','1 ^1: A HIGH COURT OF CHHATTiSGARH AT BILASPUR (SB: Hon'b)elVlr.T.P.SHARUlA,Jl Criminal Appeal N6.422 of 1992 R.S.Goutam Vs. TheStateofM.P.(nowC.G.) POST FOR PROUNCEMENT OF THE JUDGMENT QN 6/8/2010 Sd/- T.P. Sharma Judge m ^lt/. •'' '' •^'".: •"''• .'.•';.":.lt.:,' •/' ' '^-'.' •"""• ||i:»l.u-. '.!< l^lit; ':.'?.', 1-"\. ."•-. .;.•'.•fwxstswsaiw^.sawsii •es^ss^ ^i^B^^ ffl"!S HIGH COURT OF CHHATTISGARH AT BILASPUR CriminalAciDeal No.422 of 1992 Appellanf R.S. Goutam son of T.R.Goutam, aged 42yeare, U.D.C. R.T.O. Office, Raipur, r/o Panchsheel Nagar, ; 11' \ . Raipur , -: 1'. - , •'"'', f •.':1 ^./.1.: Ve/sus : Resftohdent ; TheStateQfMP.(NowC.G.) (Criminal Appeal underSection374(2) ofCr.P.G.) (SB: Hon'bl&Mr. T.P. Sharma, J.) Present:- //.;1' ; " :- '. ' ';."" ' .'; 1 - • '"^ 1 ' ,;'/, '• .:i: ,,i.. . ', Mr.Adhiraj Surana, counsel for the appellaht. Mr.R.R.Sinha, Panel lawyerfortheState. JUDGMENT ^ (Deliveredon6tl'August,2010) 1. Cliallenge Tn this appeal is to thejudgnient of convicti6n^& order of sentence dated 7.4.1992 passed by the Second Additional Sessions Judge, Raipur, in Speciar Griminal Case No.18/87, whereby & whereunder learned Second Additional Sessions Judge after holding the appellant guilty for the offence punishable under Sections 7 & 13 (1) (b) of the Preyentioh of Gorruption Act, 1988 (for short 'the Act, 1988') sentenced him to undergo R.l. for one year & to pay fine of Rs.500/-, in defaylt of payment offine to further undergo R.l. for two. months, oneachcount. 2. Conviction is chaltenged pri the ground without there bejng any iota of eyidenGe that the appellant has demanded and accepted illegal gratificatiori'otherthahlegal remUneFation, the trial Court has convicted s / \. . ' • • : . ' . / • ^ ,; .\- ...' '; 1^1.' &sehtehcedhimasaforernentionedandther6bycommittedillegality. 3. Case o( the prosecution, irv brief, is that appellant R.S. Goutam who was posted as clerk in R.T.O.Offjce, Raipyr on 31.12.86 cornplainant Akhtar Milik (PW-2) was a need of new license, he contacted with the appellant, the appellantdemanded Rs.40/- as a bribe, hewas not ready. ;- to giye.bribe, he made complaint to the Vigilance Department; Raipur vide Ex.l?/2. . After prima facie ihquiry, trap party was constituted; Paneh witnesses O.P.Singh and 1-I.P.Sharma were called. Reactjon of sodium carbonate and phenolphthalein powder were demonstrated. The complainant produced one currency note of Rs.20/- ahd two currency notes ofRs.10/-, total Rs.40/-. Their numbers were reebrded in the primary panchnama. Currency notes were tainted with phenQlphthalein powderand kept in the pocket of the cQmplainant and he was directed not to touch the currency notes and hot to shake the hands with any other persoh before giving the amount of bribe on demand to the appellant. Primary panchnama Ex.P/3 was prepared. Trap party proceeded for the spot. Complainant Akhtar Milik went inside the office of R.T.O. where the appellant was sitting, the appellant demanded Rs.40/-,the complainanf gave the currency notes kept in his pocketbythetrapparty,theappellanttbokthecurrencynotesandkept the same in his pocket. Afterreceiving signal, trappartyenteredinto office rQom ofthe appellant, after iritroducing themselVes, they caught hold ffie hands of the appellantand hands were washed into splution of sodium carbonate which turned into pihk colour. Currency notes were recovered from poeket of the appellant. Numbersof the currency notes weretailed andalso washed intosolution pf sodium carbonate which- also turned into pinkcoloyr. Piece of paperand driving lieense^of AkhtaFMHjkEx.P/4weresejzedvideEx.P/5,CyrrencynQtesofRs.4Q/- and other moneyfound inthe pocketof the appellaritwere seizedvjde Ex.P/6. Shirt of the appellant was seized vide Ex.P/7. Register and fbrm were seized vide Ex.P/8; Final panehnama yvas prepared vide Ex.P/9. Spot map was prepared by patwari vide Ex^P/11. Dehati nalishi was recdrded vide Ex.P/15. Final F.I.R. was lodged vide Ex.P/16. Solutions were sent for chemical examination vide Ex.P/12 ahd presence of pheriolphthalein powder and sodium carbonate was cdnfirmed in;the~hand vrash solution of the^ppellant, wash sotutjQn of cun'ehcy? Ffotes and hand wash solutibn of the complainant vide Ex.PW. ! 