^ :'a?% HIGH COURT OF CHHATTISGARH: BILASPUR Criminal Appeal No.935 of 2002 APPELLANT: Eman Kumar Chandrakar (since deceased) through his legal representatives Versus RESPONDENT: State of Chhattisgarh ,-fe POST FOR JUDGMENT ON 09'" SEPTEMBER, 2011 w ^i ~:::s"^ .^•'^ Sd/- Prashant Kumar Mishra Judge <s£^ !f t§te,r w" .SB^if;.''!'1 J,,,|L w i )liiM1 ^Wi^SSs^^sSS •rtl-wrsMBBli^B'WI! ;a^^^^^^^ii^^^^^^ei^^;:'s>':^^^:ffi HIGH COURT OF CHHATTISGARH AT BILASPUR •^^^'^s^ •^^S^SsiSS^SSf, K ~f •i.ii Criminal Appeal No.935 of 2002 APPELLANT: Eman Kumar Chandrakar (since deceased) through his legal representatives Versus RESPONDENT: State of Chhattisgarh Present: Smt. Hamida Siddique, counsel for the appellant. Shri Avinash K. Mishra, Panel Lawyer for the State/respondent. JUDGMENT (Delivered on o3A September, 2011) PRASHANT KUMAR MISHRA, J. 1. Appellant, Eman Kumar Chandrakar, (now represented by his legal heirs) has preferred this criminal appeal under Section 374 (2) of the CrP.C., against the impugned judgment dated 29 August, 2002 passed by the 1st Additional Sessions Judge & Special Judge, Durg, in Special Case No.8/2000 whereby learned Additional Sessions Judge convicted the appellant under Section 7 and 13 (1)(d) read with section 13 (2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and sentenced him to undergo R.l. for 6 monfhs & to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.l. for 15 days and to undergo R.l. for one year and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.l. for 15 days, respectively. Sentences were directed to run concurrently. 2. Case of the prosecution, in short, was that the accused/appellant was posted as Surveyor in the office of the Municipal Council (for short 'the '! "'Municipality'), Dallirajhara. Complainant Adhnu Ram Sahu (PW-4) had ;': !' 11 B;!!ffi»SBSji» ^s^S^ applied for No Objection Certificate (for short 'NOC') for obtaining electricity connection for the house belonging to his father and for this purpose, he had submitted duly filled in declaration and application form with the Municipality on 6-11-1998. The accused/appellant demanded Rs.900/- as illegal gratification for issuing NOC. The complainant informed the Special Police Establishment (Lokayukt Office) about the demand and made a complaint vide Ex.-P/18 on 9-11-1998. For recording conversation between the complainant and the accused/appellant, a micro cassette and tape recorder was handed over vide Ex.-P/S and the tape recorded conversation was seized vide Ex.-P/17, written text ofwhich is Ex.-P/6. The complainant presented 8 currency notes of Rs.100/- and 2 currency notes of Rs.50/- and after making necessary preparation, a trap was laid. The accused/appellant was caught red handed immediately after accepting the bribe. 3. Both hands of the accused/appellant were dipped in Sodium Carbonate Solution which turned pink and the seized currency notes also turned pink. The shirt in which currency notes were kept by the accused/appellant also turned pink and on tallying the numbers of the currency notes, they tallied with the notes which were kept by the complainant for handing it over to the accused/appellant. Seizure of currency notes were made vide Ex.-P/11 and seizure of the shirt was made vide Ex.-P/12. NOC register of the Municipality was seized in which the name of father of the complainant was registered at page NQ.52, Sr. No.2899 and the application submitted by the complainant was proved as Ex.-P/14A, NOC as Ex.-P/14B & Ex.-P/14C and other |N|i,i!iti:i;iii(ir -J ..;:» !»S»- ik::;.!-^;4.-:}-<:^^I^ !;??^!^''-:M:^3^'?' ^i-fl^i^^;.;^^*:: documents concerning NOC were proved vide Ex.-P/14D, Ex.-P/14E, Ex.-P/14M&Ex.-P/14H. 4. After receipt of the report of the FSL vide Ex.-P/19A & Ex.-P/20 and upon completion of other formality, FIR was registered at Crime No. 136/98 vide Ex.-P/22. Service book, joining report etc. of the accused/appellant were seized which have been proved as Ex.-P/S. After recording statements of witnesses and completing investigation, charge sheet was filed. 5. In the course oftrial, the prosecution examined K.D. Chandrakar, Chief Municipal Officer as PW-1, Panch witness J.R. Bhoi as PW-2, Panch witness G.P. Agrawal as PW-3, complainant Adhnu Ram as PW-4, complainant's father Kewal Singh as PW-5, Constable Pushpraj Singh as PW-6, Constable Charan Singh as PW-7, Constable Narayan Prasad as PW-8, Patwari Bharatlal Sahu as PW-9 and Investigating Officer R.L. Armo as PW-10. The accused/appellant abjured his guilt and stated that he has neither demanded any amount nor received any illegal gratification. He has examined time keeper of the Municipality Rajendra Kumar Sahu as DW-1. 6. After hearing counsel for the respective parties, the trial Court convicted and sentenced the accused/appellant as mentioned in paragraph-1 ofthisjudgment. 7. Learned counsel for the appellant argued that demand of illegal gratification has not been proved and in fact, the allegation of demand was made against one Dinesh Singh and Chandrakar Babu and not against the appellant. It has also been argued that sanction to IR]!;: niii)n; 4 id.i.t prosecute the accused was given in mechanical manner and the investigation was not carried by the proper authority. According to the appellant, mere proof of receipt of money without there being any proof of demand of bribe is not sufficient for convicting the accused/appellant. Learned counsel has relied on decisions in the matters of Panalal Damodar Rathi Vs. State of Maharashtra , Banarsi Dass V. State of Haryana , T. Subramanian Vs. The State of Tamil Nadu and V. Venkata Subbarao Vs.State represented by Inspector of Police, A.P. . 