Mohan Chandnani vs State of Rajasthan

Farooq Hasan, J.—This criminal appeal is directed against the judgment dated April 18, 1978 passed by the Special Judge (ACD) Rajasthan Jaipur whereby the appellant Mohan Chandnani had been convicted and sentenced as under:

Under Section 161, IPC Section -- to undergo simple imprison 5(1)(d)(2) of the Prey -- ment for one year for both Intion of Corruption -- counts and to pay a fine of Act, 1947 -- Rs. 200/- on each count in default one month''s S.I.

Both the sentences were ordered to run concurrently.

Brief facts giving rise to this appeal are thus: On May 30, 1975, Panne Singh, the complainant lodged a report before the Deputy Superintendent of Police, (Anti-corruption Department), Ajmer, stating therein that he was having an electric connection at his well, electricity consumption charges demanded vide bills issued by the Rajasthan State Electricity Board were to be paid through the Urban Co-operative Bank Limited, Kishangarh, Ajmer; the bills were to be issued by the Assistant Engineer Rajasthan State Electricity Board, Kishangarh, in complainant''s case the complainant received the bill for the month of March, 1975 amounting to Rs. 231.49 p. which was deposited in the Bank on March 31, 1975; the bill amounting to Rs. 81,30p. for the month of April, 1975 was deposited on April 28, 1975; thereafter, the bill of Rs. 302.54p. for the month of May, 1975 was received by him and in that bill, an amount of Rs. 286.36p. were shown as outstanding & Rs. 16.20p. as charges for the current month. The informant further stated that there were no outstandings against him so, he had gone to the Assistant Engineer, RSEB, Kishangarh, for corrections in the bill where the Clerk, Mohan, referred to ledger books and corrected the shown outstanding charges of Rs. 282.30p. to Rs. 137.57p. though he protested saying that there were not outstanding charges against him but the Clerk declined.

It has been alleged in the report that on May, 1975, the Clerk, Mohan, came to his well and told him (informant) that he could reduce the amount of bill if he (informant) did pay half the amount of the bill. Then, the informant alleged that he did not want to pay the bribe and wanted to get Mohan caught red-handed. Upon the aforesaid report, a trap was arranged for 20th May, 1975, and after the trap, the appellant was challaned in the Court of the Special Judge (ACD)'' Rajasthan, Jaipur, and was charged with the offences of Section 161, Indian Penal Code and Section 5(1)(d) and (2) of the Prevention of Corruption Act, 1947. The prosecution examined as many as 11 witnesses in all. The appellant was examined u/s 313, Cr. PC who denied the charges levelled against him by the prosecution witnesses and examined five witnesses in defence.

I have heard Shri B.K. Pathak, the learned counsel for the appellant, and the Public Prosecutor.

Shri Pathak challenged the findings of the trial Court on the ground that the prosecution witnesses were not reliable and the learned trial Court fell in error in placing reliance of the statement of these witnesses and further erred in convicting the appellant for the aforesaid offences. In this regard, Shri Pathak referred to certain portions of the statements of the prosecution witnesses, in order to eontrovert the findings arrived at by the learned trial Court. During the course of trial, the prosecution witnesses have made improvements in the prosecution story, Shri Pathak added.

Shri Pathak then urged that the defence witnesses have fully established that the bills in respect of the outstanding electricity consumption charges were being issued because the Urban Co-operative Bank Limited did not send the cash scroll showing the payment having been made of the bills in the Bank. In this view of the matter, according to Shri Pathak, it is clear that the investigation has not fairly been done and the prosecution could not establish its case beyond reasonable doubt where as, the defence has fully established its case and it is more than probablised. The appellant by his statement and that of his witnesses, completely rebutted the presumption which can be raised against him in case the witnesses of the prosecution are relied upon, Shri Pathak concluded.

Shri K.N. Shrimal, the learned Public Prosecutor controverting the aforesaid submissions made on behalf of the appellant, wrangled that the prosecution successfully proved the charges against the accused-appellant who has rightly been convicted by the trial Court, Shri Shrimal then urged that in the instant case, there is presumption in favour of the prosecution u/s 4 of the Prevention of Corruption Act and, it was for the accused appellant to rebut the aforesaid presumption.

