^- '^ F II, i.0t] ss- HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice RaAhe Shyam Sharma Criminal Appeal No.977 of 1996 V. Raghav Rao (Now Dead) through legal representatives versus The State of Madhya Pradesh (Now State of Chhattisgarh) through Central Bureau of Investigation, Jabalpur JUDGMENT Postfor 05-12-2011 Sd/- R.S. SIiarma Judge -. / ii;t B !" L\ 11 •^r'l^ 3~|Z'L<.7') HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Radhe Shvam Sharma, J. Criminal Appeal No.977 of 1996 Appellant 1. 2. 3. vs. Respondent V. Raghav Rao, Son of Late V. Surya Narayana, Aged about 50 .years, Senior Welfare Inspector, South Eastern Railway, Bilaspur, Resident of 1152/3r New Construction Colony, Bilaspur (MP) (Now State of Chhattisgarh) Now Dgad, Through Leaal Representatives:- Smt. V. Satyavati, widow of Late V. Raghav Rao, aged about 60 years, Occupation - Housewife V. Sridhar, Son of Late V. Raghav Rao, aged 33 years, Occupation - Service V. Vijay, son of Late V. Raghav Rao, Occupation profession (Advocate) All residents of 'Aashiyana' 33/38A, Near Railway Pump House, Tikrapara, Bilaspur (CG) The State of Madhya Pradesh (Now State of ©hhattisgarh)through Central Bureau of Investigation, Jabalpur Criminal Appeal under Section 374C2)_Cr,P.C. Present: Shri Rajeev Shrivastava, counsel for the appellant. Shri Santosh Kumar Tiwari, Standing Counsel for the respondent/ C.B.I. JUDGMENT (Delivered on December,2011) The instant appeal preferred by accused/appellant V. Raghav Rao is directed againstjudgment date^'21 May, 1996 passed by 5 Additional Sessions Judge, and Special Judge (CBI), Jabalpur in Special Case No.29/93, whereby the learned Special Judge has convicted the accused/appellant under Sections 7 and 13(1 )(d)/13(2) .Of the Prevention of Corruption Act, 1988 (henceforth 'the Act, 1988')-andsentenced to undergo rigorous imprisonment for one year and to pay .<& Kii; fine of Rs.2,000/- and to undergo rigorous imprisonment for two years and to pay fine of Rs.4,000/-, respectively. In default of payment of fine, the accused/appellant has been sentenced to further undergo rigorous imprisonment for six months and one year, respectively. 2. During pendency of the appeal, accused/appellant V. Raghav Rao has died on 26.9.2005 and his legal representatives have filed application under Section 394(2) Cr.P.C for their substitution in place of the deceased/appellant and continuation of the appeal. By order dated 4-4-2011, the legal representatives of the accused/appellant have been ordered to be brought on record and they have been permitted to continue the appeal. 3. Case ofthe prosecution, in brief, is as under: The accused was functioning as Senior Welfare Inspector in South Eastern Railway at DRM's Office, Bilaspur during the year 1991-92. Complainant Hiralal (PW-3) made a complaint (Ex-P/2)-'to Dy. Superintendent of Police, CBI, Jabalpur on 27.8.92 stating that the accused demanded Rs.1,000/- from him as bribe for preparing and forwarding the papers for his medical test for compassionate appointment. N.K.Dubey, Dy. Superintendent of Police, CBI forwarded the complaint to Inspector Binay Kumar (PW-6) for taking necessary action and arranging trap proceedings. Binay Kumar (PW-6) called for two panch witnesses A.A.Khan (PW-4) and V.K.Shrivastava (PW-5). A pre-trap demonstration was arranged, wherein solution of sodium carbonate was prepared in a glass. On dip of a water paper in it, colour of the solution did not change. Thereafter, another piece of paper containing phenolphthalein powder was again dipped in the solution -../ . - ... . . .. - . - . of'sodium carbonate, colour of which turned pink. Panchnama of pre-trap was prepared yide Ex-P/3. After giving the demonstration, complainant Hiralal (PW-3) was asked to present currency ngtes of Rs.1,000/-. The complainant submitted currencynotesQfRs.1,000/-,inthedenomination ofRs.50/-. Numbersofthe notes ^^;;'. •ll ii: IIIIIB were recorded in the pre-trap Panchnama. After submission of the notes, phenolphthalein powder was smeared thereon and the notes were kept in the pocket of complainant l-1iralal (PW-3). The complainant and V.K.Shrivastava (PW- 5) were informed and guided as to how the trap would be arranged and as to the role which they were required to play-in the trap proeeedings. After preparing pre- trap Panchnama (Ex-P/3) and arrgnging pre-trap proceedings7 the trap team proceeded to the house of the accused. Complainant Hiralal (PW-3) and V.K.Shrivastava (PW-5) were asked by the trap' team to proceed to the house of the accused for giving the bribe and members of the trap team gathered around the house of the accused at different places in order to witness the incident. Complainant Hiralal (PW-3) gaveRs.1,000/- (20 notes in the denomination of Rs.50/-) to the accused. The accused kept the money in the pocket of his