8. There is no dispute that the accused was public servant at the relevant time and was posted as Surveyor in the Municipality which has been proved from his service book (Ex.-P/3) and other documents. 9. This Court shall first deal with the argument regarding sanction beihg mechanical and it isvitiated. In this connection, document (Ex.-P/1) is required to be seen. The sanction order has dealt with the allegations in detail and all the necessary facts concerning the complaint and consequent trap has been mentioned therein, therefore, it cannot be said that sanction accorded by the competent authority was mechanical. 10.The main thrust of the argument raised by learned counsel for the appellant is regarding failure of the prosecution to prove that the accused/appellant has demanded bribe. 1t- f£y^ 1 AIR 1979 SUPREME COURT 1191 22010CRI.L.J.2419 3 AIR 2006 SUPREME COURT 836 4 A1R 2007 SUPREME COURT 489 lWilr'5'T-' B8%|^^_ •.^.y^^^^ 11.1n the complaint (Ex.-P/4), the name of one Chandrakar clerk is mentioned as the person who has demanded bribe. The trap was laid on 10-11-98. The proceeding ofthe trap has been proved as Ex.-P/9. Written text of the tape recorded conversation has been proved as Ex.- P/6 in which it is mentioned that the said written text is of the. conversation between the accused and the complainant. This document was prepared on 9-11-98 i.e. a day before the trap was laid. In the Preliminary Panchanama (Ex.-P/S) and the trap proceeding Panchanama (Ex.-P/9) also the name of the accused/appellant is mentioned. 12.The complainant (PW-4) has stated that the Head Clerk Dinesh Singh demanded Rs.800/-. When he was going out of the office, the accused met him and asked him about his work. He took the complainant to one corner of the office and said that he has to give bribe of Rs.900/-. When the complainant asked him as to what would be the amount for which receipt would be issued, the accused/appellant said that receipt of Rs.250/- would be issued and the remaining amount shall belong to him. However, in cross-examination, the complainant has stated that he has moved two applications before Lokayukt and that first complaint was made against Dinesh Singh to the effect that he is demanding Rs.800/- and the entire preliminary Panchanama for the trap was prepared in the name of Dinesh Singh and the tape recorder was handed over to him for recording conversation between him and said Dinesh Singh. It appears, since the complainant has developed a new ^tory about demand being made by Dinesh Singh, he states in the Court that he has moved two complaints; meaning thereby that one ;- \ A- EW~tV complaint was against Dinesh Singh and the other exhibited in the Court i.e. against present appellant. He has also stated that after coming to the Municipality, he was searching for Dinesh Singh, however, he could not meet him and before lodging the complaint and visiting the office of Lokayukt, he had never met or had any talk with the accused/appellant. According to the complainant, the accused asked him as to why your work is not accomplished and that he can get it done and at that time, he started the tape recorder. When the tape recorded conversation was operated in the Court, he said that he is not able to understand the conversation because it is not clear. He failed to recognize his own voice either in Article 'A' which is a micro tape and in Article 'B' cassette tape recorder. He has also stated that he is not aware as to how many Chandrakar Babus are working in the Municipality and further that it is true that the officer authorized to issufi NOC is KD Chandrakar. In para-14 of cross-examination, he has made specific statement that illegal gratification was demanded by clerk Dinesh Singh and not accused Chandrakar Babu, however, in the same breath, he says that when he went along with tape recorder, Chandrakar Babu had demanded illegal gratification. In para-18 of his evidence, he has stated that in the Municipality, the fees for issuance of the NOC and the Survey are separately taken and the required fee of NOC is Rs.250/- and for the survey, it is Rs.650/- and thus, total Rs.900/- are needed for obtaining NOC. In para-19 of cross- examination, this witness again reiterates his statement that he has made complaint against clerk Dinesh Singh. ^ ^ lHii"ii; rsini]ir ''^;'sa!KVSSSSSSSSSg3SSSff ;4I: k 13.From the above narration ofthe evidence given by the complainant in the Court which is in contrast to his complaint and his case diary statement, the points on which contradictions emerge are with respect to the complaint being initially lodged against one Dinesh Singh; there are more than one Chandarkar Babu in the Municipality and lastly, the required fee for NOC is Rs.250/- and the remaining Rs.650/- was for conducting survey. 14.This Court shall now appreciate the evidence of other witnesses to ascertain the credibility of the evidence given by the complainant in the Court to cull out as to whether departure made by him is with an object to save the accused or he is speaking truth in the Court and the complaint lodged by him against Chandrakar Babu was a false complaint. 