I have carefully considered the points raised by both the parties and have perused the entire record.

Let me first have a consideration on the proposition of law in respect of presumption.

Before a presumption u/s 4(1) of the Act is raised, the prosecution must establish that an accused willingly took the money or the thing offered to him knowing fully well that the gratification was meant for the use of somebody else. Where a person is charged u/s 6(a) of the Prevention of Corruption Act and the prosecution relies upon the presumption against the accused, the burden is on the prosecution to prove that the gratification was paid or given and received by the accused; that time he was a government employee and that, has given or seeks to have dealings with the Government or its department. It is therefore, upon the prosecution to prove not only the passing of the money to the accused, but also that he took it with a consenting mind. This would necessitate proof of either an agreement to accept prior to the actual acceptance, or of his consent to accept the same as gratification at the time when the money was offered.

In view of the aforesaid observations it is thus clear that unless it is proved that the accused did receive gratification, there will not be any presumption that gratification was received as a motive or reward. Before relying upon presumption in this Section the prosecution must prove that the accused accepted or obtained any gratification other than legal remuneration. Generally, the burden to prove the ingredient of offence of Section 161, IPC, lies on the prosecution.

Section 4 of the Prevention of Corruption Act does not dispense with the necessity to prove on the part of the prosecution that gratification or some valuable thing proceeded from the complainant to the accused, The moment however, when the prosecution proves that the accused accepted or agreed to accept any gratification the presumption will be raised against him that he received it as a motive or reward for exercising any official favour or disfavour.

If the evidence of the prosecution is examined in the light of the aforesaid principles I am of the view that the prosecution failed to prove the charges against the accused appellant.

I may Observe that the presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case, Such proof any part take the shhpe of defence evidence led by the accused or it may consist of circumstances appearing in the prosecution evidence, itself as a result of cross-examination or otherwise. The accused may rebut the presumption by showing a mere preponderance of probability in his favour; and it is not necessary for him to establish his case beyond a reasonable dubt.

The sole purpose of the presumption u/s 4(1) is to relieve the prosecutioo of the burden of proving a fact which is an essential ingredient of the offences u/s 5(1)(2) of the Prevention of Corruption Act and Section 161, IPC. The presumption, therefore, be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, out of judicial courtsey it cannot be refected out of hand as still-born.

Let me now consider the facts of the present case in the light of the principles enunciated above.

The learned trial Judge placed reliance on the statement of Roop Singh PW 3 who deposed that at an earlier occasion the appellant had accepted an illegal gratification from him 1 am of the opinion that this was not relevant pieceof evidence because there was no charge under sec. 5(1)(d) of the Prevention of Corruption Act against the appellant, in the present case. Hence it would be of no use to discuss other parts of his evidence.

Dhanna Singh PW 4 has wrongly been relied upon by the learned trial Judge even though his evidence does not inspire any confidence as he being nephew of the complainant, Panna Singh, is an interested witness. Dhanna Singh, in cross-examination, admitted to have seen the appellant for the first time at the crusher on the day of the incident whereas it is in contravention with his police statement Ex. D. 2 wherein he had stated that on May 19, 1975, Mohan Babu (appellant) had called him and had a talk to Arjun Sindhi. He PW 4 admitted to have given the aforesaid version to the police but explained that the accused came to him but he was not there and did not meet the appellant, and he was informed by Arjun Sindhi about coming of the appellant. In his statement, he has stated that he came to the crusher at 6. 30 p m on 20th May, 1975, and there the appellant had also gone; he along with Panna Singh & Laxman Singh seated near the water tank, the accused told Laxman Singh that he would first bring Rs. 150/- and thereafter he (accused) would correct his bill which was regarding electricity charges of more than Rs. 300/-; whereas Laxman PW 6 has given different version. Laxman PW 6 deposed he had shown the bills to the accused and then accused told him to pay Rs. 70/- and thereafter he would reduce the amount of bill from Rs. 310/- to Rs. 150/-. It is thus clear that the statament of the aforesaid two witnesses are discrepant. This evidence is however not material because there was no charge for the offence u/s 5(1)(d) of Prevention of Corruption Act against the appellant.

