Anardevi Tiwari vs State Of Madhya Pradesh

Present appeal is preferred against the impugned judgment of conviction and order of sentence dated 30.09.1999 passed by the learned Special Judge, Raipur (C.G.) in Special Case No. 5/1992 whereby, the trial court has convicted and sentenced the appellant as under:-

Conviction

Sentence

Under Section 161 of IPC & Section 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947

R.I. for 1 year on each count and to pay fine of Rs. 1000/- - 1000/-, in default of payment of fine amount further imprisonment of S.I. for 3-3 months

As per case of the prosecution, the appellant was posted as Head-master of the Government Higher Secondary School, village Kharoha Shivrinarayan, District Bilaspur (C.G.). While working as a public servant on the post of Principal of Government School, on 23.08.1988, during discharge of the official duty as a public servant, appellant demanded amount of Rs.500/- other than the valid remuneration for giving mark-sheet to complainant- Chandrashekhar (P.W.-1) and received a bribe of Rs 500/-. It is also alleged that while serving as a public servant, the amount other than the lawful remuneration Rs.500/- was illegally received from complainant-Chandrashekhar (P.W.-1) in the form of bribe by misusing his official position. Complainant approached Lokayukta and submitted a complaint (Ex.P-1) to arrange a trap for the appellant. Rs. 50/- was taken from the complainant and treated with phenolphthalein powder and handed over to the complainant with necessary directions. Preliminary panchnama (Ex.P/2) was prepared. Complainant gave currency of Rs. 50/- to the appellant who kept the same in his table. On the appointed sign being given by the complainant Chandrashekhar (P.W.-1), the members of the trap team reached there, the hands of the accused/appellant were dipped in the solution of Sodium Bi-Carbonate, the solution turned pink & Rs.50/- was recovered from the possession of the appellant. Spot-map (Ex.P/10) was drawn. Packets containing phenolphthalein solutions turned pink, they were sent to FSL. FIR (Ex.P/16) was registered and charge-sheet was filed against him before Special Judge and charges were framed under Sections 161 of IPC & Section 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947.

So as to hold the accused/appellant guilty, the prosecution has examined as many as 12 witnesses. Appellant has examined 3 witnesses in his defence and statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges levelled against him and pleaded innocence and false implication in the case.

On the basis of oral and documentary evidence, trial court has convicted the appellant for the offence punishable under Sections 161 of IPC & Section 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947, and sentenced him as mentioned in para 1. Hence, this appeal filed by the appellant.

Learned counsel for the appellant submits that the impugned judgment is illegal, erroneous and bad in law as well as on facts and so- called recovery of the tainted currency note which was not made from the appellant but from the office table. The witness to the Incident Jan Mohammad (chaprasi) was examined and he has not supported the prosecution case but the prosecution has not declared hostile though there is no proof of demand of bribe. Chandra Shekhar (P.W.-1) has stated that he had not given any bribe and it was donation of Rs.50/- that he gave to the appellant in the trap witness not corroborated to each other and there were discrepancies in material aspects of the case. The place and the manner in which the alleged bribe was offered & received, seems to be totally against the ordinary human conduct. Appellant has examined 3 witnesses in his defence and they have supported the defence that Rs.50/- was deposited with him as donation to the 'Shala Vikas Samiti'. Prosecution has totally failed to prove its case beyond reasonable doubt, therefore, conviction of impugned judgment and oder of sentence is liable to be set aside.

Learned State counsel has supported the impugned judgment of conviction and order of sentence passed by the learned trial Court and has placed reliance in the matter of Johan Singh Vs. State of M.P. (Now C.G.) in 2015(5) C.G.L.J. 395.

Heard counsel for the parties and perused the material available on record.

It is not disputed that at the relevant time, appellant was posted as Principal and he admitted this fact that at the relevant time, he was Principal of Higher Secondary School. It is also not disputed that complainant Chandra Shekhar Kesharwani (P.W.-1) has passed 8th class from that school.

Complainant Chandra Shekhar Kesharwani (P.W.-1) has stated that when he went to take his mark-sheet then appellant demanded Rs.50/- but he has admitted in para 8 of his examination-in-chief that,

Trap witness Harshlal Shukla (P.W.-4) has stated in paras 10 & 11 of his examination-in-chief that,

R.J. Toppo (P.W.-10) has also admitted in para 9 of his examination-in-chief that,

Other trap witness namely S.K. Verma (P.W.-2) has stated in paras 9 & 10 of his examination-in-chief that,

In this case, except complainant-Chandra Shekhar Kesharwani (PW-1), there is no other witness to demand of bribe money. Trap witnesses recovered the note from the table of the appellant but they have also stated that they did not see the appellant receiving the note.

Defence of the appellant is that the money was donation money. Subodh Kumar Shukla (P.W.-5) has also stated in para 1 of examination-in-chief that,

Defence witness K.H. Gupta (D.W.-1) has also supported the defence of the appellant and stated in para 3 of his examination-in-chief that

Chitranjan Prasad Tiwari (D.W.-3) has also stated in para 1 of his examination-in-chief that,

In the matter of C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala [(2009)3 SCC 779], in which Hon'ble Supreme Court in paras 21 & 22 held as under:-

“21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.

It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.

“4...... It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.” (emphasis supplied) (See V.D. Jhingan Vs. State of U.P. AIR 1966 SC 1762 at p. 1764, para 4.)”

Hon'ble Supreme Court has held in the matter of Banshi Lal Yadav Vs. State of Bihar passed in AIR 1981 SC 1235 that the alleged recovery of currency notes by itself will not be sufficient to raise presumption against the appellant particularly, where the prosecution has failed to prove that the appellant had demanded money to return his documents.

In this case also except complainant, no other witness has stated about the demand of the money and defence taken by the appellant has been constant from the very beginning that money was for donation of Shala Vikash Samiti and complainant Chandra Shekhar Kesharwani (P.W.-1) has also stated in para 8 that donation money was demanded by him.

All the above evidence shows that tainted money was recovered from the table of the appellant and defence witnesses D.W.-1 and other witness of school have supported the defence of the appellant. It is also well established principle of criminal justice that the accused is not bound to prove his defence beyond reasonable doubt, therefore from evidence on record, it is not proved beyond reasonable doubt that appellant had demanded and took Rs.50/- as a bribe.

Looking to the above evidence, the prosecution has failed to prove its case beyond reasonable and the finding recording by the trial court is not sustainable. Appeal is allowed & the impugned judgment and conviction of order and sentence dated 30.09.1999 is set aside. Appellant is acquitted of the charges levelled against him. Fine amount deposited by the appellant, be returned to his legal representatives.