Kurta. After receiving the trap signal, members of the trap team rushed the spot immediately and caught hands ofthe accused. The trap team seized the currency notes from the accused. Numbers ofthe'currency notes seized from the accused were compared with the numbers mentioned in the pre-trap Panchnama (Ex-P/3), which were found similar. Solution of sodium carbonate was prepared and right hand of the accused was washed in that solution, colour of which turned pink. Thereafter, the solution was kept in a bottle and sealed. Another solution of sodium carbonate was prepared, in which, pocket of the Kurta of the accused was dipped, colour of which also turned pink. Thereafter, the solution was kept in another bottle and sealed. Kurta of the gccused was seized and currency notes were also seized. Thereafter, another solution of sodium carbonate was prepared, in which hands of the QOmptainant were washed, colour of which turned pink. The solution was kept in anpther bottle and sealed. Trap-Panchnama was prepared on the spot. Three passport size photographs and bunch of papers were seized from i • : .• complainant Hiralal (PW-3) vide Ex-P/5. Almirah of the accused was searched and relevant papers were seized and a search list was prepared vide Ex-P/7. ^ll^l ;ll-j- <i"."---4 (ts;fc:^ °t!aar ..i iL\ litirii'll' iil Thereafter, First Information Report (Ex-P/27) was registered. The sealed solutions and other seized articles were sent for chemical examination. Report (Ex-P/28) was received from Forensic Science Laboratory (FSL). In the report (Ex-P/28), it is mentioned that test of phenolphthalein was found positive. After completion of investigation and after obtaining sanction for prosecution (Ex-P/1) against the accused, charge sheet was filed against him before Special Judge, CBI, Jabalpur. The learned Special Judge, Jabalpur framed charges against the accused under Sections 7 and 13(1)(d)/13(2) of the Act, 1988. After appreciation of the evidence available on record, the learned Special Judge has convicted and sentenced the accused as mentioned above. 4. Shri Rajeev Shrivastava, learned counsel appearing for the accused/appellant argued that the prosecytion has failed to prove demand of illegal gratification by reliable and cogent evidence, which is s/ne gua non for convicting the accused under Sections 7 and fl3(1)(d)/13(2) of the Act, 1988. To prove the same, presumption cannot be drawn against the accused. He further submitted that at the time of incident, the accused was transferred and he had handed over charge of his office and he was relieved to join new place of posting. It is necessary for the prosecution to satisfy and establish that all the ingredients of Sections 7 and 13(1)(d)/13(2) of the Act 1988 have been made out before convicting the accused. Evidence of Hiralal (PW-3) is full of contradictions. Recovery of amount is also doubtful. In one place, Hiralal (PW-3) deposed that the-amount was r^co^ered from the shirt of the accused and in another place, he deposed.that the amount was recovered from the pocket of the Kurta of the accusedJ, The date and time of recovery are also contrary. The evidence of Hiralal (PW-3) is unrelictble and conviction cannot be based on his testimony. Demand of money was npt proved by the prosecution. He further submitted that ,EW l.-llll"- J' the impugned judgment is not sustainable in the eyes of law. He placed reliance on Mohmoodkhan Mahboobkhan Pathanvs. State of Maharashtra, (1997) 10 SCC 600 and Meena (Smt) W/o Balwant Hemke vs. State of Maharashtra, (2000) 5 SCC 21. 5. On the other hand, Shri Santosh Kumar Tiwari, learned Standing Counsel appearing for the respondent/CBI, supporting theimpugned judgment, submitted that the prosecution has adduced cogent and reliable evidence against the accused. Bribe money was recovered ;from the accused. Right hand ofthe accused was washed in the solution of sodium carbonate, colour of which had turned pink. Pocket of the Kurta of the accused was also dipped in the solution of sodium carbonate, colour of which also turned pink. Acceptance of the amount is not disputed by the accused, therefore, presumption under Section 20 of the Act, 1988 is made out against the accused. Hence, the accused is liable to be convicted. 6. The learned Special Judge, after appreciation of the evidence available on record, held that the accused had demanded Rs.1,000/- from the complainant for fhe purpose of issuing medical test form regarding his compassionate appointment, which is illegal gratification. The learned Special Judge has convicted the accused under Sections 7 and 13(1)(d)/13(2) ofthe Act, 1988. 