/^'^ ^ y^ ^a^ s^ HIGH^OURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.789 of 1997 State of Madhya Pradesh (now State of Chhattisgarh) versus Abdul Chand Qureshi and another JUDGMENT Postfor §-7-2011 Sd/- R.S. Sharma Judge r ^.A -'^ t*»Ss>,I .^ /y ..^:- HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.789 of 1997 Appellant Respondents versus State of Madhya Pradesh (now State of Chhattisgarh) Abdul Chand Qureshi, Naib- Tahsildar, aged 39 years, Bakawand, Distt. Bastar Shri Gadharla Mutta, L.D.C./Reader, Na^b-Tahsildar, Bakawand, Distt. Bastar Present: Shri Satish Gupta, Government Advocate for the State/appellant. Shri Janak Hidko, Advocate appears on behalf of Shri R.S.Patel, counsel for the respondents. V-- Criminal Appeal under Section 378(2) of the Code of Criminal Procedyre JUDGMENT (Delivered on _^ July, 2011) This appeal, preferred by the State against |the accused/respondents Abdul Chand Qureshi and Gadharla Mutt^, is directed against the judgment dated 9-1-1996 passed by| 1 Additional Sessions Judge/Special Judge, Jagdalpur in Special Case No.2/93, whereby and whereunder the learned Special JL|dge has acquitted the accused/respondents for the offence uijider Section 161 ofthe Indian Penal Code and under Section 5(1)(a)(|3) & (d) and 5(2) of the Prevention of Corruption Act, 1947 read |with Section 34 ofthe Indian Penal Code. 2. The case of the prosecution, in brief, is as under: Complainant Dhondhu (PW-2) made a complaint befor^ the Superintendent of Police, Lokayukta, Raipur, Camp Jagdalpur stating that he was resident ofVillage Cholnar, Tahsil Bakawand. Respondent No.1 Abdul Chand Qureshi was posted and working as Naib-Tahsildar in Tahsil Office Bakawand and respondent ^lo.2 Gadharla Mutta was posted and working as a Clerk in that office. A case involving the complainant was pending before respondent No.1 regarding grant of a Patta. Respondent No.2, who was Read^r of respondent No.1, demanded Rs.800/- for giving Patta to complainant. As the complainant was not inclined to satisfy demand of bribe, he submitted a written complaint (Ex. P-2) b€(fore the Superintendent of Police (Vigilance). On the written comp being lodged, the Inspector M.C.Sharma (PW-10) summc^ned Government witnesses Salim Siddiqui (PW-7) and Shank^irlal Agrawal (PW-8) and introduced them with the complainant. ^\fter arriving at prima facie satisfaction with regard to genuineness o complaint, the Inspector M.C.Sharma (PW-10) proceeded to rr?ake arrangement for trap proceedings. A pre-trap demonstration arranged wherein a solution of Sodium-Carbonate was prepared glass. On dip of a water-paper, cotour did not change. There^fter, another piece of paper containing phenolphthalein powder |was againdipped in the solution of Sodium-Carbonate,which turnec| the solution pink in colour. A Panchnama of pre-trap was prepared ivide Ex. P-3. After giving such demonstration, the complainant was asked the the aint the was in a to present currency notes of Rs.800/-, which were submitted by on which phenolphthalein powder was smeared and kept in him the 3 / G^ pocket of the complainant. The complainant was also informed and guided as to how the trap would be arranged and the role whictTi he was required to play in the trap-proceedings. Numbers given in the currency notes were also recorded in the pre-trap proceedings vide the Panchnama (Ex.P-3). After preparing the Panchnama (Ex.P-3), arranging pre-trap proceedings therein, the trap-team proce^ded towards the Tahsil Office at Bakawand, where the complainant was asked by the accused/respondents to come with bribe money of Rs.800/-. The complainant was asked to proceed to the spot, the Tahsil Office Bakawand for giving bribe and the members o1| i.e., the trap-team gathered around the Tahsil Office at different place'^ in order to witness the incident. The complainant gave the curr^ncy notes of Rs.800/- to respondent No.1 and respondent No.1, OL those currency notes of Rs.800/-, gave currency notes of Rs.50, respondent No.2. After receiving the trap-signal, members of trap-team reached the spot immediately, caught hold of respondents, recovered the currency notes of Rs.800/- from tlfiem and seized the currency notes of Rs.750/- from respondent ^Jo.1 vide Ex.P-4 and P-5 and the currency notes of Rs.50/- respondent No.2 vide Ex. P-7. Record of proceedings of tof Mo the the om ^ase pending before accused/respondent No.1 was seized from him yide Ex. P-6 and some other