HIGH COURT OF CHHATTISGARH. BILAPLLR riminal Aggeal No.669 of 1991 Shoukat Ali Versus APPELLANT.- RESPONDENT: The State of MP. (now State of C.G.) A E 0 ost for pronouncement of iudament on Z August. 201 r1x x sw— T.P. Sharma ude @ S C N xxx ‘ \L, lgg IGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No 669 of 1991 Shoukat All son of Mohammad AII aged' w,‘ about 40 years Inspector of Post Offces (under suspenSIon) Jaspur Nagar Dlstt Raigarh, at present resident of Lucky Road, Bilaspur, M.P. (now C.G.) Versus RESPONDENT: The State of M.P. (now the State of C.G.) {Appeal under Section 374 of the Code of Criminal Procedure, 1973} Present Mr Sandeep Shnvastava counsel forthe appellant Mr Rakesh Kumar Jha Deputy Govt Advocate for the State/ w. sponden Single Bench: Hon’ble Mr. T.P. Sharma‘ J JUDGMENT (Delivered on L August, 201 0) 1. Challenge in this apeal is to the udgment of conviction & order of sentnce ded 17-991 pass y‘ the Scia Jde, ur i e at 1-1 ed b pel ug Jabalp n Spcial Ce o3 wereb & eeu arn Spil Judge e as N.2/8, hy whrnder leed eca afte og e lln gilt f mso of ene der r hldin th appeat uy or comisin offc un Sections 5 d) read wrth etio 5 () f e reveti of Corrtion (1) ( Scn 2 o th Pnon up Ac f ort ‘the c an 1 o he I seece t unergo I for ee a of R 1 0/ defu payent of t furthr nr R t ths bh cnts V m fne o e udego l for wo mon on ot ou Con puge h und h a ha h pllant h te lleal n other thn legal rmraon the t Cot as vt & senced e a euneti, rial ur h coniced ten th pellant an heby commtted leglity. ap d tre i ila C e prosei e is at e apelant worki as Ior st Offce at aspur om 1981 ti his uspesm n nspect of Po s Jh fr ll snn ad coplainant Seshchndra Baga PW 4) w wking s h Pot Maste ro 9 tt 180 In h ea 9 the copainnt ws lect a Spa nd h ntini th f rh o eed s arnch a e was coung e work o Banc Pst Master 7—82 te ppt et t painant a B Stand Paalgaon a od htm tat he canot cotie o wo Branch P Mat ring his tenue of Sarnh if e ays hi Rs 1 000/ ost ser du r pac but h p m s m ura ht ( as or a Branc s r fm 173 ll 9 te yr 180 mla a On 1- h aellan m he coml t us ttl nd tl h n nnu n the rk of ‘ H APPELLANT: ret p j t 1947 (or sh At) d 61 f t P c ntnd ntm o d R thr yers & pay fine s 00— tn alt of . nvrctto ts Imnd on te gro that Witout ny Iota of evrdence tt te ape as demanded & accepd Ig. gratificatio . ase of th cuton in brif th th pl was ng The complainant went to Jashpur‘ and made complaint to Additional Coliector, Jashpurnagar, the administrative head of the then Jashpur Tahsil vide Ex.P-7.- On second day he met the Collector. MeanWhiie he received a Ietter (Ex.P-6) from the appeiiant which was kept in envelope Ex.P-8. On 17-7-82 the complainant was called ‘by the Additional Collectors The complainant went to'the appellant and requested that he has arranged Rs.500/— and he will give the same on second ‘day. The matter was/up i referred to Vigilance Department. On 18-7-82 the' complainant again made complaintjvide Ex.P-10. Preliminary panchnama Ex.P-11 was r prepared; and trap party was constituted. Reaction of phenolphthalein powder and sodium carbonate solution were demonstratedj The complainant produced five currency notes of Rs.100/- each. Numbers of he currency notes were recorded in the preliminary panchnama, same ere tainted with the phenolphthalein powder and kept in the pocket of the complainant. The complainant was directed to give money to the appellant on demand and after giving money to make signal. Trap party proceeded for the spot Complainant Sureshchandra Bhag'at (PW 4) " k!