15.PW-1 K.D. Chandrakar is the Chief Municipal Officer of the concerned Municipality. This witness stated that there are 4 persons by surname "Chandrakar" working under him. In the next part of his cross- examination, he says that there are 2 Chandrakar Babu in his department, who were clerk and that the accused/appellant is not a clerk. However, nothing has been asked to this witness about Dinesh Singh and as to whether Dinesh Singh is the person authorized to issue NOC. 16.PW-5 Kewal Singh is the father ofthe complainant and in whose name NOC was to be issued. This witness says that he had applied for grant of NOC before the Municipality about 2 years back, however, he is not aware of the development as according to this witness complainant ^(f; €) ^ass.^g,.... i..^-. •;;%---i;-w^y^ ^! Adhnu Ram was taking care of entire affairs. It is to be seen that application for obtaining NOC was moved on 6-11-98. 17.PW-10 R.L. Armo is the officer in the Lokayukt office under whose supervision trap was laid. He has proved the complaint Ex.-P/18 which was presented by the complainant before the S.P., Lokayukt. After proving the entire proceeding of preliminary Panchanama, trap, seizure etc., he says that he has recorded the statements of the complainant and other witnesses as it was told to him by the witnesses and he has not added or deleted anything in their statements. A suggestion has been made to this witness that the Chairman of the Municipality is authorized to issue NOC whereas such suggestion has not been made to PW-1 K.D. Chandrakar, who is the Chief Municipal Officer. He also says that the written text of the tape recorded conversation was taken down as per the instructions of the complainant himself. A faint suggestion was made in the last line of the cross-examination that the complainant had initially lodged complaint against Dinesh Babu. However, this suggestion has been denied by him. 18.1n his examination under Section 313 of the Cr.P.C., the accused/ appellant has denied the seizure of any currency note from his shirt's pocket and has said that he has been falsely implicated. However, he has not made any statement that he is not authorized to issue NOC. 19.From the above apRrecjation, it appears that the complainant lodged complaint against Chandrakar Babu and the story regarding complaint having been made against Dinesh Singh is an after thought. There is absolutely no reason as to why the Investigating Officer PW-10 R.L. ^ t >?• ^; ;i|BISBaia881is!,te; Armo would prepare a complaint against the accused when he is not known to the accused and no question has been asked from PW-10 R.L. Armo that in fact the complainant had gone to lodge a report against Dinesh Singh, but he was forced to write a complaint against Chandrakar Babu. In his entire statement, but for a single line suggestion at the end of his examination, nothing has been asked that he has falsely implicated the accused whereas, in fact, the complaint was lodged against Dinesh Singh. In fact, no question has been asked to the Chief Municipal Officer PW-1 K.D. Chandrakar to the effect that any Dinesh Singh is working in the Municipality and he is authorized to issue NOC. It appears that the complainant, for the reasons best known to him, has tried to twist and divert the prosecution case after having lodged the complaint and setting law in motion to get the accused trapped. Thus, new story has been developed by the complainant in his evidence in the Court thaf initially it was Dinesh Singh, who demanded money and he lodged complaint also against Dinesh Singh appears to be an after thought and unbelievable. It further appears that to save himself the complainant also makes allegation of demand of bribe against the accused, however, very cleverly he says that at the first instance the demand and the complaint was against Dinesh Singh and in the same breath, he says that when he went to the Municipality,. Dinesh Singh left the office and he met the accused and- he demanded money. If the entire evidence is considered, it appears that a demand was, in fact, made by the appellant and the complainant has developed a new story to save the accused/appellant. It is probably because of this attitude of the 1E11|Tf'f«ff 10 •si-tgs3i-s?*- sssSSSs^' complainant, no question has been asked to this witness i.e. PW-4 Adhnu Ram that he has falsely implicated the accused. 20.1n the opinion of this Court, on correct appreciation of the entire evidence the prosecution has fully proved the demand of illegal gratification made by the accused/appellant and the argument raised by learned counsel for the appellant that demand of illegal gratification is not proved deserves to be rejected. 21.Laying of trap, recovery of currency notes, chemical test of hands and shirt's pocket of the accused as well as of the currency notes have been proved by the prosecution and thus, the demand as well as acceptance of illegal gratification has been fully proved against the accused/appellant. 22. Lastly, learned counsel for the appellant has relied on the judgments on the point that mere recovery of the amount of illegal gratification is not sufficient to uphold the conviction unless demand of illegal gratification is proved, however, since this Court has already found that demand of illegal gratification by the accused has been proved beyond all reasonable doubts by the prosecution, the judgments relied by learned counsel for the appellant have no application in the facts of the present case. 23. tn the result, the instant appeal being bereft of any substance fails and is hereby dismissed, ——— Sd/- Frashant Kumar Mishra ~—-—' Judge Barve ^Ww •""""!"•:"*'is"{'Ba,,iB^[