1; .: ' 1'11- '::.'1'- ""• ,' :':- , / •";•.';'- ,-•,•. ^•.; 4. Statementsof the wifnesses were recorded under Section 161 ofthe GFJ'.C. and aftercompletion ofinvestigation, documents were sentfbr , sanctiQn; After perusal of the documents, Sahctioning ^ accoFdedsanction vide Ex.P/1. Charge sheet was fifed before the ...J., ~<i'! SpecialJydge^Raipur. ^? SSE^?K»ttSla-stiK=;-scaW^t3a*^u^rntfcy^BtSirtttEirf-rtltvnu^"^- ••' ^•'-<':\ 3— 5. In order to prove the guilt pf the appellant, the prpsecutipn has examined as many as fcvelve witnesses. The accused was examined under Section 313 of the Cr.P.C. where he denied the circumstances appearjrigagainst him and pleaded innocence and false jmplication in the crime in question. The accused has examined defence witness Shyam Lal (DW-1) who has deposed that on the date of incident, the complainant came to him and asked about one HarisR clerkwho was not present, then he told that he is required to give Rs,40/- to Harish, then he gave Rs.40/- to him and to)d to give.the same to appellant ^Goutam. Thereafter he wentaway, theh he gave Rs.40/- to appellant Goutamand thereafter, trap party came into office 6f the appellant. 6. After providing opportunity of hearing to the parties, learned Second Addjtional SessionsJudge, Raipurconvicted&sentenced theappellant- as afbrementioned. 7, 1 have heard learned counsel for the parties, perused the judgment jmpugnedahd recordofthetrialCourt. ' 8. Learned counsel fbr the appellant vehemently argued that the present appellantis facing trial since 1987aboutsince last23yearswithouthjs fault, therefbre, on this ground alone, he is entitled for acquittal. Learnedcounselfurtheraguedthatinttiepresentcase.theprosecution has utterly failed to prove demand and acceptanee of , illegal gratification other than legal remuneratiort. Money has not been- recovered from the appeljant. Even btherwise, only possession of mQneyorrecoveryofmQneyfrQmtheaccused is notsufficientto prove the factum of demand and acceptance of illegal gratification. In the present case, evideriee aclduced on behalf of the prosecution clearly reVeals that trap party was searching another person who was not - present, therefore, theyhave begn implicated the preserttappellanfin the,crime in question. The appellant ;was not authorized to issue license. The alleged act was not within the purview of official duty of the ; ! •;appellant\ :• • ;.'': 1,' \:'"/ - .^ "•': - . .1 ;^.. '-'^.':1,:/;,: •' . ' 9. Learhed counsel placed re'lianee in the matter of S.G.Nain v. Union of ^ Ihidja1; ih which the Apex Court has held Ihat petition pending forat J. feast 14 years apart from mental agony, then fajr trial becqming "-l^. f11S92.CRI.L;J:560 ^S^ua^i^s impossible and prosecution against accused was quashetl. Leamed counsel further plaeed reliance in the matter of Banarsi Dass v. State ofHaryanainwhichtheApexCourthasheldthat in the absenceof demand ahd acceptance 6f bribe, conviction is not sustaihable under thelaw.LearnedcburiselrelieduponthematterbfRajeshSinghs/0 Nageshwar Singh (Dr.) v. State ofM.P.inwhichthel-lighCourtof Madhya Pradesh has held that sanction accorded under theold aet cannotbe considered for sanction underthe.hew^ act. 10. On the other hand, learned State counsel supported the jydgment impugned and argued that evidence adduced on behalf of the prQseCutiQn is suffiGient for drawing inference that the appellant- who was working as public servant has demanded and accepted Rs,40/- from -the complainant gs illegal gratification other than legal remuneration. Moneyhas been recovered from the appellaniwhowas not offerectany explanation. 