“ ent to resrdence-cum offce of the appellant One Dewangan Clerk was lso present there The appellant demanded money on which the omplainant gave Rs.500/-. kept in his pocket by trap party; to the appellant which the appellant took in his hand and kept in the drawer of his table. The complainant gave signal on which trap party came inside the room and after introducing themselves caught hold of the hands of the appellant. Post trap proceedings were conducted. Hands of the appellant were washed with sodium carbonate solution which turned into pick colour Currency notes were recovered from drawer of table of the appellant and numbers were tallied Currency notes were seized from the accused Vlde Ex P-14 Final panchnama was prepared Vlde Ex P- 13 Dehatl naISI was recorded Vlde Ex P 16 The case was finally handed over to the CBI and the CBI reglstered F l R Vlde Ex P-18 Other documents were seized Vlde Ex.P 19. Statements of the witnesses were recorded under Section 161 of the Cr.P.C.. Other papers Were seized and spot map was prepared. ‘ Docu‘ments collected during investigation were sent for according sanction and sanction was accorded by the competent authority vrde Ex P~12 Charge sheet was ‘\ fled-before the Court of Specral Judge for CBI cases Jabalpu » s a , ir- he will' make arrangement for his work on both the- posts. / i C ‘\_ \ / / I t w w 'a c r 2mg.u “o I rr to rov h ui o t aellan e pecutin a exaid 4. n ode pe te glt f he ppt th roso hs mne as many as twelve witnesses he accused was examined under q Section 313 of the Cr.P.C In which he denied the Circumstances appearing against him, pleaded Innocence and false Impiication. . The accused/appeiiant has taken specitic defence that the compiainant was not competent to work on two posts i.e. Branch Post Master & ' Sarpanch therefore he was required to resign from one post 'Ex P—6 has been Issued by him to the compiainant for resngning from the post of Branch Post Master but Instead of resigning the same the compiainant has falseiy impiicated him, he has not demanded or received bribe and V money wasthrusted in his drawer without his information which was recovered by the traps party. The appellant has also adduced the"“"" vidence of defence witnesses A.B; Goswami (DW—1) & Uday Kumar Shrivastava (DW 2) who have proved the official circulars and' procedure Uday Kumar Shrivastava (DW 2) has deposed that at the time of such trap the complainant came in the room of the appellant but I he did not discuss about any transaction or money, thereafter trap party came .and enquired the matter to whom the complainant told that money has been kept in the drawer ln his cross examination he has speCifically admitted that he has not seen the appellant keeping money in the drawer and he cannot say as to how money came in the drawer of the appellant. V q V fter affording oppOrtunity of hearing to the parties, learned Special Judge convicted & sentenced the appellant in the aforesaid manner. a . l have heard learned counsel for the parties, perused the judgment and record of the trial Court. ' Learned counsel for the appellant vehemently argued that in the present case, the prose'Cution has not proved demand & acceptance of illegal gratification, even the prosecution has not recovered money from the possession ofrthe appellant and money was recovered ‘from drawer of the accused The accused/appellant has not kept money in the drawer he complainant was not competent to work on two posts of Branch Post aster & Sarpanch Simultaneously, and therefore, he was required to esign. from one post. The appellant has issued Ex.P-6 for such resignation, but instead Of resigning from the post of Branch Post Master the complainant has falsely implicated the appellant. Learned counsel further argued that there is material contradiction in the evidence of the T e . A . T M r ant n oter Wies. I cas of briry uc rv .. io ofenc raing' bl er it is requi t e ove n an riabie vi n t prese cse, precn s e fai ro te ssential ingredits of t oe. Th prosecti has a l rov vid sanctn o precutio o t c wh nn n f a an a cu ls age tha t euty Suete o P a no competent to veat e fence eln fF Cenal Govrnment ad sen Fl.R is o dmissibe in eVIdnc l the prent ase' Es-7 & P0 e F Learnd conse plced rn i h matr T. Antony v. S o Kela in whh the Apex Curt. ha held that eare or t fi inmatiO redi complain ad h tness n e be to pbli seant ie henus fe eltto puic svant red o b prd by coget d el edence, but i he nt a the osutio ha uttrly led to pve h e en he ffnce e uon lso faied to pe al io f osn f he acused hic Is sine qua o for Initiatio o tking cognizce Lerned onsel ao rud t he Dp prinndent f oltce ws t instige th of ratig to oCIals of tr e n cod .. nt al ee. n y es c