HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Aggeal No.2200 of 1996 Dr. Vinay Kumar Tamrakar, S/o Late Shri Deenanath Tamrakar, R/o Gram Dhamtha Distt. Durg, Occupation Assistant Surgeon, in Prathmic Swashthaya Kendra, Abhanpfir, Distt. Raipur MP. (now CG.) Versus Special Lokayukt Poiice Bhopal, ikai Raipur MP. (now C.G.) under Section 374 ofthe Code of Criminal Procedure, 1973 read with Section 27 of the Prevention of Corruption Act, 1988} ,v Preseht: Mr. Anup Majumdar, Advocate appears on behaif of Mrs. Neelima Varma, cdunsel for the appellant. i Mr, Rajendra Tripathi, Panel Lawyer for the State/respondent. Single Bench: Hon’ble Mr. T.P. Sharma, J 1. Challenge in this appeal is to the judgment of conviction & order Of sentence dated 3041—1996 passed by the Special Judge, Raipur in Special Case No.16/92, whereby learned Special Judge after holding the appellant guilty for commission ofoffenceiunder Sections 7 & 13 (2) read with Section 13 (1) (d) (i) of the Prevention of Corruption Act, 1988, sentenced him to undergo R.l. for one year & paytfine of Rs.1,000/—, in default of payment of fine to further undergo S.l. for three months on both counts! on the ground that without any iota of evidence, the Court below has convicted & sentenced the appellant and thereby Conviction is impugned committed illegality. ORAL JUDGMENT (1 0-3-201 O} Case of the prosecution, in brief, is that the appellant was working as a public servant as a doctor at Primary Health Centre, Abhanp . On 23-4- 3. .l i i . i. l {'{Appjeal APPELLANT: RESPONDENT: 88 complainant Rajesh Bagde (PW-5) went to the doctor, the appellant herein, at the government hospital for his treatment where the appellant demanded Rs.50/- for best treatment. The complainant was not ready & willing to give illegal gratification of Rs.50/- and he made a Written complaint to the speCIal police Vide Ex P 4 on 3O 4 88 Team‘ior trap was constituted by inspector Rajeshwar Singh (PW 12) independent witnesses Sanjay Kumar Diwan (PW—7) and Ashok Tiwari (PW-3) — the then Naib TahSIldar were called and complaint Ex.P-4 was read over beforeithem‘ The complainant produced currency note of Rs.50/— number‘of which was recorded in the preliminary Panchnama. The currency note was tainted with phenolphthalein powder and was kept in the pocket§of the shirt of the complainant. The complainant was directed to touch the same only at the time of giving to the accused/appellant on demand and thereafter, give signal to the trap. Reaction of sodium carbonate solution was demonstrated. Preliminary Panchnama EXP—6 was prepared and the trap party proceeded to the place of incident. After preparation of preliminary Panchnama, the trap party proceeded for the spot. Complainant Rajesh Bagde (PW-5) along with Ashok Tiwari (PW-3) went to the hospital where the appellant was present. The appellant called Rajesh Bagde (PW—5) to his house where he demanded Rs.50/— and the appellant received Rs 50l- from Rajesh Bagde Rajesh Bagde gave signal to the trap party, the trap party came and after 'introducing themselves got the hands of the appellant washed with sodium carbonate solution on which its colour turned pink. Rs.50/- were a seized from the appellant vide Ex.P-7. Pocket of shirt of the appellant was also washed with sodium carbonate solution which also turned into pink and the same was seized vide Ex.P—18. Final Panchnama was prepared vide EXP-9. Order relating to transfer posting of the'appellant Tl a l i i. . i 7. @ was obtained by the investigating Officer vide Ex.P-9. OPD Register Art. ‘A’ was seized vide Ex.P-1. Spot map was prepared vide EXP-13. Dehati Nalsi was recorded vide EXP—14. Medicines were seized from the compiainant vide EXP-16. Seized solution was sent for chemicai l examination to F.S.L. Sagar vide EXP—18 and presencefof sodium carbonate & phenoiphthaiein was confirmed on the solution and pocket of the shirt of the appellant vide EXP-19. F.l.R. was lodged vide EX.P- 20. Statements of the witnesses were recorded under Section 161 of the Cr.P:.C. After completion of investigation, material collected was sent for obtatn'rhg sanction to the State Government and sanction was accorded vide EXP-12. Finally charge sheet was filed before the Special Judge. 4. ln order to prove the guilt of the appellant, the prosecution has examined as many as twelve witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he has specifically admitted that he has demanded and received Rs.50/— from‘the complainant for his treatment for which he was competent because he was not getting non- practicing allowance, as such, he was permitted for private practice as a doctor after his official duty, therefore, he has not committed any offence. 