u3 "\ S SP'^ j // ~'^w^'' ^ ''%'' ..: .^ A &E-. HIGH COURT OF CHHATTISGARH. BILASPUR Single Bench: Hon'ble Shri Sunil Kuniar Sinha, J. Criminal Appeal No. 400 of 1991 Yashwant Rao Maratha Vs. State of M.P; (Now State of Chhattisgarh) JUDGMENT Post for Judgment : /9-/08/2011 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH. BILASPUR Single Bench: Hon'ble Shri Sunil Kuniar Sinha, J. Criminal Aooeal No. 400 of 1991 APPELLANT RESPONDENT h-^-/f Yashwant Rao Maratha son of Bhimrab Maratha, aged 43 years, Patwari, Patwari Circle No. 21, Rdni Road, Purani Basti, Korba, Tahsil Korba, District Bilaspur, M.P. (Now Chhattisgarh) Versfts State of M.P. (Now State of Chhattisgarh) Through: The Police Station, Korba, District Bilaspur. (Criniinal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) Appearance: Ms. Abhishek Sinha, Advocate for the appellant. Mr. Satish Gupta, Govt. Advocate for the State. JUDGMENT ( ^.08.2011) (1) This appeal is directed against the Judgment dated 25th of Mareh, 1991 passed in Special Criminal Case No. 5/85 by the Special Judge, Bilaspur. By the impugned judgment, the appellant < has been cdnvicted u/s 5 (2) read^with Section 5 (1) (d) of the ^ - ; Prevention of Corruption Act, 1947 and Section 161 IPC and sentenced to undergo R.I. for 1 year R.I. for 1 yearwith a direction to run^ & to pay fine of Rs.500/- and the. sentences concurrently. Criminal Appeal No. 400 of 1991 (2) The facts, briefly stated, are as under:- The appellant was Patwari. He was In-charge of Patwari Circle No. 21. Complainant- Muritram Sahu (PW-1) and his brothers had ancestral properties in village Korba, FUsdi and Pondi Baliar. Their father died in the year 1978. After his death a partition took place in their family. Lands situated in village Korba was given jointly to his elder brother Thandaram (DW-1') and his mother. However it was recorded in the rrame of Thandaram (DW-1) alone. Complainant- Muritrara wanted that the name of his mother should also be recorded along with Thandarm on the said lands. The allegations are that the appellant demanded Rs.600/- for recording the name of mother of Muritram along with Thandaram. Muritram (PW-1) allegedly paid him Rs.200/-. The appellant, therefore, asked Muritram to pay the balance of amount of Rs.400/-. Muritram was not willing to make payraent, therefQre, on 28.12.81, he along with Darshandas (DW-2) went to Bilaspur to lodge the complaint. By chance, they met the appellant near the Election Office situated in the premises of the Collectorafe. It is alleged that at that time also appellant made demand of Rs.400/-. Muritram (PW-1) said tbat he would pay Rs.100/- to the appellant after sometime. Muritram. fhen went to the Collectorate and lodged the complaint (Ex.-P/l). It was sent to the Vigilance Department and ultimately the Vigilance persons decided to arrange a trap. Darshandas (DW-2) had also gone to Vigilance Office, where, they were given demong.fration of Phenolphthalein Test. Muritram (PW-1) . gave one note of Rs.100/- denomination. Phenolphthalein powder was sprinkled and spr'ead over the currency note. , With due direction, it was given to Muritram (PW-1). G.K. .Tiwari (PW-11), a Rolice Officer, was leading the trap party. The trap party, thereafter went to Collectorate. Muritram . . (PW-1) and Darshandas (DW-2) firstly reached there and t.^ :-'^ % -»;'^' ,'- f' ^: Criminal Appeal No. 400 of 1991 they took -the appellant to a canteen/hotel for taking refreshment and tea. The further allegations are that after taking the refreshment, Darshandas (DW-2) went to the counter to make payinent and at the same time, the complainant took ou^ the tainted note from his pocket and gave it to the appellant. The trap party caught the appellant with the above currency note. Formalities relating to Phenolphthalein Test wera corapleted. Seizure memo (Ex.- P/11) and panchn.ama (Ex.-P/12) were prepared and dehatinalshi (Ex.-P/9) was recorded. Based on all this the offence was registered. After completion of other formalities, including the formality of sanction, a charge-sheet u/s 161 IPC and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the/Special Act') was filed. (3) The appellant fook defence that he had gone to the canteen/hotel on the request of the complainant (PW-1) and after taking refreshment and tea, coniplainant gave him Rs.100/- for making payment of the bill of the canteen/hotel; there was no demand of illegal gratification from his side and he has never accepted illegal gratification from the complainant. In fact, the appellant gave his clear defence in answer to various questions asked during his examination u/s 313 Cr.P.C. The learned Special Judge, relying on^the provisions of