x.P ‘-1 ar .l.Rv.s. e ul a eliace n te te of‘.T tate f ra1 ic o s lir he rst forn garng mision of aable oence te s FR. st coms cgniz ff is rated a .l., ubsequen report egg me ffen cnnot b te second FR. nd s rardin sa oce a e rated as .l. a n fres vestigi ermiss, oweve the iesigatin le one o mor ts und econ 3 of th CP. a rgistonf seond F l R o pemisse une e w d counseuther o h inaton is pible hr, nvto can ti r e repor er Sti 17 e r..C nd eratio , . iw ti“ c is nt ribl dr th la Learne l‘fr c rence te matter f Rs Ba ak & tae f ahastr w ex Cou hs hat cod e ques n eble L osl als eliance te ate f a Karnaaa'. me n n h he pex Cour s sction grant s on e b lter of Pice Lkayh is ot va ancton and sog thort is d to cner he cas sanon by appg ind aed col relid upo e of ib . The ate Bia hh the Cor s el ta ob‘t an us f ft nfomat " reprt is o set rim i io. t c s nly a vi at r e ppo cplate econ 5 o etio ,5 f t ie t or corroratn r ntradicg and ot nesses. arn e urer ie t matte o ha . e of Gujara5 hc e pe ourt s h h i inrtio ee riti ae ma telphone cl i admissibe i ede rned counsl e a plaed lia in h o ameh aburo Devsar Ors v St o Mraha in hich the Ap rt a held t sen F.l.R. on th ba3is of int is ot rlia. earned cune o - placed r in h mtr o Stte of tkv Aer Ja3 i wich t A t ha held that an ed olely th asis of et IG ol oukta n lid si anctinin auiy , require osid t e of cti lyin m. Lern unse e n th matter Has v St of hr" in wic Apex ut ha hd ht jec d e o irs irionw o t the Cinal law n motn l an be ued oas preous stement fo th urse ontemd under Sti 17 r Scn 14 o he Evdenc Act, tha is f boig o cotin its maker not ofher wit Leed counsl fth reld upon he r f Soma Bi v Stat t in wih th Ax C ha eld tat frst foman rducd to wng ftr king e al s l n vince. Lea e'also relid 1 2001 Cr L R (SC) 633 2 2008 Cr L J 372 3 2007 Cr L R (SC) 880 4 1972 CnLJ 233 - 5 1975 Cn.L.J. 1201 iti ir , 2.x ,.u Upon the matter of Sone Lal and others V.~The State of Uttar Pradesh6“ t, a. . in which the Apex Court has held that delay in Iodging F.l.R. should be explained properly. . On the other hand, learned State counsel vehemently oppoSed the appeal and submitted that in the present case, the prosecution ha proved its case beyond all reasonable doubts. The appellant has demanded“& accepted illegal gratification other th'an legal remUneration by abusing'his post. Therefore, the trial Court has rightly convicted & sentenced the appellant. 10. ln order to appreciate the arguments advanced on behalf of the parties,“l,w t»- have examined the evidence adduced on behalf of the parties. 11.l the prsent cas, as regar vality of sanCtio, . Mathur (PW-) ed so de 1 ecil th e areful inio r he I nd the documn fter ide th ca f or'o sanin, he h a stion. I l his ss-exiion te tat etione n n croamnat he has admitd h he has not mnd i h ion or t rt & documes wer led bef h t te sanct der hat repo nt e pac ore im a t m f accoin tn. He s secilly ee th the I he tie o rdg sancio ha pfica dnid at CB haspridd m a acg stion. T ntion er Ex.2 clarly rveals t aft refu exang t teria, h has accoded san he rde so nsi br fsrof h offe whh o ha ater csering te mia placd efe m, sanni thority hs aor n vde xP-12. s held b th Aex u in h mate of Stte f Kka (supr), sancO acded wot apicon of mind on'e f ter of G s no vi tio, nt cse, h sancti utrity ha n acode sncn on the ba f tr, t n he bas of aterial pl ee h, n fter rl examti t saioni auh hs ae actio after aplication o mi an w'w" "" bas ateri paced. e i. ,12.As regards the question of second F.l.R., learned counsel for the appellant submitted that Exs.P-7 & P-10 are two different F.l.R.s.. Ex.P- 7 is a complaint, made to the Additional Collector and Ex.P-10 is also a l second complaint made to the Additional Collector. Both the complaints have not been made to the police officer or‘to the Police Station fer 6 1978 Cri.L.J. 1122 5 oVe hi proform for cordin anc he sac ord . r x, P—1 e e hat er cally mini he mal e r ction. T or al costs ief act te nce ic shws tt f onid h aterl e bor hi the ctiong au a ccded saction i E. A y e p Cort te tr a o arnata a tin cor ithu plati th basis o let l wa t ald sancn but in the prese a