5. l have heard learned counsel for the parties, perused the judgment . impugned and record of the Court below. a 6. Learned counsel for the appellant vehemently argued that in the present case, on the date of incident the appellant was posted as public servant as doctor, he has demanded & received Rs.50/- from Rajesh Bagde (PW-5) for his private greatment in his house and he treated Rajesh Bagde (PW-5) in his house. Hands & pocket of shirt of the appellant were washed by the trap party with sodium carbonate solution which \ turned into pink colour. Learned counsel further argued that the b ‘J \\\ , .VL \xt appellant was authorized for private practice because he was not getting non-practicing allowance. Dr. Shridhar Agrawal (PW-4) has specifically deposed in his evidence that he has issued certificate Ex.D-1 which reveals that the appellant is not getting non-practicing allowance and he is allowed to do private practice. Learned counsel also argu°ed that the appellant has nOt treated the Government patient in private capacity, when the complainant contacted hirn for better treatment in his house, he hasltreated and provided medicines to the complainant. W 7. Onlthe other hand, learned State counsel opposed the appeal and submitted that the appellant, who was working as public servant, has demanded and accepted Rs.50/- as gratification other than the legal remuneration for discharge of his official duty which is punishable under ' Sections 7 & 13 (2) read with Section 13 (1) (d) (i) of the Prevention of Corruption Act. 1988. 8. ln order to appreciate the arguments advanced on behalf of the paities, l have examined the evidence adduced on behalf of the parties. 8 9. In the present case, it is undisputed that on the date of incident i.e. 30—4— 88 the appellant was working as public servant as doctor, he has i‘ ‘ i demanded & received Rs.50/- in his house from complainant Rajesh Bagde (PW-5) and has treated the complainant-in his house. Only question for consideration in the present case is whether the appellant has demanded & received Rs.50/- in discharge of his official duty or has demanded & received Rs.50/— as his private fees for treatment of the complainant int‘private capacity. 10. Rajesh Bagde (PW-5) has specifically deposed in his evidence that firstly on 23-4-88 he contacted the appellant in‘his Government hospital for treatment, he was treated by the appellant but same was not x \, i MWM P 9gb satisfactory, then the appellant told him that he will treat him privately and asked Rs.50l— for private treatment. Again he went to the hospital on 28—4—88, but the appellant was not present in the hospital, then he contacted one Balvir Mishra who advised him that the appellant used to take more money and also advised for trapping the‘appellant. Thereafter, he lodged report Ex.P-4 to the special police. He has supported preparation of preliminary Panchnama and laying of trap. In para;12 of his evidence, he has further deposed that he has tried to give Rs.5b/- to the appellant in his hospital where he refused to take on which he went to the house of the appellant where the appellant treated him and ieven injected him, then he gave Rs.50/- to him and gave signal to the trap§party whereupon the trap party came and recovered Rs.50/— rom th appellant. f e 11.8hadow witness Ashok Tiwari (PW-3) has corroborated the evidence of Rajesh Bagde (PW—5) and has specifically deposed in para 6 of his evidence thatvfirstly the complainant was examined by the doctor, the appellant herein, in Government hospital and the appellant prescribed some medicines, thereafter, the complainant requested the appellant to examine him in detail’in his house on which the appellant told him that after office timings the complainant may come to his house where the complainant was treated by the appellants 12.Dr. Shridhar Agrawal (PW-4), the then Dean of Medical College, who has proved Exs.P-7 & P-9 has specifically admitted in para 6 of his cross- examination that‘he has issued certificate Ex.D—1 to the appellant and the appellant is empowered to treat patients in his house after his official \duty. Ex.D-1 clearly reveals that the appellant was not getting non— practicing allowance and he was allowed to do private practice. £5 .v\ ‘\ OA 13 The aforesaid ewdence clearly reveals that firstly, the appellant has treated the complainant ln Government hospital and at the request of the complainant, he has treated the complainant in his house, he has prescribed medicines and also injected the complainant and has demanded & received Rs.50/— as his private fees for privatetreatment for whch he was entitled, as he was not getting any non-practicing allwance and he was authorized for priate fees. 14.Afer appreciating the evidenc available on record, learned Special Juge has convicted & sentenced the appellant on the ground that intead of treatin the complainant in the hospital, the appellant has trated the complnant n s ouse therefore the appella has abused h poson an has demanded & receed Rs 50l- but the SpeCal Judge has not considered the aforesaid evidence of Ashok a (PW— 3), Dr. Shridhar Agrawal (PW-4) & Rajesh Bagde (PW-5) who have secially deposed that the complanant himself as contacted for private treatment and the appellant has treated him privately for which the appellant was authorized, and thereby Committed illegality. 15.o the foregoing reasons, conviction & sntences of the appellant under ections 7 & 13 (2) read with Section 13 (1) (d) (i) of the Prevention of Corruption Act, 1988 are not sustainable under the“law. w 16.onsequently, the appeal is allowed. Conviction & sentences of the appellant under Sections 7 & 13 (2) read with Section 13 (1) (d) (i) of the Prevention of Corruption Act, 1988 are hereby set aside and the appellant isiac‘quittedaof the said charges. Fine amount paid by the appellant, if any, shall be refunded to him. Theappellant is on bail. He need not surrender to his bail bonds. J Sd/_ t // j T. P. Sharma 1‘ Judge Soma a i o v t l e d s g e ai I hi h nt is m d iv I Tiwri 5 p i h Fr e S aa C