11. In order to appreciatetheargumentsadvanced on behalfof the parties, 1 haye examined the evidence adduced on behalf of the parties. 12. In the present case, incident took place on 31,12.85, atthat time Prevention of Corruption Act, 1947 (for short 'the Act, 1947') was in forceand the samewas repealed bythe Prevention of CorruptionAct, 1988 (for short 'the Act'1988) (Act 49 of 1988) which came into ftirce from 9.9.1988. Sanction for .prosecution of the appellant has been accorded underthe provisions of old Act, 1947 on 20.3.1987, Atthe timeof framingofthe chargei.e.20.11.89, the Act, 1988 was in force andthe trial Court hasframed the chaFgeunderSections? & 13 (1) (b) of the Act, 1988, although to avoid anomaly; the Court was required to frame the charge under both the actsor even Gompetent to frame the eharge under the olcl act. Provjsions ofthe then prevailing.Section 161 c^the I.P.C. andSection 7of the Act, 1988 are one and the same. Likewise provisions of SectTbn 5 ofthe old act and Sectipn 13of new act are one and the same. Therefore, trial pending before the Court wgs competent ih terms of Section 30 (2) of the Aet, 1988 for taking 2AIR20iOSC1589 - 32Q07(1)M.P,L.J.154 t' — s", cognizance of the offence under the provisions of Prevention of Corruptioh Act. Sahction to prosecute the offender iss/ne qua non. 13. In ordertoprove the sanction, the prosecution has examined Shrikant (PW-1J who has deposed that the then TranspQrt Commissioner Ramratan has aceordedsanction vide Ex.P/1. In his cross-examination he has admitted that the Transpprf Commjssioner has not prepared Ex.P/'l in his presence. He has proved signature upon Ex.P/1 . Grant of sanction is a public duty and sanction order is public document. It can be proved even by its productiony 14. While dealing with the question of prove of sanction the Apex Court in fhe matterof Mohd. Iqbal Ahmed v. Stateof Andhra Pradesh has held that it is incumbent qn the prosecution to prove that a valid sanctipn has been granted by the SanGtioning AutBQrity after it was ' satisfied that a case for sanctibh has been made out cQnstituting the offence. This should be done in two ways; either (1) by producing the original sanction which itselfcontains the facts constityljng the offence ancf fhe grourids 6f satisfaction and (2) by adducing evidence aliunde td show the facts placecl before the Sanctioning Authority and the satisfaction arrivedatbyit. 15. While dealingwith thesame question the Apex Court in the matter of State of Tamil Nadu v. Damodaran has held that tlTe prosecution i? required to place all relevant material before Sanctioning Aythority for ajscording sanction and Sanctioning Authority is required to accord sariction a'fterapplyinghismind. . 16.In the present case, sanctjon order contents brief history of the ease and after considering the material against the appellant, the Transport Commissioner has aecordedsanctiQn. It shows that afterapplication of , mind, ^the Tyansport Commissioner has accorded sanctjon. Ex.P/1 sanction accorded bythe Transport Commissionerwho was competent to accord sanetion as valid sancfion underthe law. 17. As regards the complicity oftheappellant in the crime in question, it is ^ not disputed that the appellant was workingas clerk in R.T.O.ofRce on fhe date of incident i.e. as a public servant and was dischargihg his 4Al8^979SC677 .5AIR 1992 SC 1563 :s. ':.lt-. .1'1"'.'