te oning aho s ot crd atio sis o lete bu o' t si m aced bfor im ad a caefu inaon he nctng tority a ccordd snn p f nd d on the is of mal l befor hm s s n e e ds id n YD. 8 who accord anctin vi Ex.P-2 has spficaly deposed at aftr c examatn of eport of t CB a ets, and a consring e se or accdf cto as ccorded anc . ‘setting. the Iaw in motion. ‘On the basis of Ex.P—10 the Additional Collector had directed the Vigilance Department for conducting trap and finally trap was conducted. Onthe basis of Ex.P-10, dehati nalsi EXP-16 was recorded. In the present case, the prosecution has not lodged two F.l.R.s, but the prosecution has registered only one F.l.R. Ex.P—16. In t d specifically admitted that money was found in the drawer of his table where he was sitting. Uday Kumar Shrivastava (DW-2) has specifically dmitted in his cross-examination that he has not seen’ whether the complainant has kept or thrusted money in the drawer or not; even he has deposed that he did not know howmoney came in the drawer of the ppellant. Uday Kumar Shrivastava (DW—2) was working under the appellant and was sitting with the appellant at the time of conduction of rap In these Circumstances the prosecution Is required to prove the fact that the accused has demanded and accepted money of Rs 500/- and he has kept money In the drawer 13. In order to prove the aforesaid ingredients of the offence, the prosecution has examined complainant Sureshchandra Bhagat (PW-4) whovhas V categorically deposed that the accused has demanded money, he made complaints to different authorities, trap was conducted, he .Went to residence-cumaofhce of the appellant where the appellant was present, the appellant again demanded money on which he paid five tainted currency notes of 'Rs.100/-'each to the appellant which the appellant took in hishand and kept in the drawer of his table. He gave signal on’whichv‘ " "" trap party‘came. As per his evidence, his hands were washed with the sodium Carbonate solution same turned into pink colour, thereafter hands ofthe appellant were also washed by the solution which also turned into pink colour and five currency notes of Rs.100l- denomination were recovered from drawer of the appellant which were also washed with the sodium carbonate solution and. the said solution also turned‘ into pink colour. 14.D.R. Ogre (PW—5), the then Additional Collectorghas corroborated first part of trap proceedings. Chaman Ohdar (PW-6) — shadow witness has, v. it, deposed in his evidence that after preliminary panchnama, he went‘with ‘ the‘.complainant to the oftice of the appellant, the appellant demande money from the complainant which the complainant gave, the appellant he present case, the appellant has admitte'd that money was foundin his“ '~ "w‘ rawer. By examining Uday Kumar Shrivastava (DW-2) the‘accused has m. / ‘ \ \ \ 2 d a a t .i too money n his hand and kept the same in drawer of his table. Thereafter, trap party reached into the room; 15.The prosecution has also examined S.S. Gour (PW-10) who‘has conducted trap. He has' deposed in detail relating to conduction of trap. ' He .has also deposed that after entering in the room of the appellant and after giving introduction Head Constable Brijbihari Mishra caught hold of the hands of the appellant and washed the same with sOdium carbonate solution which turned to pink colour. ‘As he directed the'appellant to produce the currency notes which the appellant was keeping 'in drawer, the appellant produced the currency notes after taking out the same from drawer numbers of the currency notes were tallied and were washed in the sodium carbonate solution which turned to pink clour 16.D.N. Agrawat (PW-12) has also substantially corroborated the trap proceedings, washing of hands of the appellants, change of colour of solution to pink and recovery of currency notes from draWer ofthe ‘ appellant. 