» -1.- S,,t.F.ih.' B^I?E5i': IN THE HIGH COURT OF JUDICATURE AT BILASPUR: CHHATTISGARH l.C.R.C. N0. OF2od^> fqc4 o'l CRIMINAL APPEAL N0. OF 2006 APPLICANT APPELLANT State of Chhattisgarh Through the District Magistrate, Bilaspur (CG) fn lc' ^^iS^ ^sws^^^ Versus NON-APPLICANT Ramavtar Tiwari RESPONDENT S/o Late Balak Das Tiwari aged about 41 years, Sub-Engineer, Nagar Nigam Bilaspur (CG) APPLICATION FOR GRNT OF LEAVE TO APPEAL UNDER SECTION^ 378f3)-JND MEMORANDUM OF APPEAL UNDER SECTION 378(lTOF THE CODE OF CRIMINAL PREOCEDURE. 1973 ^lJ ^io' :ll eyaj 's.eaoi *2,f State of Chhattisga.rh RamavtarTlwari Shri Akhil Mishra, Dy. G.A. for the State/appeliar Shri Rakesh Pandey, Counsel for the respondent. CRIMZN, PROCEDURE. (05.04.20S1) lis appeaf is directed agajnst.the .11.2005 passed by :the Spe' Sessions Judge, Bilaspur,, in £ acquitting the accused/respor is 7 and 13 (1) (d) Prevention of Corruption Act. Additiona N0. 9/04 under S< First' uase •^. / 9:\" time the the of the prosecutlon in respondent accused was icipal Corporation, Bi Kumar Singh (PW-4) ap| of his mao for which h< is that at th&retevant ing as Sub Engineer in According to ths when the comptainant the respondent for d deposited reauisite free rer on 21.06.2002.. the resp him to his house, It ss alleaed that the complainant was not interested to aive him the bribe amount and thersfore on 09,10.2002 h.e made licatjon Ex.P-l to the office si•i ce (Lokayukta);. Bilaspur la. Inseaetsr. te ieok into ^~'\ ^ -2.- matter. On 09.10.2002 itselfv. K, Nagdeo (PW-l) and Jayant Pawar were called by the department. Writfcen complaint Ex.P- 1 was shown to them and then a trap party was constituted and preparation was made to compiete the formalities. Test was demonstrated by applying phenoiphthalein powder on three currency notes out of which one is 500 and two are 100 denominations and then the trap party went to the house of the respondent. Complainant Brajesh Kumar Singh and the non-examjned witness Jayant Pawar entered in the house Q" the respondent and after about 15 minutes they came out of the house and gave signa! to the trap party. Trap party' entered the house of the respondent a.nd seized the notes vide Ex, P-4 which was kept on the rriattress covered by paper. Phenolphthalein test of both the hands of the respondent was conducted which proved positive. Further investigation was taken up by R. K. Shukja (PW-6) and after examining the witnesses and obtaining sanction, the charge sheet was filed agai 04.10.2004. 3. So as to hotci the accused/re has examined 09 witnesses in 313 of the Code of charge levelled ag< false implication in Nirmal Agrawal (DW- Vidyacharan (DW-4) have atso been examined by of its case. the case. This •l), Ravindra guilty, prosecution its case. Statement recorded under section in wnich he denied the eaded his innocence and t, four witness nameiy Rameshwar Sharma the defence In support 4. After hearing the parties the the accused/respondent on the following grounds ;?s%, .;i?''""<t^§ '"^;, •i?i^"^>l 5S ^ -•3- 5 that the shadow witness Jayant Pawar has not been examined, i) that the acceptance of bribe amount has not been iiH was a government that the compiainant Bratesh Kumar Si habit of making comptaint- agatnst employees, that the complainant has a criminal back v) as per the transcript Ex. P-lO, the acceptance df money has not been proved. 5. Contention of the learned counsel for the appeltant is that the prosecution has though proved the acceptance and demand in a very categorical term but yet ignoring the material evidence available on record the Court below has erred in iaw in acquitting the respondent. Me further submits that the FSL report Ex.P-29 proved positive and the motive has also been established because the fi!e for renewal of sanction of map was pending with the respondent. 6, On the oth.er hand supporting the impugned judgment it has been argued by Shri Pandey, learned counsel for the respondent that by a well reasoned judgment the respondent has been acquitted and no ground whatsoever has been raised by the State counsel on the> basis of which the 7, Heard available on Complainant ing hls attegation demanded Rs.700 I for the partles and pemsed the material including the judgment impugned. Kumar Singh (PW-4) while ss stated that as the respondent renewa! of the map, he made a and after completion or all the the psljce went ts the house ef the ^^^OTi'^ffii^.^ f"^%'& y^:^. lt; ..""<8si i ^ '9 y ^~;'?