to them, they went there and on being asked he told them that ^Muihe fasaya gaya haF. Witness Shri Kesharwani recovered fsve currency notes of 100 denomination from the upper pocket of the shirt of the accused/appellant. Number of those currency notes were tallied with the numbers recorded in the preliminary Panchnama the they were found to be correct. Final Panchnama Ex.P/4 reveate that Rambahadur Singh (P.W.-3) and Investigating Officer S.K. Verma (P.W.-11)have seen the complainant giving money to the accused/appellant which he kept in the pocket of the shirt. Lakhan Lal (P.W.9) has stated in paragraph 17 of his evidence that while sitting in the hote! he tried to give something to the accused/appellant but the accused refused to accept the same saying that how he was speaking as he was having old relationship with him. Thereafter, l... -<Q- the complainant thrusted the money in his pocket and gave his signal to the trap party. In paragraph 18 of his evidence he has denied that he had not thrusted the money in the pocket of the accused/appellant P.W.3 Rambahadur Singh has stated in paragraph 4 of his evidence that he saw the complainant giving something to the accused/appeilant. However he has not stated whether the complainant has given money to the accused. S.K. Verma (P.W.11) has stated in paragraph No.11 of his evidence that at the time of trap he was standing beside a pan shop which is situated at the distance of 75-80 yard from the hote! in which accused and the complainant were sitting. He has admitted in paragraph No.13 of his evidence that the complainant gave the money to the accused/appeilant. P.W. 1 S.S. Thakur has stated in paragraph 14 of his evidence that from the place where they were sitting, the inner portion ofthe office ofthe accused appeiiant is notvisible. In paragraph No.15 he has stated that the hote! in which accused and complainant were there, is situated oDDosite the office of the accused he has denied the fact that the pan shop near which SX. Verma Dy. S.P. was standing is on the other side of the road. He has also denied that he did not ao inside the hotel. Even after the statement of complainant in paragraph 17 and 18 of his evidence he has not been declared hostile. Paragraph 5 of his evidence reveals that he took out money from his pocket and gave it to the accused. Accused has not demanded any money at that time. Paragraph 17 of his evidence shows that when he tried to give something to the accused he forcefully refused to accept the same and, thereafter the complainant thrusted the money in the pocket of the accused and immediately thereafter the accused told the trap party that he has been implicated. 11. Inthis case.the prosecution is required to prove the demand and acceptance of illegal gratification by the accused/appellant beyond reasonabie ^N^ -7- doubt. Complainant (P.W.9) himself has spedfically stated in paragraphs 17 and 18 of his evidence that it is not that the accused demanded the money but he refused to accept it and thereafter he forcibly kept it in the pocket of his shirt. Immediately thereafter on being asked by the trap party he offered an explanation of having been falsely implicated. 12. The court below has not considered paragraphs 17 and 18 of the evidence of the complainant and reached a wrong conclusion by convicting and sentencing the accused/appellant as mentioned above< In the absence of fact of any proof regarding demand and acceptance of illegal gratification by the accused/appellant his conviction under Section 7 of the Act is not sustainable in law. 13. For the foregoing reasons, the appeal desen/es to be allowed and it is allowed< Conviction and sentence imposed on the appellant is hereby set aside. He be set at liberty forthwith if not required in any other case. Fine amount if any deposited by the accused/appellant be refunded to hjm. Sd/- T.P. Sharma Judge Jyo