17.Defence has cross-examined Sureshchandra Bhagat (PW—4) in detail and In his detailed cross examination this Witness has speCIfcaIIy deposed that the appellant has demanded & accepted Rs 500l— as bribe and has kept the same in the drawer of his table. He has denied the suggestion that he has created political pressure upon the appellant and, V has falsely implicated him '18 Defence has also cross-examined Chaman Ohdar (PW 6) — shadow Witness who has specnfcally deposed that the appellant has received Rs.500/- and ha'skept thesame in the drawer of his table. Defence has also cross-examined this witness but it has not been able-to elicit anything in. his cross—examination to show that the appellant has not receiVed aforesaid money and has not kept the same in his drawer. 19.Evidence of the aforesaid two witnesses clearly reveals that at the time I of trap, the complainant gave Rs.500/— to the appellant, the appellant has taken me currency notes of Rs.500/- from the complainant, in his hand and has‘kept the same in his drawer which were ultimatEly recovered by the trap party. This is not the. case in which the complainant has produced money before the, appellant towards payment of any tax or for ‘ other dues. Even defence witness=Uday Kumar Shrivastava (DW-2) who was sitting in the room has‘not said anything to show that the \V‘ 1‘ 1‘ ill i‘ ‘r" k i I omplainant has ruste money in the drawer of table o the appellant. The appellant was sitting towards the drawer side and even otherwise, here was no opportunity to the complainant for thrusting such money in the drawer without knowledge of the appellant. 20.Evidence adduced on behalf of the prosecution is sufficient to prove that hands of the appellant were washed in sodium carbonate solution Which ,V , turned to pink colour The prosecution has also produced the chemical examination report ExP 22 which shows presence of phenolphthalein 7 powder and sodium carbonate chemical In the hand wash solution of the appellant.’ If currency» notes were not in contact with .the appellant’s hand, then presence of both the chemicals was not possible in the hand wash solution of the appellant. It further supports & corrOborates the case of the prosecution. 21 Defnitely, evidence adduced on behalf of the parties clearly reveals that the complainant was holding two posts As per rule he was not competent to hold two posts, but he was eager and Interested to hold two posts by hook and crook. Therefore. he tried to manipulate and tried to retain both the posts by using unfair means. For securing and retaining the post of Branch Post Master the complainant contacted the . appellant and was ready to give bribe which the appellant accepted to receive Trap was conducted The appellant demanded & accepted bribe which was recovered from the appellant. 22.ln the present case, conduct of the appellant is questionable, not conduct of the complainant. Evidence adduced on behalf of the prosecution is suffcient ‘for drawing inference that the appellant has demanded and"""" '“ accepted Rs 500l- as illegal gratifcation other than legal remuneration by abusmg his post which is punishable under Section 161 of the l P C and Section 5 (1) (d) read With Section 5 (2) of thevAct. 23.After appreciating the evidence available on record, learned Special . Judge has convicted & sentenced the appellant in the aforesaid manner. Conviction of the appellant is based on credible, clinching and legal evidence sustainable under the law. 24 As held by the Apex Court in the matter of Sone Lal (supra) in the , present case FIR has not been lodged after conSiderable time therefore, the case of Sone Lal. (supra) is distinguishable on facts to that of the present case. .i. ,r .r c thd f t t 5.ln the present case, no second F.I.R. has been Iodged, as such, theww y case of Ramesh Baburao (supra) relied upon by Iearned counsel for the appellant, is also distinguishable on facts to that of the present case. 26.As regards the question of sentence, considering the entire scenarioand the fact that the appellant is facing prosecution since 1983, sentences imposed upon the appellant require re-consideration. ’ 27.Consequently, the appeal is partly allowed. Conviction of the appellant under Sections 5 (1) (d) read with Section 5(2) of the Act & 161 of the l.P.C. are hereby-maintained. Instead of sentence of R.l. for two years & fine of Rs.1,000/—