Section 4 (1) ofthe Special Act, held that the appellant admitted to take the tainted note from the •ir complainant, therefore, the presumption will go against him and since he failed to rebut the presumption, he was. liable for punishment under the aforementioned Sections of the Special Act an.d.IPC. T Criminal Appeal No. 400 of 1991 (4) Mr. Abhishek Sinha, learned counsel appearing on behalf of the appellant, argued that the appellant has fully rebutted the presuniption which could have been raised against him; only 3 persons were sitting on the table of the canteen/hotel i.e. appellant, complainant- Muritram (PW-1) and Darshandas (DW-2) and all other members of the teap party were at some distance. They could not depose about the conversation between the appellant and the complainant before handing over the note; Darshandas (DW-2) was a shadow witness; he was not examined by the prosecution; he was examined by the defence who did not support the case of the prosecution orevidence of Muritram (PW- 1), he deposed that the note was given for payment of bill of the canteen/hotel; therefore, it was not proved beyond all reasonable doubts that the appellant took the tainted note as bribe frorn the complainant and the presumption against the appellant was rebutted. (5) On the other hand, Mr. Satish Gupta, leamed Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Special Court. < (6) 'I have heard learned-cpunsel for the parties at length and hav.e also perused the records ofthe Special Case. .(7> Muritram (PW-1) deposed that after demonstration in the Vi^lance Qffice, he along with Darshandas (DW-2) returned to the Criminal Appeal No. 400 of 1991 4^ Collectorate on a rickshaw. They searched the appellant and found him in front of the Election Office. He told the appellant that he has brought Rs.100/-. He asked him to go to the canteen/hotel for taking tea etc. Thereafter he along with the appellant and Darshandas (DW-2) went to the canteen/hotel. The persons of Vigilance Party also came to the canteen/hotel. They were in the circle of 20-25 feet. 3-4 of them were inside the canteen/hotel. Darshandas (DW-2), after the refreshment and tea, paid the bill of the canteen/hotel and he handed over the tainted note to the appellant. Thereafter he gave signal and the trap party came to that place where they were sitting. J.P. Sinha (PW-9), the then Executive Magistrate, was a member of the trap party. He was also inside the canteen/hotel. He deposed in Para-15 of the cross-examination that he was sitting on a table which was at a distant of 8-9 feet from the table of the appellant, complainant and Darshandas (DW-2). He admitted that he saw that the complainant gaye money to the appellant. He could not depose as to what transpired between the appellant and the complainant before giving the tainted note to the appellant. As I have already stated that Darshandas (DW-2) was left by the prosecution, however he Was examined as DW-2 by the defence. He deposed that he was/sitting along with the appellant and complainant in •i, the canteen/hotel on a common tabl'e. After the refreshment and tea when the appellant tried to pay the bill, he was stopped by-the complainant saying that he has brought hun for refreshment and tea and complainant gave him a note of Rs.100/- and thereafter ~~'~'//'/' ^.-•'' •''6. ^. '^ '..f ':? /J' .-.^" ^ Criminal Aooeal No. 400 of 1991, some persons came there and caught the appellant. In cross- examination by the Public Prosecutor absolutely nothing could be brought on record in their favour from the evidence of Darshandas (DW-2). In fact, a formal cross-exan'iination of 2 lines has been done. On appreciation of the prosecution evidence, we find that it was not proved that whether the amount of Rs.100/- was given by the complainant to the appellant as illegal gratification or it was given to the appellant by the complainant saying that he should pay the bill of the canteen/hotel out of this aruount. The prosecution has failed td adduced any evidence as to what conversation took place between the appellant and complainant prior to handing over the tainted currency note to the appeUant by the complalnant. However, it has been brought by the defence by the evidence of Darshandas (DW-2) that the complainant gave the currency note to the appellant saying him to inake payment of the canteen/hotel bill. Therefore the evidence relating to demand and acceptance of illegal gratification appears to be shakey. (8) Darshandas (DW-2) was a shadow witness. He was throughout present with the complainant from his village itself. "The complai^iant admitted in his cross-examination, in Para-23, that when the appellant m'et him in the Collectorate, Darshandas (PW-2) was accompanying him (corriplainaLnt). He very clearly admitted that he had made up his mind at Korba for trapping of the appellant and he had brought Darshandas (DW-2) with him .^' •_' ^' ^ '•N ^ Criminal Appeal No.400 of 1991 ^: from Korba. He had gone sdong with Darshandas (DW-2) to the Collectorate. Thereafter he also took him to the Comraissioner's Office. He clearly adraitted that he had brought Darshandas after telling him that today he J-ias to get the appellant trapped. He further adniitted in clear.words that from Korba till seizure of curreney note from the possession of the appellant, Darshandas (DW-2) was throughout present with him. This shows that Darshandas (DW-2) was a shadow witness. This shadow witness was not examined by the prosecution and when the defence examined him, he gave unrebutted version that the currency note was given to the appellant by the complainant for payment of bill ofthe canteen/hotel. On the above conduct ofthe shadow witness and its affect on the prosecution case, Mr. Abhishek Sinha has placed his reliance on the judgment of Smt. Meena Balwant Hemke -Vs-^tate Qf Mcihargshtrct, AIR 2000 SC 3377. In the said case, one of the panch witnesses, who accompanied complainant as a shadow witness, when he tried to give the bribe, did not support the prosecution case. Another shadow witness, who first. arrived on the spot after the signal was given by the coniplainant, was not examined at the trial and the version of the complainant was rendered untrustworthy by the contradictory version of the very incid^n^ given by him when examined in departmental •ir . proceedings. The recovery of the nofe was from the pad of the tdble of the accused. Though the applicability of this judgment has to be examined after scrutiny ofthe evidence of complainant- Muritram (PW-1), but one thing remains unassailed that Criminal Apueal No. 400 of 1991 Darshandas (DW-2) was a shadow witness, he was not examined by the prosecution and was examined by the defence. If the evidence of Darshandas (DW-2) is accepted, he has demolished the case of the prosecutton that the appellant had accepted Rs.100/- as illegal gratiGcation from the complainant. (9) In Sura? Mal -Vs- State IDelhiAdmn.). (1979) 4 SCC 725, the Supreme Court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. This judgment was relied in C.M. Girish Babu -Vs- CBI, Cochln, High^purt of^Kerala^t2009L3 SCCL779. C.M. Girish was further referred to in Banarsi Dass -Vs- State of Haryana, AIR 2010 SC 2589 and it was held that mere proof of recovery of bribe money from accused was not sufficient to prove offence and proof of demand and acceptance of the bribe was essential. (10) In the presertt case, except the evidence of Muritram (PW-1), / there. is not evidence that the appellant made demand of Rs.100/- -<• from complainant- Muritram (PW-1). The appellant was Patwari of a Circle belonging to Korba which is at a distance of more than 100 Kms from Bilaspur. It does not appear from the evidence of the'eomplainanf that. fhe appellant had said him that he will meet ..^ r'" ^' Criminal Appeal No. 400 of 1991 him at Bilaspur on a particular day. How the complainant came to know that on the fateful day he would be meeting the appellant at Bilaspur and he should go to the Bilaspur with the preparation of trap ofthe appellant. Complalnant Muritram. (PW-1) in clear words deposed that he had made up his mind in his village for the trap of the appellant and for this purpose he had brought the shadow witness- Darshandas (DW-2),who in fact did not support him. Muritram (PW-1) deposed in Para-4 that he met the appellant near the Election Office. The appellant demanded bribe from him. On this he said that today he has br'ought Rs.100/- which he will give to him after sometime. After this he went to the Collectorate and made a report. Darshandas (DW-2) has also not supported the above version of the complainant. (11) Rohit Kumar (PW-2) is the concerned Naib Tehsildar, he had issued the copies of the revenue records to the Vigilance Officer. He deposed in Para-2 that it is necessary to make a proclamation before mutation in revenue records. Proclamation is made by certifying officer. The certifying officer also gives notice to the parties. After appearance of both the parties necessary orders are passed. Orders relating to proclamation or issuance of notices are recorded Jn/the relevantorder-sheets. The Revenue Inspector only certifies the undisputed iteutations and some percentage of such mutations passed by them are checked by Tehsildar. This version shows that Patwari has hardly a decisive role in the mutation of names in revenue records and he cannot do it without ./-^.