^- HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Rajeshwar Lal Jhanwar. J. Criminal Appeal No. 1835 of 97 State of Madhya Pradesh (now Chhattisgarh) versus Ramnaresh Tiwari JUDGMENT Post for pronouncement of Judgment ^ -03-2010 Sd/- R.L. Jhanwar Judge 3^ HIGH COURT OF CHHATTISGARH: BILASPUR SINGLE BENCH: HON»BLESHRI RAJESHWAR LAL JHANWAR. J. Appellant Applicant Respondents Criminal Appeal No. 1835/1997 The State of Madhya Pradesh through the Lokayukta, Bhopal (Now State of Chhattisgarh) Versus Ramnaresh Tiwari, S/o R.S. Tiwari, aged about 58 years, occupation : Sub-Inspector (Police) posted at Civil Lines, Kasarideeh, Durg (MP) APPLICATION U/S 378 (iiil OF THE CODE OF CRIMINAL PROCEDURE FOR GRANT OF LEAVE TO APPEAL U/S 378 (il CR.P.C. Present:- Shri M.P.S.Bhatia, Dy. Government Advocate for the State. Shri Amiyakant Tiwari, counsel for the respondents. JUDGMENT (Deliveredon ^/03/2010) This is State appeal directed against the judgment dated 17.01.1997 acquitting the respondent ofthe charges under Section 7 and 13(l)(d) of the Prevention of Cormption Act, 1988 (henceforth 'the Act) passed in Special Case No. 75/91 by the First Special Judge, Raipur. 2. Prosecution case in brief is that on 25.04.1986 the complainant Gulshan Saluja P.W.ll was the owner of Minibus bearing registration No. M.B.R. 37 and plying his bus daily on hire basis. Respondent / accused was at the time of incident was Town Inspector of Police Station Bemetara and put a demand before the complainant that he shall pay Rs.200/- monthly basis for plying his bus daily and on failure to pay, he would seize the said Minibus. On 22.04.1986 the respondent /accused seized the said Minibus of the complainant - Gulashan Saluja and after taking Rs.300/- released the said Minibus. The respondent / accused also told to Gulashan Saluja that if he wants to ply his bus, he shall have to pay him a sum of Rs.200/- every month as illegal •'.:''-^., gratification. As the complainant does not want to pay him illegal gratification of Rs.200/~, 'he lodged a complaint in the office of Lokaukt vide Ex.P.3. On his complaint, B.I.R. Naidu, Inspector was instructed to take necessary action against the respondent by the Superintendent of Police, Special Police Establish, Office of Lokayukt. Preliminary panchnama was prepared. Thereafter trap party was arranged and complainant gave currency notes in denomination of one Rs.100/- and two Rs.50/- and the number of currency notes were mentioned in the preliminary panchnama. Phenolphthalein powder was applied on those currency notes and necessary demonstration was made and then complainant was instructed not to touch the currency notes before giving them to accused/respondent and not to shake his hand with the respondent. After completing necessary formalities trap party started towards the police station where the accused/respondent was posted. After reaching the police station, the complainant gave those phenolphthalein powder quoted currency to respondent - Ramnaresh Tiwari and then he signalled the trap party and on receiving signal from the complainant, Mr. B.I.R.Naidu P.W.12 and G.S.Tripathi P.W.5 caught hold of the respondent red-handed and so many police personnel who were gathered there at that time asked them why the respondent/accused was caught and by asking like that they also tried their level best to save the respondent from the said authorities and in the meanwhile as the respondent cleverly succeeded in handing over those currency notes to some colleague, the said currency notes could not be seized from him. Thereafter, the hands and full pant of the respondent / accused were put in solution of chemically prepared water resulting in that became pink. Necessary chemical tests were done and necessary articles were seized and sealed and sent to F.S.L. for its chemical examination. Panchnama was prepared and after taking permission to prosecute the respondent / accused, charge sheet was filed before the First Additional Special Judge. ..-.^A^^, ^ ^^ .:1 A. .^^^'te l:.\'^ ^ -5 3. After receipt of case, the Special Judge framed charge under Sections 7 and 13 (l)(d) of the Act, which was read over and explained to the respondent/accused, who abjured the guilt and pleaded innocence and false implication. The respondent also took defence that he made a case against one Rajendra Saluja, brother- in-law of the complainant, therefore, the complainant falsely implicated him. 4. After affording an opportunity to the parties to lead their evidence and after hearing the learned counsel for respective parties, the learned Special Judge has acquitted the respondent of charge under Section 13(l)(d) of the Act after minutely scrutinizing the evidence available on record. 5. Learned counsel for the State/appellant argued that learned Special Judge erred to appreciate properly the evidence adduced on behalf of the prosecution and has acquitted the respondent despite there was ample evidence against him. He further argued that complainant Gulshan Saluja P.W. 11 has successfully led his evidence before Court about the incident and that was also supported by B.I.R.Naidu P.W.12, O.P.Singh P.W.10 and other relevant witnesses but in spite of that the learned Special Judge had wrongly dlsbelieved their evidence and acquitted the respondent. 6. On the other hand, learned counsel for the respondent argued in support ofthe impugned judgment. 7. I have heard learned counsel for the parties at length and perused the judgment .impugned including record of the trial Court. 