7. Inspector Binay Kumar (PW-6) deposed that on 27.8.92, he had stayed at Anand Hotel, Bilaspurwith N.K.Dubey, Deputy Superintendent of Police. On that day, complainant Hiralal (PW-3) came there and submitted his complaint (Ex-P/2) to-Deputy Superjnt^ndent of Police N.K.Dubey. N.K.Dubey forwarded the complaint (Ex-P/2) to him. At that time, complainant Hiralal (PW-3) was present there. H,e asked Hiralal (PW-3) regarding his complaint, called A.A.Khan (PW-4) and V.K.Shrivastava (PV/-5) and introduced them with complainant Hiralal (PW-3). Thereafter, the withesses read the complaint (Ex. P-2) of the complainant. Eil Ki: ,^i1 ^iH •) '': '^! • -'£3^. y.. '^"% .^ Thereafter, trap proceedings were arranged. A pre-trap demonstration was arranged, wherein a solution of sodium carbonate was prepared in a glass. A paper was dipped in the solution, but colour of the solution did not change. Thereafter, another piece of paper smeared with phenolphthalein powder was dipped in the solution, colour of which turned pink. Pre-trap Panchnama was prepared vide Ex-P/3. After giving the demonstration, complaihant Hiralal (PW-3) was asked to produce currency notes of Rs.1,000/-. The complainant submitted Rs.1,000/- (20 notes in the denomination of.Rs.50/-), on which, phenolphthalein powder was smeared and thereafter the said notes were kept in the pocket of complainant Hiralal (PW-3). The complainant was informed and guided as to how the trap would be arranged and about the role which he had to play during trap- proceedings. 8. Hiralal (PW-3) deposed that his father had died on 13-3-1992. His father died during his employment. After 15 days of death of his father, he had submitted an application for employment in PWI office, Balod. After about 1% months of submission of the application, he had received a call letter for interview from the office of Senior D.R.M., Bilaspur. After appearing in the interview, he had received a registered envelope relating to employment on 12-8-1992. After receiving the said envelope relating to the employment, he had gone to DPO Office, Bilaspur and met accused Raghav Rao there. On showing him the papers relating to the employment, he had told him that he will have to appear for medical examination, and thereafter, he will get the employment. The accused told him that medical paper wi1l be given by hjm and for getting the medical paper, he will have to pay Tiim Rs.1,000/-.'- Hfe said to the accused that he does not have money and he is a poor person. He had gone to the house of the accused for obtaining the medical paper.' .The accused had again demanded the money and told him that only on giving the money he will give him the medical paper. The accused had asked him to come with Rs.1,000/-,at his house on that day at 7 P.M. and said that on 7 receiving the money he will give the medical paper and his all work will be completed. He did not want to give money to the accused, therefore, he made a complaint to the CBI (Central Bureau of Investigation) vide Ex. P-2. The CBI Personnel had met him in Anand Hotel, Bilaspur. CBI Personnel Dubey, Pandey and others had met him there. On receiving his complaint, CBI Personnel had called for two witnesses. One of the witnesses was one Shrivastava and another was one Khan. He was introduced with both the witnesses. He was also introduced with other personnel of the CBI. Flis complaint was given to both the witnesses for their perusal. After perusing the complaint, the witnesses had enquired him about the demand. He had told them about the demand of bribe of Rs.1,000/- by the accused. 9. AA.Khan (PW-4) deposed that on 27-8-1992, he was instructed by his Chief Vigilance Officer to visit CBI Personnel staying at Anand Hotel, Bilaspur in regard to some necessary action. Under the instructions of the Chief Vigilance Officer, he and V.K.Shrivastava (PW-5) went to Anand Hotel, Bilaspur and met the CBI Team there at Room No.58. He met there CBI Personnel, namely, Dubey, Binay Kumar, Chouhan and others. He also met complainant Hiralal there. CBI Personnel told him there that accused Raghav Rao had made demand of bribe of Rs.1,000/- from the complainant for giving medical paper. Therefore, he was required to accompany them and play role of an independent witness. CBI Personnel Binay Kumar had shown him the complaint made by the complainant. After perusing the complaint, he had enquired the complainant about the complaint. The complainant told him that the accused had demanded bribe from ./ hiffl for giving raeiycal paper and, therefore, he made the complaint vide Ex.P-2. On being asked by Binay Kumar, the complainant had submitted 20 currency notes in the denomination of Rs.50/- each, whose numbers were noted in the Panchnarna. Thereafter, those currency notes were smeared with phenolphthalein powder. Demonstration of sodium carbonate solution and " ]] "!1 ..-::"T':^. /'•'"" ^ \ & ~. 