^: ,(^ 6oj Jl^. IN THE HIGH COURT OF JUDIDfCATURE, s AT JABALPUR. Criminal ^ppeal No._^o<^^ /1996. te&S), ^UN ^2£ellant $ z^Shankerlal Soni S/o Shri -Ranicharit Soni< aged 50 years^ pccupation^ Assistant Food Officer, Korba, ,Dist» B.ii.aspur^ . ' . : . ,• At present^ Assistanf Food OffiGer^Dhaintari . DistriBt Raipur^M^P, : ' . • • . , ' . ...' -Vs- • " • • ./• ' : Respondent s ^State of Madhya Prad^sh^ through Police Station^ r Special Police Establishment, Lokayukt Office, Bilaspur^M <»?<»•. . • . . CRIMINAL APP2AL UNDER SECTION 374(2) OF THE CODS OF CRIMINAL ^OC3DURE,1973^ .' ' -. ^t <L. HI©HCOURT OF CHHATTtSeARH AT BILASPUR Befor®:Hon'bJ®Shri Justice Dilip Raosaheb beshmukh Crjmlnal ApDeal No. 1094/1996 Shankar lal Soni Vs. State of AAadhya Pradesh (now State of Chhattisgarh) Post for; 18-08-2006 Sd/- Dilip Raosaheb Deshmukh Judge ^-'- ^' 'v HI6H COURT OF CHHATTESSARH AT BILASPUR Before: H@n'bl©Shri Justice bilip Raosaheb beshmukh Criminai ADD®QJNo. 1094/1996 Shankar lai Soni Vs. State of Madhya Pradesh (now State of Chhattisgarh) Shri Prafull Bharat, iearned Counsel with Shri A,KPrasad, Counsel for th'eappetlont. Shri Parag Kotecha, Pane! Lav<r/er for the State. JU D@MENT (Delivered on this i^day of July 2006) This oppeai is directed against the judgment dated 29-06-1996 deiivered by Shri M,Y,i<hon, Speciai Judge, Bilaspur in Speciat Criminal No.02/1995 whereby the appeliant was convicted under Section-7 & Section"al3(l)(D) read with Section-13(2) of the Preventson of Corruption Act Oi^^inofter referred to as th^uAct") and wo.s sentenced to undergo rigorous imprisonment for 1 year and fine of Rs-400/- ond in default to undergo slmpte imprisonment for 3 months, 2. Briefly the prosecution story is that at the reievant time the appelbnt was as Assistant Food Officer, Korba Bajranglal was running a Fair Price Shop in S£-CL^Mudapar, Korba, There were some complaints rebting to improper distribution of foodgrains. The oppello.nt had. the notice on Bajrarig b.1 Soni in the year-1991- On 25-01-1992, Bajrarig lal Soni to the of the appellant where the appelbnt Rs-1,000/- from Bajrong ial Soni and on faiiure to do so, threatened him to forfeit the shop, Bajrang lal Soni expressed his inability' to pay the amount, Finally, a surn of Rs,500/- was settted ^ ^:- which &ajrcu'(g kxl $on| promised tp poy wrriiin 3-4 days. BoijrGmg lal Soni replied to th®notiige on 31-01-1992. He 9ave the distribution re9ister of Fair Pricie Shop to th^ appellcmt who repeated demand of Rs.500/-. Upon this Bojrang bl Spni madea complaint to Deputy Superintendent of Police (Vigilomce), Bilaspur vide Ex.P-7. A trap part/ headed by Deputy Superintendent pf Police Shri S,K.Verma and comprising of Inspector M.K.Tiwari, PW-10, R.B.Mishra. A.D.I.S. PW-4 and R.C.Shriyastava, Assistant Statistica! Officer, PW-6 was constituted. Bajrang lal Soni supplied the 5 currency notesof fts.100/- each to Inspector M.K.Tiwari. After complying with 1+ie necessary formalities regarding opplication of Phenolphtholeiin Powder to the currency notes, preparation of sodium carbonate solution etc., a trop party comprising of Inspector M.K.TiwarJ, beputy Superintendent of Police S.K.Verma, R.D,Diwan, Inspector R.J.Toppo. Head Constable Kam Bahadur ond Constable A. Ekka proceeded to the goyernment house of the appellont, Before doing so, it was ensured by Inspector M.K.Tiwari PW-10 after taking search of Bajroing bl Soni that no other artide was in his possession except Phenolphthatein Powder oipplied currency notes. Bajrang lal Soni went to the house of the oppellant. He returned soon and informed that the oppeiJant had asked him to corpe after half an hour. Thereafter, Bajran9 lal Soni was again sent to the house of the appellant while b.S*P. S.K.Verma and witness R.C.Shrivastava PW-6 stood near the boundary wall ond watched. Bajrang lal Soni went to the house of the appetlant cind stood outside the outer gate in the courtyard. After sometime, the appelloint emerged from his quarter and said n Soni, I will do your work11, After some time, Bajrang lal Soni after giving the brjbe