relevant documents including receipt fc»ook i were also seized. I Hands of accused/respondent No.1 were washed in the Sodium-Carbonate solution, which turned pink and the currency notes of Rs.275/- were also turned pink on dipping them into) the y & ^... v' I13S5.J ^ ® solution of Sodium-Carbonate. Thereafter, both the solutions were kept in two bottles and sealed. On pocket of the shirt worn by respondent No.1 being washed, the same also turned pink. This solution was also kept in a bottle and sealed. Thereafter, hands of accused/respondent No.2 were washed in the Sodium-Carbonate solution, which turned pink and the currency notes of Rs.50/-, seized from him, were also turned pink on dipping them into the solution of Sodium-Carbonate. Thereafter, both the solutions were kept in two bottles and sealed. The samples were sent for examination to the Forensic Science Laboratory, Sagar. After completing the trap- proceedings, Dehati Nalisi (Ex.P-11A) was recorded by the Inspector M.C.Sharma (PW-10). After completing the trap-proceedings and the investigation and after obtaining sanction for prosecution vide Ex.P-11 against the accused/respondents, a charge-sheet was filed. The report of Ex. P-14 received from the office of Director, Forensic Science Laboratory, Sagar, reported positive test of the bo;ttles containing hand-wash and cloth-wash of the respondents conta|ined in the sealed-bottles sent to the Forensic Science Laboratory, Sejgar. The learned 1st Additional Sessions Judge/Special Judge, Jagdalpur framed charges for the alleged commission of offence under Section 161 ofthe Indian Penal Code and Section 5(1 )(a) and (2), 5(1 )(b) and (2) and 5(1 )(d) and (2) of the Preventioi[i of Corruption Act, 1947 read with Section 34 ofthe Indian Penal Code against the accused/respondents. After appreciation of the evidence available on record, the learned trial Court has acquitted accused/respondents of the charges framed against them. the ,.^;^»^ ^ 6^ Against the judgment of acquittal, the State has preferred the instant appeal against the respondents. 3. Shri Satish Gupta, learned Govemment Advocate forl the State/appellant has argued that the prosecution has led clinching and reliable evidence in order to prove demand, acceptance|and recovery of bribe money. Learned Government Advocate | has further argued that the evidence of the complainant Dhondhu (pW- 2), Salim Siddiqui (PW-7) and Shankarlal Agrawal (PW-8) | are trustworthy. It has been proved that the respondents demar|ded illegal gratification for issuance of a Patta in favour of complainant. The complaint made by Dhondhu (PW-2) has the also been duly proved by the prosecution witnesses. It has also l^een argued that the proceedings of trap have been duly proved not by the complainant but also by other independent witnesses. has further argued that the case of the prosecution is corroborated by the phenolphthalein power test. But, the trial Qourt has disbelieved the above evidence and has erred in recording only He fully the finding of acquittal of the respondents. The judgment of acqdittal passed by the trial Couri: be set aside and the instant ap;peal preferred by the State be allowed. 4. Shri Janak Hidko, learned Advocate appearing on behalf of Shri R.S.Patel, learned counsel for the respondents, has supported the judgment of acquittal. He has argued that the prosecution has failed to prove by clinching evidence that any demand was mad|e by the respondents. He has further argued that the prosecutioni has failed to prove beyond reasonable doubt that any bribe was accepted by the respondents. Mere recovery of currency notes fr|om the possession of the respondents and presence of phenolphthal^in powder cannot be made basis for their conviction. None of the prosecution witnesses, particularly, shadow witnesses, who were brought by the trap-team did not support the prosecution case and there was no motive for the respondents to demand bribe from the complainant. The case of the prosecution suffers from serious contradictions so far as the demand, acceptance and recovery. Therefore, the finding given by the trial Court does not warrant any interference by this Court and the appeal preferred by the State is liable to be dismissed. ^- 5. Shri D.N.Billey (PW-9), who was Upper Division Clerk in the Law and Legislative Affairs Department, Government of Madhya Pradesh, Bhopal has proved grant of sanction for prosecution of the accused/respondents vide