'i "lij;l "te. ""^ ~':^~ ^' '/ phenolphthalein power solution was made there. That solution had turned into pink colour. That solution was sealed in an empty bottle. That solution was named as article 'G'. The currency notes, smeared with phenolphthalein powder, were kept in top pocket of shirt of the complainant. The complainant was asked not to touch the currency notes until the accused makes demand therefor. V.K.Shrivastava (PW-5), who was also instructed by the Chief Vigilance Officer to visit CBI Personnel staying atAnand Hotel, Bilaspur, deposed in similarfashion. 10. Binay Kumar (PW-6) deposed .that he directed Hiralal (PW-3) and V.K.Shrivastava (PW-5) to meetthe accused. Hiralal (PW-3) and V.K.Shrivastava (PW-5) went to the house of the accused. They reached the house of the accused and spread nearby the house. He further deposed that he directed A.A.Khan (PW-4) to stay near the window of the house of the accused and to try to hear the talks between the accused and complainant Hiralal (PW-3). He further deposed that Hiralal (PW-3) and V.K.Shrivastava (PW-5) entered the house ofthe accused and after sometime, V.K.Shrivastava (PW-5) came out of the house of the accused and rubbing his head, transmitted sigriai to the waiting trap-team. 11. V.K. Shrivastava (PW-5) deposed that he and Hiralal (PW-3) were asked by the members of the trap team to proceed to the house of the accused to give the bribe money and three photographs.of hliralal (PW-3) were kept in the pocket of l-1iralal (PW-3). They proceeded to the house of the accused by a rickshaw. After entering the house ofthe accused, HiralalJPW-3) gave his three photographsand Rs.1,000/- to the accused. The accused took the money in his right hand and kept the same in the pocket of'his Kurta and thereafter he told l-1iralal (PW-3) that his work will be ddrie: -After receiving the signal, Inspector Binay Kumar (PW-6), other CBI Personnel and A.A.Khan (PW-4) rushed there and caught hands of the accused. Solution of sodium carbonate was prepared and right hand of the accused was washed in that solution, colour of which turned pink. The solution ll-p : 1 :.\ was kept in a bottle and sealed. Currency notes were seized and numbers thereof were compared with the numbers mentioned in pre-trap Panchnama (Ex-P/3), which were found similar. Right hand side pocket of the Kurta of the accused was also washed in the sodium carbonate solution, colour of which turned pink. The solution was kept in another bottled and sealed. Binay Kumar (PW-6) deposed in similar fashion in paragraphs 3 and 4 of his deposition and A.A.Khan (PW-4) also deposed in similarfashion. 12. V. Koteshwar Rao (DW-1) deposed that in August, 1992, the accused was posted as Welfare Inspector in the office of Senior DPO, South Eastern Railway, Bilaspur. In the month ofAugust, 1992, at about 6:45 P.M., he had gone to the house of the accused. At that time, the accused had not returned home from the office. He had some talks with wife of the accused. After sometime, the accused came home and told him that he was not feeling well and after getting fresh, he went to garden of the house. hte further deposed that after sometime, he heard some noise fromoutside. When he came out, he saw that two persons had caught hold of hands of the accused. Ori being asked, they told him that they were officers of the Central Bureau of Investigation and had made trap against the accused. 13. Learned counsel for the accused/appellant argued that on 27-8-1992, the accused was not posted at the relevant office and he was already transferred and relieved from there to join new place-of posting, therefore, the accused was not competent to carry out the work of the complainant and issue any medical test form in his favour. ,/This argument is not acceptable. •• / ~ •14. In Dhaneshwar Narain Saxena vs. The Delhi Administration, AIR 1962 SC 195, the Hon'ble Supreme Court held thus: "3. ........... "The offence underthis provision consists of criminal misconduct in the discharge of his duty. In order, therefore, that this 1 .»( .?•"-%», /'^'-\ "• \ 10 offence is committed there should be misconduct by the public servant in the discharge of his duty. In other words the public servant must do something in connection with his own duty and thereby obtain money for himself or for any other person by corrupt or illegal means or by otherwise abusing his position. If a public servant takes money from a third person in order to corrupt some other public servant and there is no question of his misconducting himself in the discharge bT his own duty, that action may be an offence under S. 161 ofthe Indian Penal Code but would not be an offence under S. 5(2) read with S.