gave a signal by coughing whereupon Inspector M.K.Tiwo.ri PW-10 went with Inspector Shri R,J,Toppo and saw that the oppellant was wearing lungi and shirt and was holding the currency notes in his left hand, On being asked, the appellant threw the notes on the bwn, Both hands of the oppellont were ^ 7f. •7 '.' • woshed in the SQdjum Carbonatesblytion whereupon the solution turned pink. The Currency notes lying in the loiwn were seized, The register of the Fair Price Shop was seized vide Ex.P-21. Notice dated 13-01-1992 sent by the oppelloint vide Ex.P-12 was also seized. After obtaining sonction vide Ex.P-13 for prosecuting the appetlant, prosecution was launched against the oppellant. 3. The oppellant abjured the guilt and pleaded false implication. The prosecution examined as many as 10 witnesses.In his examination under Section-313 of CrP.C. the oppellant took the defence that in view of the serious irregularities commined by Bajrong lal Soni Jn his fair price shop, he had already suspended the fair price shop of the Bajrang lal Soni vide order dated 31-01-1992 Ex.D-6 and had att-ached the shop to one Shri Arun ^oswami who was In-charge of a 9oyernment Fair Price Shop. On 01-02-1992 Bajrang lal Soni had while stating that he had deposited the challan for Ks.150/- thrust the currency notes in his hand, When he realized this, he immediately threw the notes. He had never demonded ony bribe from Bojrang bl Soni. In defence P,K.Jagat, Retired Accountant in Food Department at Bilaspur and M.K.Qureshi, Food Inspector were examined as D,W,-1 & &,W<-2, Relying upon the evjdence led by the prosecution, the learned trial Judge convicted osnd sentenced the oippellont as aforesaid in para-1. (Supra) 4. Shri Prafull Bharat. learned counsel for the appellant contended 1+iat antecedents of 1+ie appellant showed that he had a criminal background since many cases were pending against him in Criminal Courts, It was also urged that there was no independent witness to corroborate -rtie testimony of Bajrang lal Soni that the appellant had demanded a sum of Rs.500/- o.s illegal gratification, The evidence led by the defence clearly showed that 1+ie licence of the fair price shop of -^^B Bajrang la! Soni had already been suspended by the appellont on 31-01-1992 which negatived 1+ie testimony of Bajrong lal Soni that on 01-02-1992 the appellant accepted bribe of Rs.500/- from him.It was argued that the evidence led by the defence ond the facts and circumstances emerging from the prosecution ©videncerebutted the presumption arising against the appeilont under 5€ctiona-20(l) of the Prevention of Corruption Act, On 1+iese premises, it was urged that conviction of tlie appellant under Section-7 <& Section-13(l)(D) read wi'th SectionM13(2) of the Prevention of Corruption Act was liable to be set aside. On the other hand, Shri Ashish Shukb, leorned Sovt, Advocate argued in support of the impugned judgment 5. In Stat®of Andhra Pradesh Vs. C. Uma Maheswara Rao and anothcr reported in A.I.R.~2004«Supr@me CourtB-2042, it wos held that the expression "shaii be presumed" employed in Section-20(l) of the Preyention of Corruption Act has to be understood in tone of a command that it has to be presumed that the accused accepted the gratification as a motiye or revrord for doing or forbearing to do any officiai act etc. The only condition for drawing such a iegal presumption under Section-20 is that during trial it shou!d b@ proved that the accused accepted or agreed. to accept any gratification, Th.e Section does not say that the condition shouid be satisfied through direct evidence. Its only requirement is that it must be proved that the a.ccused has accepted or agreed to accept gratifjco.tion. In reo.ching the conclusion the Court can use the process of Inferences to be drawn from facts produced or proved which are akin to presumptions in law, Law absoiute discretion to the Court to presume the existence of ony fact which it thinks Sikeiy to haye happened, In that process, the Court may have regard to common course of natural events, human conduct, publlc or° private vis-d-vis the facts of the particu!ar M o case. Such a discretlon is clearly envisaged in Section-114 of the Evidence Act. 6. Scanning the evidence on the aboye touchstone. Bajrong lal Soni PW-7 admitted in para-14 of his testimony that 10 to 12 criminal prosecutions pending again^t him. This goes to show "riiat Boijrang laS Soni was a man of criminol antecedents. According to him, a noti<» was served upon him by the appellomt for certain irregularities committed by him in distribution of foodgrains. It emerges from his complaint Ex.P-7 that rhe appellomt had agreed to his offer and ci©mand©da bribe of Rs.500/- somewhere between 25th or 26th January, 1992. Bajrang ial Son< stated that no olher witness was present, then, However, this aJtegalion is not borne out from his testimony since it does not show anywhere that the appellant had either demanded or had agreed to accept ilfegal gratification of Rs.500/- for not suspending his fair price shop< [^-' 7. Shri R.KJagat, D.W.-l, Retired Accountant has deposed that on 26th January, 199S the material received from Bhopal for preparation of ration cards v>ere distributed to the appellant at Bilaspur. In cross- examination, hi,» testimony stood unrebutt-ed. Thus, there is no cogent and peliabje fcyidenc®on record which QO&S to show that either on25 or 26th Jaiuary, 1992, the appellant had a9reed to th®offer made by Bajro'ig lal Soni and had demanded illegal gratification of Rs.500/-. 8. The trap was laid on 01-02-1992 after a complaint being lodg^d by Bojrang lol Soni on the same cl<xy vide Ex.P-7. However document Ex.D-6 clearly goes to show that the oippellant had already suspended the fair price shop of Bajrang lal Soni due to serious irregularities relating to distribution of foodgrains and had placed tiie shop in charge —^. tt) of one Shri Arun<5oswami who was Incharge of the @ovt, Fair Price Shop, This circumstance is a pointer to the innoceyice of the appellant and shows that he was an honest ond upright Officer, 9. The testimony of M.K.Qureshi, D.W.-2, Food Inspector in para«4 clearly goes to show that after the shop of Bajrang lal Soni wos suspended by the appelloint. Bajrang lal Soni threatened the oppellant and had said that he would approach the minister, This fact coupled with the crimind antecedents of Bajrang lal Soni would have to be borne in mind while Gippreciating the evidence, 10. TTie testimony of Bajrang lal Soni PW-7 in para-7 shows that when he was sent to the house of the appellant by the tnip party, the appellant was not present in the house. Thereafter. he came out of the house. On the other hand. Inspector M.K.Tiwari PW-10 stated that when Bajrong lal Soni was sent to the house of the appellant h© returned and informed him that the appellant had asked him to come after an hour. This is in absolute contradiction of the testimony of Bajrang lal Soni in para-17 that the oppellant was not pre^nt at the house and his wife had asked him to come after sometime. It definitely shows that Bajranglal Soni has suppressed the truth. It also shows tha* in his first visit the appellant did not accept the money from him. 11. In para-5, Bajrang lal Soni clearly stated that before entering 1+ie premises of the hou^ of the appellont, five currency notes of Rs.100/- each after application of Phenolphthalein Powder were kept by D.S.P. Shri Verma in his pocket. Ashish Shrivastava. Assistant Statistical Officer PW-6 has stated that after returning from the house of 1+ie appellont Bojrang lal Soni had gone to some unknown place and had returned after hatf om hour. There is absolutely no material on s'^ record to show that after return of Bajrang lal Soni and before his being sent again to the oppellont's house it was ensured by Inspector M.K.Tiwari PW-10 that the five currency notes kept by him in the pocket of Bojrcung lal Soni were in its place and no o1+ier poper wos seen there. R.B, Mishra PW-4 has stated in para-5 of his testimony that after return from the house of the q3pellant, Bajrang lal Soni totd that 1+ie appellant had called him after half on hour ond thereafter he went home ond returned after an hour, Thus, it is extremely doubtful as to what had transpired when Bojrang lal Soni first went to the house of the o^pellant and returned. If the appelJant was present at the house as narrated by R.B. AAishra PW-4, R.C.Shrivastava PW-6 and Inspector M.K.Tiwari PW-10, it is ciear 1+iat Bajrang lal Soni was wholly unsuccessful in handing over the bribe amount to the oppelfant ih his first visit. The evidence of Inspector M.K.Tiwari, PW-10 does not show that even before his visit to the house of the appellcnt he had searched Bajrang lal Soni or that he did so when Bajrang bl Soni visited the house of the appejlant for the second time to ensure 1+iat he did not have anything except the five currency notes in his pocket, Considering the criminal antecedents of Bajrong lal Soni and the testimony of M.K.Qureshi D.W.-2 in para-4, it cannot be ruled out that after his unsuccessful first visit to the house of the appellant Bkyrang lal Soni went home with some ulterior motive to get the appellant trapped h a deceitful manner, 12. Inspector M.K.Tiwari PW-10 stated that he saw the appelfant emerging from his quarter ond heard him saying "Come Soni, I wlll do your work". It is not corroborated by any other witness, Bajrong lal Soni PW-7 did not depose about any such statement having been made by the appellant but said 1+iat the appellant had asked him if he brought the money and had demcinded 1+ie bribe, It is pertinent to note that Ashish Shrivastava, Assistant Statistical Officer PW-6 has categorically ^ ^» sfated in para-4 that it was only after Bojrang bl Soni came out of the premises of th©house of the appelbnt/he had, alongwith members of the trap part/ entered the premises, If this was true, the appellcint, ho.d he accepted the bribe. would have pocketed the money by this time. 13, TTie testimony of Bajrang lal Soni in parG-21 also goes to show that when the trop party ©nteredthe premises of the house of the appellait, the currency notes giyen by him were not in the hands of •riie appeilant but were iying on the ground. This also goes to show that the appeISant, after the currency notes were thrust in his hand in some deceitfui manner by Bajrang b! Soni, immediately threw the notes on the iawn. The testimony of Inspector M.K.Tiwari that on entering the premises he saw the oppellant holding currency notes in his left hand and upon his asking the appelloint threw the notes on tiie ground fails to inspire confidence. It is noteworthy that although Inspector M.K.Tiwari PVV-10 has stated that the oippellant was hoiding the notes in his left hand yet the panchnama of hand washin9 of the appellont goes to show that washing of both the hands of the appeilant in colourless solution had turned pink. It thus caiinot be ruied out tho.t the oppellant had upon realizing that Bajrang lal Soni was handing over the notes on the pretext of deiivering the chalian to him, had pushed the notes with both his hands due to which the notes fei! on the ground ond in this monner both his hands got tainted with phenoiphthaiein powder. The testimony of Bajrang b.! Soni clearly shows that the appeJbnt had thrown the notes to the ground before arrlva! of the trop party, Boijrang lal Soni in para-21 not denied the suggestion that on the ground near the curTency notes a piece of paper was a!so lying, 14. The testimony of R.B.Mishra. PW-4 also shows that he had ab^olute!y no knowtedge as to where Bajran9 Jal Soni had gone after returning from the house of the appeilant for the first time. It is also ctear from his testimony in Para-14 that when Bojrang bl Soni went to the house of the oppellant for the second time it was dark. This renders testimony of Inspector M.K.Tiwari PW-10 doubtful that he had not oniy the appellant accepting th© bribe but had also heard the conversation En whieh the oppellant said to Bajrang lal Soni "Come Soni, I wili do your work" \. (1; 15, Having thus considered the evidence led by the prosecution in its entirety with utmost circumspection, the following facts emerge:- (A) There is no evidance to show that in between 25th or 26 Jo.nuary,1992, the appelSont had demanded a bribe of Rs,500/- from Bajroing lal Soni. The testimony of P.K.Jagat DW-1 also does not rule out th©possibility that the appellant was not in Korba on 26 January, 1992 but was present at Bilospur, (B) The appellcxnt had already suspended the fair price shop of Bojrang bl Soni vide order dated 31-01-1992 and had pjaced it in charge of one Shri Arun Soswami, Incharge of ^ovt. Fair Pn'ce Shop. It is thus unnatural that the appellant would ha^ accepted a bribe of Rs.500/- from Bajrang lal Soni on 01-02-1992 for saving his shop from being suspended, (C) On his first visit to the the house of the cppellant on 01-02- 1992 Bajrang la! Soni was not successful since the appellant had asked him to come after on hour which goes to show that the appellant did not accept the bribe from Bojrcxng lal Soni, during his firstvisit. (b) Bajrang lal Sonl separated from the trap party at this juncture/went home and returned after an hour which does not rule out the possibility that during this time he had pSanned to deceitfully tempt the appellont to accept the bribe money under the garb of some other document, He suppressed 10 M^ \ 1^»- the truth of his unsuccessful first attempt by deppsing foilsely that wife of the appelloint had asked him to come after some time. (E) It emerges from the evidence that the alleged handing oyer of the bribe amount was after sunset while it was dork. It does not ru!e out the possibility that the appeltant could not have seen what Bajrong lal Soni was handing over to him on the lawn of his house. (F) The fact that till the arrivd of trap party, currency notes were lying on the lawn ond had not been pocketed by the appeilant, proves the innocence of the appellont and renders his defence plausible, (<5) Criminai antecedents of Bajrang lal Soni ond the fact that th@ appeJIant hod already suspended his fair price shop due to serious irregularities committed by him coupled with the testimony of AA.K.Qureshi b.W.-2 in para-4 does not rule out the possibility that Bajrang lal Soni had got the appellant troyped by deceitful means. (H) Tne evidence !ed by the prosecution show that Inspector M.K.Tiwari PW-10 had, after the first visit of Boyrosng lal Spni to the house of the exppellant was not successful. ensured that he rema.ined with the trap party. He permitted Boijroing tal Soni to leave th©trap party, When B<xjron9 lal Soni returned after an hour,it was dapk, At that time, it was not ensured by Inspector M.K.Tiwari PW-10 that fiye currency nofes of Rs.lOOA were not rapped in any other paper but had been exciusiveiy kept in the pocket of Bajrang bl Soni, This also does not ru!e out 1+ie possibility that during dark hours Bajrang !al Soni had thrust the currency notes in the honds of the appellant by deceitful means. i 11 \J[i^ ^ L CC) TTie testimony of R.C.Shrivastava PW-6 clearly shows that trap party had entered the premises only after Bajrang fal Soni came out. The fact that despite thls currency notes heid not been pocketed by 1+ie appellant and were seen lying on the lawn proves the innocence of the appelloint. (J) In the aforesaid facts ond circumstances. the presumption under Section-20(2) of the Act against ttie appellont stands who!Iy rebutted and it becomes plausible that the appellant did not accept the currency notes which were thrust in his hond along with some paper by Bajrang lal Soni by deceitful meoins oind he had immediately pushed the notes on 1tie ground with hishands, 16. In view of the foregoing reasons, conviction of the appellont under- Section-7 & Section-13(l)(D) read with Section-13(2) of the Prevention of Corruption Act ond the sentence awarded thereunder by the leamed trlal Judge is liable to be set aside. 17, In the result, the appeal is allowed. Conviction of the appellant under Section-7 & Section-13(l)(D) read with Section-13(2) of the Prevention of Corruption Act and the sentence awarded thereunder by the leamed trial Judge is set aside, Jhe dppellant is acquitted* Sd/- Dilip Raosaheb Deshmukh Judge •^