order dated 1-2-1993 (Ex.P-11) accorqled by the Additional Secretary, Law and Legislative Affairs Department, Government of Madhya Pradesh, Bhopal. The respondents did not dispute grant of sanction (Ex.P-11) for their prosecution. I 6. In order to prove its case of demand of illegal gratificati^n, acceptance and recovery of currency notes, the prosecution l^ias mainly relied upon the testimonies of Dhondhu (PW-2), Sa| Siddiqui (PW-7) and Shankarlal Agrawal (PW-8). After examin| the testimonies of these witnesses, the learned trial Court ^as disbelieved their testimonies and held that demand and acceptar^ce im ng ^ are not proved and acquitted the respondents of the charges framed against them. 7. In Subash Parbat Sonvane vs. State of Gujarat, 2002 Cri. L.J. 2787 (Supreme Court), the Hon'ble Supreme Court has hjeld that mere acceptance of money without there being any otjher evidence would not be sufficient for convicting the accused unjder Section 13(1)(d)(i) of the Prevention of Corruption Act, 1988. Sections 7 and 13(1)(a) and (b) of the said Act, the Legislature |ias specifically used the word 'accepts' or 'obtains'. As against t|iis, there is departure in the language used in Clause (1)(d) of Sec^ion 13 and it has omitted the word 'accepts' and has emphasized |the word 'obtains'. Further, the ingredient of sub-clause (i) is thalj by corrupt and illegal means, a public servant obtained any valu^ble thing or pecuniary advantage, under Clause (ii) he obtains s(Jch In thing by abusing his position as a public servant, he obtains for ^ny person any valuable thing or pecuniary advantage without any pq'blic interest. Therefore, for convicting the person under Section 13(1](d), there must be evidence on record that accused; obtained; for him|self or for any other person any valuable thing or pecuniary advant^ge by either corrupt or illegal means or by abusing his position ^s a public servant or he obtained for any person any valuable thin^ or pecuniary advantage without any public interest. 8. In M.0. Shamsuddin vs. State of Kerala, (1995) 3 SCC ^51, the Hon'ble Supreme Court has held that in trap cases, if any of|the witnesses are accomplices who are particeps criminis in respe^t of ^—..^ ^-.-^,-^^-^.'^.- ^-^/ (<^ 8 ® the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplice^ in that sense but are only partisan or interested witnesses who are concerned in the success ofthe trap, their evidence must be tested in the same way as other interested evidence is tested which may vary from case to case and the corroboration in the case of sijich interested witnesses can be in a general way and not as one required in material particulars as in the case of an approver....j In such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within he discretion of the Court depending upon the facts and circumstan^es of each case. However, as a rule of prudence, the Court ha^ scrutinize the evidence of such interested witnesses carefully. 9. The settled legal position which emerges is that the evideipce of the complainant has to be scrutinized carefully and if his e.videi{ice is found trustworthy, reliable and also finds corroboration on mat^rial aspects, the same can be acted upon. 10. The complainant Dhondhu (PW-2) has deposed that he ^ad not given any application at Jagdalpur where the Superintenden Police and others were met to him. There they had gone to Ta|isil Office, Bakawand. Officers had accompanied him. Having ente^red to of the Bakawand Tahsil Court, he had given currency notes kept in his pocket to accused/respondent No.1 in the Court itself. Thereafter, i the officers, who had accompanied him, hadcaught hold) of respondent No.1. He has stated that he did not know what paper- n<£<e c^ 9 work was done by the officers there. He has further stated that he had attended many other hearings in the Tahsil Court, Bakawand. Many persons used to sit in the verandah of the Court. He used| to talk with them. He was told by some people there that if he is rtot getting Patta, he should put some money on the table in the Court. Thereafter, he had arranged some money. After arrange of money, he had proceeded to put the money on the table of accused/respondent No.1. He has further stated that he had told one Shiv Pandey that if he will put money on the table of accused/respondent No.1, he will get the Patta. Shiv Pandey had told him that he will not have to put the money on the table of accused/respondent No.1. The complainant Dhondhu (PW-2) has further stated that when, after going to Bakawand, every work was completed, he was asked to put his thumb impression on some papers and prior to that he was not asked to put his thumb impression on any paper. He tjias further stated that he did not know what was recorded in that paper by.Shiv Kumar Pandey or the officers. He has stated that it is tfue that when the officers had caught hold of hands ] of accused/respondent No.1, he had told that respondent No.1 had Inot demanded any money, then one of the officers had caught his n^ck and taken him out of there. 