-.5(1)(d) of the Prevention of Corruption Act. The essence of an offence under S. 5(2) read with S. 5(1 )(d) is that the public servant should do something in the discharge of his own duty and thereby obtain any valuable thing or pecuniary advantage for himself or for any other person by corrupt or illegal means or by otherwise abusing his position. The words "by otherwise abusing his position" read along with the words "in the discharge of his duty" appearing in S. 5(1 )(d) make it quite clear that an offence under that section requires that the public servant should misconduct himself in thedjscharge ofhis own duty. ............" 15. In Dalpat Singh and another vs. State of Rajasthan, AIR 1969 SC 17, the Hon'ble Supreme Court observed that the words "in the discharge of his duty" occurring in S. 5(1) of the Prevention of Corruption Act do not constitute an essential ingredient of the offence under S. 5(1 )(d) of the Act. The ingredients of the offence underS. 5(1)(d) are: (1) that the accused should be a public servant, (2) that he should use some corrupt or illegal means or otherwise abuse his position as a public servant, (3) that he should have obtained a valuable thing or pecuniary advantage and (4) for himself or any other person. Therefore to bring bome an offence/inder S. 5(1)(d), it is not necessary to prove that the acts c.omplairied of were done by the accused in the discharge of their official duties. Therefore, if itis proved that the accused had by illegal means or by otherwise abusing their position as public servants obtained for themselves money or other t, v9Sss, :'ii-i'fcfc^Ii 11 valuable things, then, they ean be said to have committed the offence of criminal misconduct in the discharge of their official duties. 16. In the light of above principles, It is erroneous to hold that the essence of an offence under Section 13(1)(d) read with Section 13(2) of the Act, 1988 is that the publicservant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is also erroneous to hold that the essence of an offence under Section 13(1)(d) read with Section 13(2) of the Act, 1988 is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage. It is necessary that an accused person, while misconducting himself, should have done in the discharge of duty and thereby obtained any pecuniary advantage. In the instant case, the accused was posted as a Welfare Inspector in Recruitment Section in South Eastern Railway at Bilaspur and the complainant had earlier met with him for the purpose of .getting medical test form from him for his compassionate appointment. In this situation, even if the accused would have been transferred from the recruitment section of the Railway at Bilaspur to new place of posting, the complainant was under impression and belief that the accused could carry out his work relating to issuance of medical test form and, therefore, the complainant had met with him for the said purpose. 17. It is evident that complainant Hiralal (PW-3) had gone to the house of the accused along with V.K.Shrivastava (&W-5). V.K.Shrivastava (PW-5) transmitted signal to the waiting trap-team and the trap-team, on receiving the signal, reached the spot immediatqty anU caught hands of the accused. After getting hands of the accused washed jn the solution of sodium carbonate, the test of phenolphthalein was found posLfive. Currency notes were also recovered from the pocket of the accused and their numbers were compared with the numbers mentioned in the pre-trap Panchnama (Ex.P-3), which were found similar. 12 18. In M. Nareinga Rao vs. State of A.P., (2001) 1 SCC 691, the Hon'bte Supreme Court observed thus: "22. In Raghubir Singh v. State of Haryana, (1974) 4 SCC 560, V.R. Krishna lyer, J. speaking for a three-Judge Bench, .observed that the very fact of an Assistant Station Master being in possession ofthe marked currency notes against an allegation that he demanded and received that amount is "res ipsa loquitur". In this context the decision of a two-Judge Bench of this Court (R.S. Sarkaria and O. Chinnappa Reddy, JJ.) in HazariLalv. State (Delhi Admn.), (1980) 2 SCC 390, can usefully be refecred to. A police constable was convicted under Section 5(2) of the Prevention of Corruption Act, 1947, on the allegation that he demanded and received Rs.60 from one Sriram who was examined as PW 3 in that case. In the trial court PW 3 resiled from his previous statement and was declared hostile by the prosecution. The official witnesses including PW 8 have spoken to the prosecution version. The Court found that phenolphthalein-smeared currency notes were recovered from the pocket of the police constab.Ie. A contention was raised in the said case that in the absence of direct evidence to show that the police constable demanded or accepted bribery no presumption under Section 4 of the Act of 1947 could be drawn merely on the strength of recovery of the marked currency notes from the said police constable. Dealing with the said contention Chinnappa Reddy, J. (who spoke for the two-Judge Bench observed as follows: (SCC p. 396,para 10) "It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead