}1(!?' ^^') HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: RESPONDENT: Criminal ApDealNo.972 of 1990 DayashankerSingh Versus • The State ofM.P. (now the State of C.G.) Post for Dronouncement of iudament on 31st Auaust. 2010 Sd/- T. P. Sharma Judge N|feBSt -it^st^^ •S^i?3T^! HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: (On Bail) RESPONDENT: Criminal Appeal No.972 of 1990 Dayashanker Singh son of Foujdar Singh, aged 44 years, Forest Range Officer, Achanakmar, P.S. Kargi Road, Distt. Bilaspur,MP (now CG) Versus The Stateof M.P. (now the State of C.G.) {Criminal appealunder Section 374 (2) ofthe Cr.P.C.} Present: Mrs. Anju Ahuja, counsel for the appellant. Mr. R.R. Sinha,PaneTLawyerforthe State/respondent. Sinale Bench: Hon'bleMr. T.P. Sharma. J JUDGMENT (Delivered on 31stAugust, 2010) 1. Challengein this appeal is to the judgment of conviction & order of sentence dated 12-10-1990 passed by th'e 4th Special Judge, Bilaspur! in Special Criminal Case No.6/88, whereby & whereunder learned Special Judge after holding the appellant guilty for demanding and accepting illegal gratification other than legal remuneration by misusing the office, convicted the appellant under Sections 161 of the I.P.C. & 5 (1) (d) read with Section 5 (2) of the Prevention of CorruptionAct, 1947 andsentenced him to undergo R.I. for one year and to yndergo R.I. for twoyears & pay fine of Rs.2,000/-, in default of payment of fine to further undergo R.I. for six months, respectively. 2. Conviction is impugned on the ground that without any iota of demanding and accepting bribe, the Court below has convicted & sentenced the appellant and thereby committed iliegality. 3. Case of the prosecution, in brief, is that the appellantwas posted as Ranger in the Forest Department at Achanakmar Reserve Forest. Cpmplainant Sohanlal (PW-1) was dealing with mahul leaves, a forest produce. In the month of October, 1986 the complainantsent truck for transportationof mahul leaves, but the appellant returned the truck and directed the clerkofthe complainant to inform the complainant to come with money for issuance of transit pass. The comptainant was not ready to give bribe. He filed an application before the Deputy Superintendent Of Police (Vigilance) on 17-11-86. After preliminary enquiry, trap party was constituted and witnesses R.K. Pandey & Sainat Ram were called.' The compjainant produced, fivecurrency notes pf Rs.100/- each, numbers of which were recorded in the preliminary panchnama,same were treated with phenolphfhalein powderand kept in the shirt of the complainant. The complainant was directed not to touch the currency notes before giving thesame to the appellant andnot to shake hand with any other person. He wasalso directed.to give signal after giving the bribe. Reaction of sodium carbonate & phenolphthalein powder was demonstrated. Primary panchnama was prepared vide Ex.P-2. Trap party proceeded for the spot. The appellant was present in his house, trap party took its position, the complainant went to tfte, house of the appellant, the appellant demanded Rs.SQO/- as bribe and thecomplainant gave Rs.500/- kept by the trap party in his pocket to the appellant which the appellant received and kept the same in the pocket of his full pant. After giving signal by the complainant:, trap party entered in the house of the appellant and after giving introductiori, posf-trap proceedings were initiated. During the proceedings, the appellant threw the currency notes on the floor. Handsof the appellant and the complainantwere washed wjth sodiym carbonate solution which turned into pink colour. CurrencY notes were taken up by witnesS Pandey and numbers were. tallied. They were also washed with the solution of sodium carbonate which also turned into pink colour. Currency notes and full pantwereseized vide Ex.P-10. Final panchnama was prepared vide Ex.P-9. Other currency notes andotherarticles were seized from the appetlant vide Ex.P-11. Dehati nalsi was recorded vide Ex.P-12. F.I.R. waslodged vide Ex.P-13. Seized solution wassent for chemical examination vide Ex.P-14. Presence ofsodium carbonate & phenolphthalein powder was confirmed in hand wash solution and pocket wash solution ofthe appellant vide Ex.P-lSA. 4. Statements of the witnesses were recorded under Section 161'of the Cr.P.C. and otherdocumentswereseized. Material collected during the course of investigation was placed before the sanctioning authority and the sanctioning authority has accorded sanction vjde !t . ;? , .