11. From the evidence of the complainant Dhondhu (PW-2) appears that it was Shiv Kumar Pandey who got everything do]ne. From paragraph 2 of the statement of Shiv Kumar Pandey (PW-q), it is evident that he had applied for allotment of 5 acres of l^ind , it — 10 €^ <"." situated in Village Cholnar and that matter was heard and dismissed by the Court of respondent No.1. Shiv Kumar Pandey (PW-5) w^s also convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life in a criminal case. From these circumstances, it appears that on account of dismissal of the case of allotment of 5 acres of land to Shiv Kumar Pandey (PW-5) by respondent No.1, Shiv Kumar Pandey (PW-5) involved t^ie complainant Dhondhu (PW-2) in the instant case and implicated t^ie accused/respondents. 12. In Banarsi Dass vs. State of Haryana, (2010) 4 SCC 45|0, the Hon'ble Supreme Court has held as under: "25. Reliance on behalf of the appellant was placed upon the judgment of this Court in C.M. Gihsh Babu v. CBI, (2009) 3 SCC 779, where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under: (SCC pp. 784 & 785-86) "18. In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) 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 11 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. 20. A three-Judge Bench in M. Narsinga Rao v. State ofA.P., (2001) 1 SCC 691, while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p. 700, para 24)............." 13. Theratio of law, as aforestated, makes it clear 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 1 accused, in the absence of any reliable evidence to prove demand of bribe or to show that the accused voluntarily accepted the mon knowing it to be bribe. ^y 14. Salim Siddiqui (PW-7) has stated in his cross-examination that he does not know about what did the complainant and t(ie accused/respondents talk in the office and what proceedings to(3k place between them. He has further stated that when he enter^d the office of respondent No.1 he saw many files, papers apd currency notes lying on his table and some currency notes were al^o lying down the table. He has stated that he does not remember that m 12 any policeman, having caught hold of neck of the complainant, tiad dragged him out ofthe office of respondent No.1. 15. Shankarlal Agrawal (PW-8) has stated in his cross- examination that the complainant, after coming out of the office, had itched his head only, he had not spoken anything. Files were kept on the table. He has further stated that he does not remember tlhat the solution turned pink or light-pink after washing hands | of respondent No.1. 16. Vide seizure memo (Ex.P-8), seizure of receipt book, regisjter and order-sheet has been shown. In the seized order-sheet, therd is a mention that the complainant has to pay amount of premium grant of Patta for 5 acres' land. for 17. Since the complainant has not stated regarding demand|of money by the accused/respondents and from the seized docum^nt (order-sheet) it appears that the complainant had to pay amountj of premium against grant of Patta, therefore, the possibility of being ^he seized amount to be the amount of aforesaid premium cannot |be denied. 18. There is no conclusive evidence on record which may rev^al that the respondents demanded bribe from the complainant agaipst grant of Patta. The learned trial Court, after due appreciation evidence of the prosecution witnesses in its judgment fr^m paragraphs 21 to 28, has rightly come to the conclusion that accused/respondents did not make any demand of bribe. of he Gopal 13 C^) 19. In the final analysis, this Court finds that the judgment of acquittal passed by the learned 1 Additional Sessions Judge/Special Judge, Jagdalpur does not suffer from any infirmity. 20. Accordingly, the judgment under appeal is affirmed and the criminal appeal is dismissed. __ Sd/- R.S. Sharma Judge r