. '-'" rj-'^"^ officiat duty. By examining defence witness Shyam Lal (DW-1), the present appellant has admitted the possession of Rs.40/- the .alleged trap amount at the time 6f incident, although Shyam Lal <DVV-1) has deposed that the present comptainant gave him Rs.40/- for paying the same to Harish, thereafter the complainant directed him to give the same tb the appellant, then'he gave money to the appellant which the appellanthad received.GQmplainantAkhtarMilik(PW-2)hasdeposecT in hisevidence that he wasa need Qfnew license. He has deposed in his evidence that for new license he. gave Rs.40/- to clerk eoncerned who was sitting in the office arid demanded money. Initially this witness has not supported the case of the prosecutioh and the prosecution has declared him hostile. In his cross-examination, he has admitted the eomplaint Ex.P/2 made to the Vigilance Department mentioning the name of^tha appellant. He has admitted signature 6n Ex.P/Spanchnama. He has alsoadmitted that Rs.40/- were kept in his pocket. He has also admitted that he has given the moriey to the present appellant and trap party caught hold the appellarit. He-was working as R.T.O. agent. In his cross-examination he h?s not directly supported the ease of the prosecution that he has made complaint Ex.P/2, currency notes were kept in his pocket by the trap party, the appellant demanded Rs.40/-, then he gave Rs.40/- to him, then trap partycameandtrapproceedingsWereconducted. 18. In the present case, complainant Akhtar Milik (PW-2) has not fully supported the case of the prosecution and the prosecution has declared him hostile.In his detail cross-examination, he has denied that he was having any enmity with the present appellant. 1-le.has denied the suggestion in para 9 of his cross-examiriation that he has given Rs.4Q/- to the appellant for another person Shrivastava. He has also deniedthe executioh of doeument Ex.D/2 which reveals that on / ' .' ^ .: ' . •' .' • '1/ •• . ' 1-'~' ; . 1; . !.'- :;':'. " '- 'r 1 •', account ofthis witness the appellantwas placed :in trpyble and hewas eager to implicate other persoh Shrivas.tava. He has denied signature ^oVertliatdQeument.Evidence pfAkhtar Milik (PW-2) reveals that he has not fully corroborated fhe case of the prosecution but has substantially deposed that the appellant has demanded Rs.40/-, he gave Rs.40/- fayhim and he has not gjven Rs.40/- to the appellant fbr. V^sUTerpersonShrivastava.Hehasnotexecutedanyletterinthestyleof :)1. BIJ Si ;: ! •iB"l'"»S. '• -f-..' *•. K '<•' -7 Ex.Q/2. Defence has confronted Ex.D/2 to the witness which shows that defence has fried to create pressure upon this wjtness.Th^ prpsecutionhas alsoexamined pahch witness O.P.Singh (PW-3)who has substantially corrobprated the eviclence of Aktar Miljk. Deputy Superintendent of PQlice S.K.Verma (PW-12) has deposed in detail relating to conduction of trap and reeovery of money. 19. In the present case, as per suggestion given to the complainant and statementofShyamLal(DW-1),theappellantwasfouncfinpossession ofthe aforesaid currency notes of Rs.40/-, Trap party hasseized the aforesaid currency notes; Hands of the appellant and currency notes were washed with solution bf sodium carbonate. Currency notes were- also washed into solution of sodium carbonate which turned into pink colour; Same were examined by th6 ForensiG Science Laboratory, Sagar yide Ex.P/13 and presence of phenolphthalein powder and sodium carbonateWas confirmed on the hand wash solutiori of the appellant which fyrther eorrobprates that the appellant was found in possession of the aforesaid currency notes of Rs.40/-. 20. As per defenceof the appellant, the complainant has given Rs.40/-for one Shrivastava. As per evidence of defence witness Shyam Lal (DW-2), the complainant gaive Rs.40/- for Harish; may be Shriyastava, thereafter the comptainant directed him tb give the mohey to'the appellant which he refused, but ultimately he received money ahd gave the same to the appellant. -The appellant has not offeFed any explanation that when he was notauthorized by Stirivastava or is not agent by Shrivastava, then why he has received Rs.40/- for Shrivastava. As per suggestion given by the defence to the complainant Aktar Milik, the complainant has given Rs.4Q/- to the appellant for ShFivastava but as per evidence of defence witness Shyam Lal (DW-2), the complainant has ript given any money to the appellant directly, but has gtifgn rnoney to defence witness Shyam Lal whp ultimately gave the same to theappellant, although ctefehce is riot required to prove his defence directly. Standard of propfjor defence is not similar to the case df the proseeutjon. The defenee is required to throwsuspteionuponthecaseoftheprosecutionormakettieprobable : .lt, r"T g 21. In the present ease, defence taken by the appellant is complete contrary to each other and in these circumstanees, the phlyevidence remain for consideration is the evidence of the prosecution witnesses whohavecategoricallydeppsedthattheconnplainanthasgivenRs,4Q/- to the appellanf which he received and were seized by the trap party. There was no propriety for recejving the mpney from the complainant. The appellant has notoffered any explanation for receiving such money for official duty or for othfer purposes. Inter atia, fitatements of the eomplainant and other witnesses are sufficient for drawing inference that the present appellant has demanded and receiyed Rs.40/- for preparation of license. ; 22. As held by the High CourtofMadhya Pradesh in the matterof Rajesh Singh <supra), the prosecution is required to prove the valid sanctipn and sariction accorded under the old act cannot be used for sanction under the new act, In the present case, Ex.P/1 sanction has beien aecorded under the old act i.e. under Sectrpn 6 (1) (b) and (c) of the Act, •1947 (Act 2 of 1947). The prosecution has not claimed that sanGtiort has been accorded under the provisions of the Act, 1988. Ex,R/1 clearly reveals that sanctioning authority has examined the documeFits and after consi.dering the material he has accordedsanction shovi/s that after application of mind he has accorded sahctipn. The facts ofthe case ofRajesh Singh are distinguishable on theground of faetsofthepresent case. ' 23. As held by the Apex Court in the matter of BanarsiDass (supra), in the absence of demand and acGeptance of bribe, conviction is not sustainable under the law. But in the preseht case, evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant ha§deitianded and accepted Rs.40/-. The facts of the case of Banarsi' Dass are distinguishable on the ground of facts of the presentcase. '-*• ; 24. As held by the Apex Court in the matter of S.G.Nain (supra),. proseeutioh was quashed on theground that prosecutibn waspending ' fcralmost 44 years; but jn the present case, prosecution was pending ~*) ©nly•for 5 years, thereafter, he was convicted & sentenced and he has '; 'preferned the appeat, Thjs js the case ofcbrruption againstthie publie .':ll. ' .•" -'5 -•^1:1:':11.1 ''.';.. ;/i'.'.'-'.:l;..: servaht heinous offence relating to publjc servant, therefQre, on the ground of pendency oftheappeal, proceediftg cannot beqyashed. 25. Afler appreciating the evidenee available on record, the Second Additiona! Sessiohs Judge convicted & sentenced the appellant as aforementioned. While convicting the appellant, the trial Court has not committed any illegality. 26, As regards the question pf sentence,tlTe trial Coyrt has sentenced to yndergo R.l. for one year& fine of Rs.500/- on each coynt. Minimum sentence pf one year has been provided underSection 5 (1)(d) read with Section 5(2)oftheAct, 1947, butno minimum sentence has been provided underSection '161 ofthel.P.C. (repealed provision). Section 7 of the Act, 1988 provides minimum sentence of sb< monthsand Sectiqn 13 offfie Act, 1988 provides minimum sentence of one year. The trial Court has awardedminimum sentence of pne year. 27. For the foregoing reasons, 1 do not finct any merit inthis appeal. The appeaFbeing devoidofmeritis liable to.be dismissed and it is hereby dismissed. The appellant is on bail, he shall surrender immediately before the Second Additional Sessions Judge, Raipur for serving remamingpart ofsentence. ^/- T.P. Sharma ? Judge l1..',