--. ~i-'t? -4- respondent for raid, In paragraph-9 he has stated that when he entered the room of the respondent; one person who was not known to him waS sifctlng there with whom the respondent was discussing about some map. He sat in the room of the respondent for about half an hour and when fte informed the respondent about the amount which was demanded by h'm,. the respondent asked hlm by gestures to keep the same on the bed covering with paper. Though he was keen to give the said amount on the hand of.the respondent he kept the same on hls bed. After coming out from the room he gave a sfgnal to the trap party, The trap party reached there and on being asked by Shukla he informed them where the bribe amount was kept by him. Phenolphthalein test of his both hands and that of the respondent was conducted which proved positive. There appears some contradictfons in paragraph-14 of the statement of this witness from that of his case dian/ statement. In paragraph -19 he has further admittsd the fact that at the relevant time one Nirmal Agrawal (DW-l) wras sitting along with the responctent. v. K. Nagdeo (PW-l), the Punch wltness in paragraph-4 of his evidence has stated that after entering the room of the respondent when R, K. Shukla (PW-6) asked the respondent as to wnere the bribe money was kept, he showed his ignorance. Tnereafter e complainant informed that the money has been kept on the bed after covering wrth paper and then the sald bribe amount was recovered from the bed of the respondent, This wltness has also stated that when the hands of the respondent and the complainant were washed ;n the sodium carbonate solution, the colour of the solution got changed. In paragraph-9 he has further sdmitted the fact ttiat when Inspector Shukla (PW-6) asked the respondent about ttie bribe amount, the respondent repiied that he is not aware about any such amount. There appears to be materiaj contradictions and omissiBns in the statement ef this witness r &..- ••i' '!.S;S» M.f ^ too. In paragraph-12 he has stated that the bribe amount of Rs. 700 was not settled before him nor he had seen the complainant giving bribe to the respondent, Me has further stated that he has not heard the respondent asking the compiainant to keep the bribe amount on the bed. Dhani Ram (PW-2), the Head Constable had done the formalities for preparing chemical solution, Sitaram Sharma (PW-4) has exhibited the documents of the Municipal Corporation vide Exs. P-7 & P-13. In paragraph-4 of his evidence this witness has categorically stated that before incident, the complainant had come to the office of ttie Munlcipa! Corporation and was hurling abuses to the commissloner a.nd the respondent and also threatened the respondent, Smt, Anita Masih (PW-5) who was the employee of the corporatton has stated that the respondent was not competent to grant sanction for construction of house. R. K, Shukia (PW-6), the investigatlng officer has supported the prosecution case. Santosh Kumar Verm (PW-7) is the Patwari who had prepared the spot map Ex.P-12. Ran Bahadur (PW-8) is a witness to tne sanction of prosecution Ex. P-33A & P-338. Ramdulari (PW-9), the mother of the complainant has not stated anything specjflc against the respondent. The important witness Jayant Pawar who had accompanied the compiainant to the house of the respondent has not been examined by the prosecution. 9. The defence witness Nirmal Agrawat (DW-1) In hjs Court statement has stated that at the time of incident ne was sjtting along with the respondent in his house and discusslng about a map. Me has stated that no bribe amount was given by the complainant and all of a sudden the trap party entered his houseand allegations were leveled against him. Ravindra @ Ravi Chaturvedy (DW-2), Vidyacharan Chaturvedy (DW-3) and Rameshwa.r Sharma (DW-4) have ajso suDported the cgse of the resoondent; After elue aBDreeiation. the court below ^ -& has arrived to a particular conciusion of acqultting the accused/respondent. (^ I find no reason to interfere with ths judgment of the court betow and the same has been passed in accordance wlth law, Thus; after going through the material available on record and being very much consclous of the existing legat posltion that in an appeal against acquittal if two views are possible on the basis of evidence led by the prosecution and the trial Court taking one view favoured the respondent, this Court is of the considered oplnion that reversion of the findings of acquittal by the appeltate Court taking the other possible view into consideration, Is not permtssible in iaw and therefore the judgment impugned acqutttlng the accused/respondent of the offence under Ssctions 7 and 13 (1) (d) read with sectlon 13 (2) of the Prevention of Corruption Act, is just and proper and does not warrant any interference by this Court. Accordingly,. the appeal belng without substance is tiable to be dismissed. It is accordingly dlsmissed. Sd/- Pritinker Diwaker Judge