<• Ex.P-4. After completion of investigation, charge sheet was filed before the Special Judge, Bilaspur. • 5. In order to prove the guilt of the accused, the prosecution has examined as many as nine Witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & false implication. 6. The accused has taken specificdefence that the complainant has constructed temporary hut in theforest area after cutting theforest produce, forest offence was registered against the clerk ofthe complainant & the cQmplainant, the clerk of the complainant compromised the offence and the complainant was required to deposit Rs.500/- as fine which he has deposited to fhe appellant who was competent to receive money and issue receipt,and while he was preparing the receipt, trap partycame in the house of the appellant and caught hold of him. The appellant has also taken defence that he wasnot competent to issue transit pass, previously other authorities have issued transit pass to the complainant, but on thaf day the complainant hasfalsely implicated him in fhe crime !n question. The appellant has examined defence witnesses M.R. Thakre (DW-1), S.N. Ram (DW-2),Vinod Bhushan Shukla (DW-3), Jauharilal Shukla (DW-4) & Prakash Yadav (DW-5) in support of his claim. 7. After providing opportunity of hearing to the parties, learned Special Judge convicted & sentenced the appellant in theaforesaid manner. 8. I have heard learned counsel for the parties and perused the impugned judgment as also the record ofthe trial Court. 9. Learhed counsel for the appellant vehemently argued that in the present case, the complainant has never applied for transit pass to the appeltantand the appellant wasnot competent to issue transit pass. The complainant had constructed one temporary hut in the forest area after cutting and removing forest produce through his clerk on which forest offence was registered against him and his clerk. Clerk of the complainant entered into compromise and the competent authority has impQsed fine of Rs.500/-. The complainant was required to deposit fine.At the tlme of alleged incident, the,, .iS ffi'MSfev'l! w ^ l^ connplainant cohfacted the appellant to deposit fine amount and he has tendered Rs.500/-, the appellant was preparing receipt of the same and at that time, he was caught red handed. The appellant has neither demanded nor accepted bribe, he has demanded and' accepted the amount of Rs.500/- as fine for which he was competent. Learned eounsel placed reliance in the matter of Banarsi Dass v. Stateof Haryanalin which the Apex Court has held that mere proof of recovery of bribe money from accused is not sufRcient to prove the offence, the prosecution is required to prove the Jactum of demand and acceptance of bribe. Learned counsel further placed reliance in the matter of Ram Prakash Arora v. The State of Punjab in which the Apex Court has held that evidence of interested and partisan witnesses who are concernedin thesuccess of the trap must be tested in the same way as that of any. other' interested witness. In a proper case the Court may look for independent corroboration beforeconvicting the accused persons. Learned counsel also placed reliancein the matter of'Abdul Rahman Sheikh v. State of M.P.3 in which the High Court of Madhya Pradesh has held that in case of failure of first trap, factum of second trap is not understandable. Learned counsel relied upon the matter of Dwarkaprasad Ramnath Gupta v. State of Madhya Pradesh4 in which the High Court of Madhya Pradesh has held that receipt of money by accused raises presumption against him under Section 4 (1) ofthe Preventionof Corruption Act, 1947, accused may discharge onus by preponderance of probability. Learned counsel further relied upon the matter of Smt. Meena Balwant Hemke v. State of Maharashtra in which the Apex Court has held that mere recovery of money from pad on the table of theaccused is not sufficient to prove the factum of demand and acceptance of bribe. Learned counsel also relied upon the judgment dated 4-8-2010 passed by this Court in Criminal Appeal No.749/1993 (Baharata Ram and another v. The State of Madhya Pradesh) in which it has been held that mere recovery of bribe amount is notsufficient to prove the factum of demand and acceptance of bribe. Learned counsel placed reliance in the matter of Ram Kumar Verma v. ^ ' 2010 AIRSCW 2282 2 ALR 1973 SC 498 32002(3) M.P.H.T. 330 4 1987 M.P.L.J. 527 5 AIR 2000 SC 3377 l. ^^;'fc^<^^-^!