4 ET THE 13.KSH. COURT OF CEIHa.TTIS(MEH AT BILASFaB / cp.A. ^ r-iy/ c-"^ Xppellant : Baraturam Verma, S/o Punauraa Verma, aged 32 jrs,, B/o Hehra Nagar, Beliind «riwsji Rlce Mll, Bilaspur, Versus RespoBiderrfc t State of Chhattisgarii, •HiroQgfci the Special PoMce Establish- meat, Offlce of tlie Loksyulct, Brancli Bilaspur^ \ ffiMGEABTDUM OF CBIB03TAL APPEAL U/S 374(2) QF THB CODB OF ./^ d\ CBIMINAL PROCEroEE .'* \^' - _———————— —._ ^-^ HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 767/2002 APPELLANT Baraturam Verma (^ RESPONDENT Versus State of Chhattisgarh .<^, ty \{^- ^^ ^ l^[^ Post for pronouncement of the judgment on f 3 -5-201 1 a^ ^ ^ °_P_f_L Sd/- Pritinker Diwaker Judge ^s ^. HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker CriminalAppeal No. 767/2002 APPELLANT Baraturam Verma RESPOJ1DENT Versus State of Chhattisgarh Shri P.K. Verma learned Sr. counsel with Shri Vivek Sharma for the appellant. Shri Akhil Mishra, Dy. GA for the State. CRIMINAL APPEAL UNDER SECTION 374 (1) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (/g.05.2011) This appeal is directed against the judgment and order dated 19.7.2002 passed by Special Judge, Bilaspur, in Special Case No. 1/2000 convicting the accused/appellant for the offence punishable under Sections 7 and 13(1) (d) read with 13 (2) of the Prevention of Corruption Act and sentencing him to undergo rigorous imprisonment for six months u/s 7 and rigorous imprisonment for one year and pay fine of Rs. 5000 u/s 13 (1) (d)/ 13(2) of the Prevention of Corruption Act, plus default stipulations. 2. Case of the prosecution in brief is that on 11.11.1998 the accused/appellant was working as Chief Executive Officer, Janpad Panchayat, Pamgarh, District Bilaspur and the complainant namely Vishwanath Gadhewal (PW-4) was holding the post of Panch in Gram Panchayat, Silli whereas his wife Revati Bai (PW-12) was the Sarpanch of the said Gram Panchayat. It is alleged that the complainant made a written complaint (Ex. P-2) on 7.11.1998 to S.P. Lokayukta that the accused/appellant was demanding Rs. 3000 for sanctioning the amount of Gram Panchayat. After receipt of the sajd complaint, tape recorder and cassette were given to the complainant to record the conversation regarding the demand of bribe by the accused/appellant. It is furi:her case of the prosecution that on 8.11.1998 complainant came to the house of the accused/appellant and when demand was made, he recorded the conversation and thereafter he went back to the office of Lokayukta on 1 '^^"""j i \ ^^// ^.^^ -2-- 10.11.2008, made a fresh written report Ex. P-5 and after receiving the said report along with the cassette, police registered FIR (un-numbered) Ex. P-6 against the accused/appellant. On 11.11.1998 trap party headed by B.K. Pavaiya (PW-10) Inspector (Lokayukta) was constituted, two independent witnesses namely J.R. Bhagat and B.S. Verma, both Tehsildar were called, transcription of conversation Ex. P-4 recorded in the cassette was made, test was demonstrated by applying phenolphthalein powder on 30 currency notes of 100 denomination which were given by the complainant and then the trap party went to the office of the appellant at around 11 a.m., complainant entered the office of the accused/appellant and gave the bribe amount of Rs. 3000 to him, conversation was recorded by the tape recorder and transcription of the same is Ex. P-9. After receiving the signal from the complainant the trap party entered the office of the accused/appellant and seized the bribe amount of Rs. 3000. Thereafter, trap panchnama Ex. P-11 was prepared, phenolphthalein test was conducted which proved positive vide FSL report Ex. P-1 and on 13.11.1998 FIR Ex. P-17 was registered against the accused/appellant. After obtaining sanction Ex. P-30, the challan was filed on 29.3.2000 for the offences under sections 7, 13 (1) (d) and 13 (2) of the Prevention of Corruption Act. 3. So as to hold the accused/appellant guilty, prosecution has examined 12 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. This apart, one Ashwani Kumar Sidar (DW-1) has also been examined by the defence in suppbrt of its case. In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused/appellant has taken the defence that he accepted the amount of Rs. 3000 from the complainant as advance for purchasing pipes to complete the construction work of the road from Silli to Jogikapa. According to him, the assembly elections were approaching but the construction work of the road could not be completed on account of non availability of pipes at Bilaspur and Janjgir. He has stated that the Sarpanch had requested him to arrange the pipes from Raipur or somewhere else. Sarpanch is also ^s^ 'if ^. ".-•-.^••.•^. % ^ ^^•:^-!'^^ . ^:^ s ^^^ •^^—.,:'"' -a>- said to have promised him to pay Rs. 3000 as advance either personally or through herhusband. 4. After hearing the parties, the trial Court has convjcted and sentenced the accused/appellant as mentioned above in paragraph No.1 of this judgment. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the appellant submits that the appellant never demanded any bribe as alleged by the prosecution in this case. He submits that number of works in Janpad Panchayat Pamgarh were being carried out and there was an order of the Collector to complete the entire incomplete work before the assembly elections. He submits that during this period Sarpanch of Gram Panchayat Silli namely Revati Bai (PW-12) had requested him to arrange the pipes as construction work of road and culvert was to be completed from Silli to Jogi Kapa. He submits that the Sarpanch had also told the accused/appellant that Rs. 3000 would be sent either by her or through her husband i.e. the complainant herein and that on the date of incident itself the amount was received by him for purchasing the pipes. He submits that the prosecution has failed to prove demand of illegal gratification which is sine qua non for convicting the accused under sections 7 or 13 (1) (d) and 13 (2) of the Prevention of Corruption Act and without proving the same presumption cannot be drawn against the accused/appellant. He submits that even if presumption is raised as per Section 20 of the Prevention of Corruption Act, the accused/appellant has established his case beyond preponderance of probability that he has not accepted the amount as illegal gratification. He submits that even the complainant has not supported the case of the prosecution and has been declared hostile. He submits that even the wife ofthe complainant namely Revati Bai (PW-12) has categorically deposed that amount of Rs. 3000 was given to the accused/appellant as advance to purchase the pipes to complete the construction work of culvert and road. He submits that except written complaint, there is no substantive piece of evidence to prove the demand made by the accused/appellant and in the absence of the same entire -\- •..^ case of the prosecution goes. He referred to the statement of defence witness who has categorically stated that there was an order of the Collector to complete the entire construction work of the road and culvert before the assembly elections and since the pipes were not available at Janjgir and Bilaspur, the Sarpanch had requested the appellant to arrange the pipes and amount of Rs. 3000 was given as advance for that. He placed reliance on the decisions ofthe Supreme Court in the matter of Banarsi Dass v. State of Haryana (2010) 4 SCC 450. 7. On the other hand counsel for the respondenVState supports the judgment impugned and submits that there is a presumption against the accused/appellant because acceptance of the amount has not been disputed by him and therefore in view of the provisions of Section 20 (1) of the Prevention of Corruption Act, the appellant is liable to be convicted. He submits that the moment the appellant received an amount of Rs. 3000, offence under Section 7 of the Prevention of Corruption Act is made out against him. He submits that every acceptance of illegal gratification whether preceded by demand or not would make out a case under said Section. He submits that a very improbable defence has been taken by the accused/appellant that he was asked by the Sarpanch of the village to arrange the pipes for the construction of road and culvert. He submits that to purchase the pipes was not the duty of the accused/appellant nor he was obliged to provide the pipes for construction of the road or culvert. He submits that there is no document on record to show that Sarpanch or Panch had ever asked the accused/appellant to purchase the pipes on their behalf. He submits that if the accused/appellant had made any effort to purchase the pipes on behalf of the Sarpanch of the village, relevant documents should have been handed over to the Investigating Officer bringing correct facts before him. He submits that the documents of Ex. D-2 to D-5 are the created documents and they are nothing but an afterthought. He referred to paragraph 15 of the statement of Jagannath Ram Bhagat (PW-9) and submits that the