•' /'^•'" 10 Criminal Appeal No. 400 of 1991 rzn proclamation and wifhout necessaiy orders passed by the certifying officer in a revenue proceeding conducted for the same. Even otherwise also we take judicial notice that u/s 110 of the M.P. Land Revenue Code, as it then was, powers of mutation were never vested with the Patwari and Patwari had to act in accordance with the orders passed by certifying officer like Revenue Inspector in undisputed matters and Tehsildar/Naib Tehsildar in disputed matters. Moritram (PW-1) has once fought election for Legislative Assembly from Korba area. He was also associated with the labour affairs and labour movements. This he admitted in Para-20 and he also admitted in Para-21 that at an earlier occasion one Station House Officer namely H.K. Shukla was also trapped on his instance. When nothing substanti.al was in the hands of the appellant in the matter of mutation, why the appellant would demand Rs.600/- for that purpose from the complainant and why the complainant will give Rs.200/- at an earlier occasion and Rs.100/.- on the date of the trap. The allegations made by the complainant, in light of the above facts and circumstances and also in light of the evidence of Darshandas (DW-2) does not appear to be fully reliable. (12) In Panft1.al Danwdar Rathi -Vs- State of Maharashtraj_A!R 1979SC 1191 and Gulam'JWahnwod A. Malek -Vs- The State of Gufrat.AIR 1980 SC 1558, on which the'reliance has been placed by learned counsel for the appellant, the Supreme Court held that the coxnplainant would be in no better position than accomplice after 'x 11 Criminal Appeal No. 400 of 1991 ^ introduction of S. 165-A IPC and there could be no doubt fhat the evidence of the complainant should be corroborated in material particulars. After introduction of S. 165-A of the IPC maldng the person who offers bribe. guilty of abetment of bribeiy the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crim.e has to be insisted upon. In Panalal (supra), there was no corroboration of testimony of the complainant regarding the demand for the money by the appellant. The Supreme Court said that on this crucial aspect, therefore, it has to be found that the version of the complainant was not corroborated and, therefore, the evidence of the complainant on this aspect cannot be relied on. This was the position prior to 1988. Though Sections 161 tol65-A were later on omitted, the principles laid down by the Supreme Court can well be applied for appreciation of the evidence of Muritram (PW-1). I am of the view that in light of his above conduct and also in light of the evidence of Darshandas (DW-2), the version of the complainant (PW-1) was not corroborated and was not fully reliable and ratio laid down in Meena Balwant (supra) can be applied in the 'present case also. f (13) 'In Trilofc Chand Jain -Vs- State of Dethi. AIR 1977 SC 666, the. Supreme Court following the judgment in Mahesh Prcisad Gupta -Vs- State of Rafasthan. AJR 1974 SC 773, held that the degree .and the character of the burden of proof which Sec. 4(1) /''«.. 12 Criminal Appeal No. 400 of 1991 (^ casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under Section 101, Evidence Act rests on the prosecution. While the mer.e plausibility of an explanation given by the accused in his examination under Section 342, Cr.P.C. (as it then was) may not be enough, the burden on hini to negate the presumption 'may stand discharged if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour; it is not necessary for him to establish his case beyond a reasonable doubt. (14) The learned Special Judge has held that the presumption raised u/s 4 (1) of the Prevention of Corruption Act, 1947 was not rebutted by the appellant. I am of the view that in light of the evidence of shadow witness Darshandas (DW-2), the cross-. examination of Muritram (PW-1) and the fact that there was no evidence on record to show that what transpired between the appellant and complainant- Muritram (PW-1) prior to giving the tainted currency note to the appellant, and further in light of the - explanation €hatthe tainted note was given for payment of bill of the'canteen/hotel, the ap^ellant has discharged his burden by showing a preponderance of probability in his favour and he was entitled to benefit of doubt. 13 Criminal Aooeal No. 400 of 1991^ (15) In the result, the appeal is allowed. The conviction and sentences awarded to the appellant u/s 5 (2) read with Section 5 (1) (d) of the Special Act and Section 161 of IPC are set-aside. The appellant is acquitted of the charges framed against him. The appellant is on bail. His batl bonds are cancelled and surety stands discharged. _ Sd/- Sunil Kumar Sinha Judge ratti