- ^^^'f-"^ Bff State of M.P. in which this Court has held that mere recovery of tainted currency notes is not sufficient to prove the factum of demand and acceptance of bribe. 10.0n the other hand, learnedState counsel vehemently opposed the appeal and submitted that in the present case, the appellant has accepted the fact that he has demanded andaccepted Rs.500/-from thecomplainant, hut the appellant has offered explanation that he has demanded money asrecovery of fine and has not demanded' bribe, however, the appellant has failed to discharge his burden and the trial Court has rightlyconvicted &sentenced the appellant. ll.In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence availableon record. l2.In the present case, as per the evidence of Sohanlal Agrawal (PW-1) - complainant, Ramdinkar Pandey (PW-8) - Assistant Director (Agriculture) and H.N. Shukla (PW-9)—Inspector, the appellantwas found in possession of tainted currency notes which were kept in the pocket of the complainant for giving thesame as bribe on demand' by the accused. As per the evidence of Sohanlal Agrawal (PW-l), he has given money to theappellant which the appellant had taken. As held by the M.P. High Court in the matter of Dwarkaprasad (supra) and in accordance with Section 4 of the Prevention of Corruption Act, 1947, it raises presumption that the accused has demanded & accepted bribe, but presumption is rebuttable and it can be rebutted by preponderance of probability, no sfrict proof is required. l3.In order to discharge his burden, the appellant had examinedM.R. Thakre (DW-1) - Superintendent working in the Forest Department who has deposed in his evidence that he was competent for compromise relating to forestoffence, he has produced and proved document Ex.D-4, document of -compromise with complainant Sohanlal Agrawal through Prakash Yadav in which Rs.500/- fine was imposed. This witness has also proved the documents relating to forest offence viz., Exs.D-5 to D-9, statement of Prakash Yadav Ex.D-10, statement ofRam Singh &Pratap Singh Ex.D-lland Ex.D- 12. This witness has further deposed that he has sent the recovery memo of Ex.D-5 to the Range Officer, Achanakmar. 2010(1) C.G.L.J. 68 :"•?»,. ^-u^ •^ IEIKh, ••-nii' 'fvssfs^itfl fata-t's'gNNixa 14.S.N. Ram (DW-2) - Ranger has deposed that money receipt Ex.D-13 contains writing of the appellant. Ex.D-13 isa halfwritten receipt in which the words 'Bilaspur Achanakmar Prakash i^aste Sohan Lal' Agrawal' have been written. Thiswitness has further deposed that previously transit passes Exs.D-14 to D-18 have been issued to the complainant for transportation of mahul leaves by the-Range Assistant. Vinod Bhushan Shukla (DW-3) - Range Officer hasalso proved Exs.D-13 to D-17. Jauharilal Shukla (DW-4) - Forester has deposed in his evidence that forest offence was registered against Prakash Yadav who entered into compromise and Sohanlal Agrawal has written letter Ex.D-24 to him relating to construction of temporary hut, in tiis letter pad. Prakash Yadav (DW-5) - clerk of the complainant has alsocorroborated the document Ex.D-24 and' has admitted the registration offorestoffence and compromise in the forest offence. These documents are related to 3-10-86 & 4-10- 86 prior to the dateof commission ofoffence i.e. 17-11-86. iS.Evidence ofthese witnesses are based on the documents which cannot be doubted,atthis stageand which reveal that clerk ofthe complainant has collected forest produce without permission ofthe forest authorities and has started construction of temporary hut for collection and temporary storage of mahul leaves. Forest offence was reglstered against the complainant through his clerk Prakash, Yadav in which he entered intQcompromise. The complainant