accused/appellant never told the trap party that amount of Rs. 3000 is not the bribe amount and it was for purchasing the pipes. He referred to paragraph 13 of the statement of shadow witness namely Meenaram (PW-3) where he has stated that the accused I'^J \^y -£>" never told anyone that amount of Rs. 3000 was accepted by him for purchasing the pipes. He submits that though the comptainant has been declared hostile, he has admitted the fact thatwritten report Ex. P-2 was made after being duly signed by him and endorsed by Dy. S.P. (Lokayukta) PW-7 and thereafter it was marked to Mr. Pavaiya. According to him, once the veracity of these documents is not disputed, demand is proved by the prosecution. He submits that the defence taken by the accused/appellant is not a probable one. 8. R. Budhvishal (PW-1) - the police constable working in the office of Lokayukta (Police) has stated in his evidence that he took thechemical solution to Forensic Science Laboratory, Sagar and collected the report Ex. P-1. Ram Sai Ram (PW-2) - another police constable had made preparation of pre trap Panchnama. Mina Ram (PW-3) - Head Constable in the office of Lokayukta (Police) was a member of the trap party who made preparation of pre trap and participated in the trap proceedings. Vishwanath Gadhewal (PW-4) is the complainant herein who has stated in his evidence that he knew the appellant who was working as Chief Executive Officer in Janpad Panchayat, Pamgarh. According to this witness, he was the Panch of Gram Panchayat Silli whereas his wife Revati Bai (PW-12) was the Sarpanch of said Gram Panchayat. He has stated that the work allotted by the Government to the Gram Panchayat was being executed by him on behalf of his wife who at the relevant time was holding the post of Sarpanch. He has stated that part of the construction work was already done but to complete the construction of culvert pipes were to be purchased and his wife had given money as advance but he was not aware of the same. He has stated that his wife had asked him to hand over Rs. 3000 to the appellant but due to misunderstanding he made an application to the Lokayukta stating that the appellant was demanding Rs. 3000 as bribe. According to him, on 7.11.1998 he made a written application Ex. P-2, he was provided tape recorder and cassette from the office of Lokayukta, Panchnama Ex. P-3 was prepared, he took the said tape recorder to the house of the appellant and after recording the conversation between him and the appellant he returned the cassette to the office of Lokayukta after two days. Thereafter, this witness has described the further occurrence r^""' ^y|^3h| %,. %^.y ~&- including the trap. He has stated that after successful completion of trap, apart from completion of other formalities, his hands were washed and the colour of solution turned pink. He has stated thatwhen he reached his house, he came to know that the amount which was given by him was the amount for purchasing the pipes. He has stated that as the construction work of road and culvert was not completed, a question was raised in the assembly and therefore, the appellant had asked him to complete the work immediately as he (accused) was answerable for the same in the assembly. He has stated that pipes were not available at Janjgir and Bilaspur as a result of which construction work was withheld and his wife had asked him as to what blunder he had done because the amount of Rs. 3000 was given to the accused/appellant for purchasing the pipes. He has stated that as he was under the jmpression that bribe amount had been demanded by the accused/appellant, complaint was made by him due to misunderstanding. Rameshwar Prasad Sahu (PW-5) who at the relevant time was working as Accountant in Janpad Panchayat, Pamgarh is the witness to seizure'of account book of the said Janpad Panchayat. Khelan Ram Sahu (PW-6) is the Patwari who had prepared spot map Ex. P-16. Shyam Das (PW-7) is the Dy. S.P. to whom the complaint Ex. P-2 was made by the complainant and forwarded the same to B.K. Pavaiya (PW-10). Alexender Ekka (PW-8) is the witness who recorded FIR Ex. P-17 on the basis of Dehati Nalishi Ex. P-6. Jagannath Ram Bhagat (PW-9) is the witness who at the relevant time was working as Tehsildar and one of the trap witnesses, supporting the case of the prosecution has stated that complaint was read over by him to the complainant in the presence of Tehsildar namely D.S. Ve'rma and that the complainant had admitted the complaint have been gjven by him. Thereafter, according