8. After perusal of the record and evidence adduced on behalf of the prosecution, it is evident that the coniplainant P.W.ll Gulshan Saluja is a bus owner and plying his bus between Simga and Bemetara. Accused / respondent seized his bus and after taking a sum of Rs.300/- released his bus. It is also apparent that -^ ^a^ the complainant was informed by the respondent that he shall pay a sum of Rs.200/- every month as illegal gratification, and therefore, the complainant lodged the coinplaint at Vigilance Department vide Ex.P.3 against the respondent since the complainant does not want to fulfill the demand raised by the respondent. According to him, he furnished currency notes in denomination of one Rs.100/- and two Rs.50/-, total Rs.200/- to Lokayukt persons. Trap party was arranged and phenolphthalein powder was also applied on them and necessary demonstration was made before him. He was also instructed to give signal after handing over the illegal gratification and then he started Bemetara Police Station accompanied by trap party. He reached police station with his conductor. According to him, the respondent came out of police station and at that time the complainant gave currency notes of Rs.200/- to the respondent and after giving those currency notes he immediately signalled the trap party and the niembers of trap party immediately came there and caught hold of respondent red-handed and tried to search those currency notes being given by the complainant but could not succeed to get those currency notes recovered from he respondent. He has also deposed that some quarrel ensued between the respondent and one Raja at that time. In this manner, it is evident from his evidence that he gave Rs.200/- to respondent whereas in his whole statement he has not deposed that respondent demanded money froni him. He has also stated that he himself has given that money as soon as respondent came out of police station. Thus, it is not proved that the respondent demanded money. 9. P.W.12 B.I.R.Naidu, investigating officer, has deposed in his evidence about Ex.P.3, the complaint submitted by Gulshan Saluja and arrangement of trap party and for that necessary instructions were issued. He has also deposed that the complainant Gulshan Saluja gave him total a sum of Rs.200/- in denomination of one Rs.100/- and two Rs.50/- and phenolphthalein powder was applied over those currency notes. After issuing necessary ihstructions, they went to Bemetara along with trap party and after r, receipt of signal from the complainant they (members of trap party) immediately reached police station and when reached police station to trap the respondent, then some police officers who were present in police station prevented them to take legal action against respondent. He has also deposed that no currency notes were recovered from the respondent, therefore, they were notable to seize even single currency note. 10. O.P.Singh P.W.10 has deposed that the respondent was searched by them and has reiterated the same thing as deposed by B.I.R.Naidu P.W.12. He has further deposed that he did not see the complainant Gulshan Saluja to hand over the money to respondent. B.I,R.Naidu P.W.12 has also deposed that he did not see the complainant giving money to respondent. Inspector G.S.Tripathi P.W.5 has deposed that he witnessed the complainant giving money to respondent since he was present by the side of police station but he has not stated that respondent demanded money from the complainant. Constable John Verghese P.W.7 has also not seen the complainant giving money to respondent. The most important witness in this case was Feku Ram P.W.8, who was working as conductor in the complainant's bus, has deposed that he had also accompanied with Gulshan Saluja in Bemetara police station but he has not stated that respondent demanded money from the complainant. In his cross-examination, he has stated that the bus of the complainant was never seized by the respondent. Thus, this witness did not support the evidence of Gulshan Saluja, who has deposed that his bus was seized and Rs.300/- was paid to respondent and his bus was released by him. 11. In this view of the matter, it is clear from the above evidence of witnesses, no witness has even stated that respondent demanded money from the complainant Gulshan Saluja and complainant (Gulshan Saluja) has also stated that he himself paid money to respondent and he was standing by the side of the accused/respondent. He has deposed that after giving money to respondent, police personnel of Lokayukt immediately reached -^- there and could not recover those currency notes from the respondent. It is also pertinent to mention here that despite best efforts being made by the trap party, the money was not recovered. Even B.I.R.Naidu P.W.12 and other witnesses were also not in a position to depose that who took that money. It is also clear that no money was seized from the respondent. It is also evident from the evidence that respondent never demanded money as illegal gratification. 12. Having thus considered the evidence led by the prosecution in its entirety, I am of the view that the prosecution has not been able to prove the fact that respondent demanded money as illegal gratiflcation. A duty is cast on the prosecution to prove that illegal gratification was demanded by the respondent to complete the work of the complainant. In the matter of A. Subair v. State of Kerala, reported in 2009 AIR SCW 3994 wherein the Supreme Court has held that prosecution has to prove demand made by the accused. In the present case, the prosecution has utterly failed to lead evidence relating to demand of illegal gratification made by the respondent. Therefore, the learned lower Court has rightly disbelieved the statements of witnesses of prosecution and has rightly acquitted the respondent of the charge as above. The findings and conclusions recorded by the lower Court are purely based on legal, clinching and credible evidence. 13. In the facts and circumstances of the case and after considering the material available on record as well as the elaborate judgment impugned passed by the Court below, I am of the view that in an appeal against acquittal if two views on the prosecution evidence are possible and the trial Court has taken one view favourable to the accused persons, then it will not be permissible for the appellate Court to reverse the finding of acquittal by taking the other possible view on the prosecution evidence. Thus, the judgment of the trial Court is flawless and thus impeccable. - .,,^^^.:;: .^-'l"?:.. '^. •^'..::^^ " -^- 14. In the result, I do not find any such infirmity in the impugned judgment of acquittal which may warrant interference in this appeal against acquittal. Thus, the appeal filed by the appellant/State against the acquittal of respondent/accused person is liable to be and is accordingly dismissed. Sd/- R.L. Jhanwar Judge