has written letter Ex.D-24 to the Forester relating to the same activity. As per Ex.D-4,fine of Rs.500/-was imposed upon thecomplainant and the complainant was required to deposit Rs.500/- to the forest authorities. Ex.D-13 is half filled copy of money receipt containing thewords 'Bilaspur Achanakmar Prakash vaste Sohan Lal Agrawal' which have been written by the appellant. As per the defence of the appellant, the complainant came to him for depositing fine imposed upon him, the complainant produced Rs.500/- which he receivedand when he was preparing money receipt, trap party came to his house, and seized the money. Theappellant has suggested the complainant and the prosecution witnesses to this effect which the complainant has denied. 16.As per the evidence of Vinod Bhushan Shukla (DW-3) — Range Officer &S.N. Ram(DW-2) - Ranger, previously Exs.D-14to D-18, transit passes, were issued to the complainant relating to !.l. ' . b' ^" ^s' i-^3 7 transportation of mahui leaves from Achanakmar Reserve Forest at the instance of thecomplainant. This shows that the complainant has never contacted the appellant for issuance oftransit pass and he used to contactanotherAssistantRangerfor issuance oftransit pass. The complainant was previously not in contact with the appeliant. l7.In the present case, Deputy Superintendent of Police Markam has conducted trap; but the prosecution has not examined Markam who' has conducted trap. Except the complainant, nobody has supported the case of the prosecution that the appellant has demanded and accepted illegal gratification. Inter alia, by examining defence witnesses, defence has tried toestablish that the appellant was authorized to collect flne amount, the complainant has tendered Rs.500/- as fine which the appellant ftas received and atthe timeof issuance of receipt Ex.D-13, trap party entered in the house of the appellant and seized the aforesaid amount. iS.Defence is not required to prove its case beyond all reasonable doubts; it is required to establish its case by preponderance of probability. Evidence adduced on behalf of the defence is sufficient fordrawing suspicion on the case ofthe prosecution. As held by the Apex Court in the mgtter of Ram Prakash (supra), evidence of interested and partisan witnesses who are concerned in the success of the trap must be testedin the same way as that ofany other interested witness and in a proper case the Court may look for independent corrQboration before convicting the accused persons. l9.In the present case, except the complainant nobody has supported thecase of the prosecution and the defence has adduced evidence to' show thatthe appellant has demanded and accepted moriey as fine and not as bribe. As held in the matters of Ram Kumar (supra) and Banarsi Dass (supra), mere recoveryof money-isnot sufficient to establish the factum of demand of bribe. 20.In thepresent case, considering thespecific defence on the basis of ocular and documentary evidence, it is difficult to hold that the appellant has demanded and accepted illegal gratification other than legal remuneration by abusing his office. Evidence adduced on behalf of the defence is sufRcient for throwing doubt on the case of the prosecution. :...L ni lfce- Soma 8 21.In these circumstances, without any further corroboration in absence of evidence of Investigating Officer, it is difficult to hold that the appettant has demanded and accepted illegal gratification. While convicting the appellant, the trial Court has not considered the most material aspect of the case and the fact that the defence has succeeded in throwing suspicion upon the case ofthe prosecution by prepQnderance of probability, and thereby committed illegality. Conseqyently, conviction & sentences imposed upon the appellant under Sections 161 of the I.P.C. & 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 are not sustainable under thelaw. f 22.The appeal is allowed. Conviction & sentences imposedupon the appellant under Sections 161 of the I.P.C. & 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 are.hereby set aside and the appellant is acquittedof the said charges. He be set at liberty forthwith, ifnot required in anyother case. Sd/- T. P. Sharma Judge 'I.',