to this witness, after completing the requisite formalities the trap was made successfully. B.K. Pavaiya (PW-10) is the investigating officer who has duly supported the case of the prosecution. In paragraph No. 75 of his deposition he has admitted that the Sarpanch of Gram Panchayat Silli namely Revati Bai is the wife ofthe complainant. According to him, before arresting the accused, he had recorded his statement in which he has --7 disclosed that Rs. 3000/- were given to him as advance for purchasing the pipes for the construction work of culvert. He has stated that on this point he had not paid any heed nor made any investigation. In paragraph 73 he has admitted that Sarpanch of Gram Panchayat Silli had made a request to the appellant vide Ex. D-2 for purchasing the pipes for construction work of culvert. P.K. Swami (PW-11) is the witness of sanction to prosecute the appellant vide Ex. P-30. Revati Bai (PW-12) - the wife of the complainant (PW-4) has stated in her evidence that from 1994 to 2000 she was the Sarpanch of Gram Panchayat Silli and that she knew the appellant who was working as Chief Executive Officer. She has stated that she did not use to give commission out of the money received by her in lieu of the construction work. She has further clarified that no money was ever demanded by any officer as commission. At this stage, this witness has been declared hostile. She has however stated that Rs. 3000 were given by her to the complainant for being handed over to the appellant but due to some misunderstanding the complainant and reported the matter to the police saying that bribe of Rs. 3000 was demanded by the appellant. She has further admitted the fact that construction work of road could not be completed as the pipes were not available for the culvert falling in between and therefore the accused/appellant hadasked her to ensure completion of the said work immediately because elections were approaching. According to her, the appellant had also informed her that Collector would take action against him and her also in case the construction work was not complete, on which she had told the accused/appellant that as pipes were not available at Janjgir and Bilaspur, construction was withheld and thus she requested the appellant to arrange the pipes from Raipur for which she would send Rs. 3000 through her husband but due to some misunderstanding her husband made a complaint that the accused/appellant was demanding bribe. According to this witness, as soon as she came to know of the complaint having been made by her husband and subsequent arrest of the accused/appellant, she had scolded him and then her husband wrote a letter Ex. D-1 to the Collector and the Police mentioning the correct facts. ^ ',•^^^'-4 R »s^ ^ X; Ashwani Kumar Sidar (DW-1) has stated in his evidence that at the relevant time he was working as Gram Sahayak in Janpad Panchayat, Pamgarh and that the fund for the work of Gram Panchayat used to be allocated from Block Pamgarh under the supervision of BIock Development Officer. He has stated that payment Used to be made through chequewhich was being issued by the Chief Executive Officer. He has further stated that though construction work of road from Silli to Johidih was sanctioned, it could notbe completed and as the assembly electionswere approaching, the Collector had issued an order to all the authorities to complete the construction work of the road prior to the elections so that people may not have any difficulty at the time of election. After receiving this order from the Collector, accused/appellant had called Sarpanch Revati Bai (PW-12) and instructed her to get the work completed within a week. The Sarpanch, in turn, had informed the appellant that as the construction work of the culvert was not completed, the work of road was withheld. She had further informed the appellant that the pipes were not available to get the work completed and requested him to arrange the same from Raipur and the payment for the expenses incurred would be borne by her. He has further stated that immediately thereafter the accused/appellant had asked the Block Development Officer tocall quotations for purchasing the pipes and then he along with Mr. Thakur, BDO had gone to Raipur, collected the quotations from 2-3 shops and handed over the same to the appellant. Before he gave the quotations to the appellant, present incident had taken place but he had shown the quotations to the officers of the trap party who however had refused to accept the same. Those quotations are Ex. D-3, D-4 and D-5. 9. Having thus undertaken a broad survey of the factual aspects of the matter coupled with the evidence adduced by the prosecution the demand which is one of the basic elements to convict an accused under Sections 7 or 13 (1) (d) and 12 (2) of the Act is the demand of illegal gratification which unfortunately in this case the prosecution has utterly failed to prove the same. Evidence of the complainant (PW-4) makes it explicitly clear that on being asked by his wife (PW-12) who at the relevant time was the Sarpanch of the concerned Gram Panchayat to ,y.'^.f^:^^ ' Si-, i Ni^ 1 ^^''/ -°l- 6? X. hand over Rs. 3000 to the accused/appellant but due to certain misunderstanding he made an application to the Lokayukta stating that the accused/appellant was demanding bribe. However, according to the evidence of the complainant, after reaching home, he came to know through his wife (PW-12) that the said amount was given to the accused/appellant topurchase the pipes from Raipur to complete the construction work of the culvert as they were not available in Janjgir or Bilaspur. Thus from the evidence of the complainant who has been declared hostile by the prosecution, it is apparent that being under the impression that the amount given to the accused/appellant was towards illegal gratification, complainant was made by him to the Lokayukta. The statement of the complainant is, at verbatim, supported by the Revati Bai (PW-12) who at the relevant time was the Sarpanch of the concerned Gram Panchayat. She has also stated that the accused/appellant never demanded any amount from her towards commission etc. However, as regards as acceptance of Rs. 3000 by the accused/appellant, she has stated that as the assembly elections were due, the appellant had asked her to complete the construction work of road there-before but due to non availability of pipes at Janjgir and Bilaspur she had requested him to arrange the pipes from Raipur and payment for that would be made by her and the amount in question was towards the price for the pipes but due to some misunderstanding her husband (PW-4) had made a complaint to the Lokayukta regarding bribe being demanded by the appellant. This witness also, though at a later stage, has been declared hostile by the prosecution. Investigting officer (PW-10) though supported the case of the prosecution has categorically stated in his evidence that before arresting the accused/appellant, his statement was recorded by him in which he has disclosed that Rs. 3000 were given to him as advance for purchasing the pipes for the construction work of culvert. 10. Thus from the evidence of the witnesses, it can safely be said that the prosecution has not been able to prove the factum of demand of illegal gratification by the accused/appellant and merely an acceptance of money which admittedly was meant towards the price of pipes for construction of the culvert, to be purchased by the appellant at the request of wife of the complainant who at the relevant time was Sarpanch -10- of the concerned Gram Panchayat, the appellant cannot be convicted under this special provision. Even the evidence of the defence witness namely Ashwani Kumar Sidar (DW-1) goes to show that the advance of Rs. 3000 was given to the accused/appellant to purchase the pipes for construction of culvert and the quotations were called for the same. Thus the defence taken by the appellant in this case appears to be a probable one. This Court must notice that the Court below has fallen in error insofar as it has drawn the inference of the demand and receipt of the illegal gratification from the fact that the money was recovered from the accused. It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence. 11. In the case in hand the complainant has categorically stated that no demand whatsoever was made by the accused/appellant. It is settled position of law that mere recovery of tainted money from the aceused is not sufficient to convict the accused under this special provision especially when the substantive evidence on record is not reliable. 12. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has not been able to establish its case beyond reasonable doubts and so the Court below has fallen in legal error in not considering the evidence led by the prosecution in its proper perspective while passing thejudgment impugned. 13. Consequently, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. He is on bail. His bail bonds stand discharged. Sd/- pritinkerDiwaker Judge