The most crucial version given out by Laxman PW 6 is that the aecused told Pannasingh that they had already talked and he would pay him Rs. 65/- and thereupon the accused would correct his bill. Consequently, Panna Singh paid Rs. 65/- to the appellant. The aforesaid version given out by Laxman is obviously discrepant to the statement of Panna Singh PW 5 who has stated that the accused had started talking to Dhanna Singh PW 4 that this amount has been settled with Panna Singh; and that in case Dhanna Singh is ready to pay money, his bill would also be corrected: and when talk was going on between the accused and Dhanna Singh PW 4 the accused demanded money from Panna Singh PW 5 thereupon he gave Rs. 65/- along-with bill (Ex. P. 10) to the accused. This part of the statement is however falsified on the reason that this is not a prosecution case that the bill (Ex.P.10) was recovered) from the person of the accused. It is thus clear that bill (Ex. P. 10) was not given to the appall ant. Dhanna Singh further deposed that there was no talk in between Panna Singh and the accused except paying accused Rs. 65/-. Laxman PW 6 also did not support the statement of Dhanna Singh; he is a chance witness; the story given out by this witness, Laxman, is not trust worthy from the very beginning.

The decoy, Panna Singh PW 5 has deposed that he had gone to the office of the Assistan Engineer, RSEB, on May 19, 1987, and contacted Mohan (appellant) in the office, and the bills (Ex. P. 5 & P. 9) were shown to him; and further stated that he had deposited the amount of these bills; and that he had also shown the bills for the month of May, 1975 and asked the accused as to how the outstanding of Rs. 286.31p. were shown against him, upon which, the accused after seeing (Ex. P. 9) corrected the bill and entered Rs. 137. 57 p. as outstanding charges. The decoy further deposed that he had told the accused that only Rs. 16.20 were due against him of bill for May, 1975 and how Rs. 137.57 p. have been entered by the accused. In this case, the prosecution has not led any evidence on the point that the corrections were made by the accused on May 19, 1975 rightly or not. It is admitted that the amount of bill was deposited in the Urban Co-operative Bank, Kishangarh and till the intimation of payment by the Bank was received in the Office of the Assistant Engineer RSEB, Kishangarh, the outstanding charges were to be shown as per the ledger maintained in the RSEB Office. In the ledger (Ex. P. 20) Rs. 286.31 p. were shown as outstanding against the decoy in the month of May, 1975. Panna Singh had paid the bill of Rs. 231.49p. for March, 1975 vide (Ex. P. 8). The payment of Rs. 81.30p. for the month of April, 1975 was not intimated to the RSEB Office, Kishangash, therefore Rs. 88.90 p. the payment after due date alon with Rs. 48.67p. payment due for the month of February, 1975 amounted to Rs. 137.57 p. This shows that the corrections made by the appellant for the amount of Rs. 137.57 p. were right as per the entry in the ledger. Looking to the facts and evidence brought on record, in the present case, it is very clear that the accused had made corrections reducing the amount of bill to Rs. 137.57 p without any demand of bribe and without any hesitation by referring to the ledger maintained by the RSEB Office. In these circumstances, it was quite unnatural for the accused to have demanded money for completely writing of the outstanding amount of Rs. 137.57 p. The outstanding charges of February and April, 1975, if deposited, were not intimated, by the Bank and therefore, the appellant would not have written off or corrected the bill of out standing charges amounting to Rs. 137.57p, without there being any entry in the ledger of that having been deposited in the bank. There is no investigation and evidence on this point also. In this manner, the prosecution case suffers from serious infirmities and laches; and as such, the testimony of Panna Singh PW 5 deserves to be discarded.

Panna Singh PW 2 in his statement also deposed that the accused went to his well in village Kakerda in the evening at about 6.30 p.m. on 19th May, 1975 and demanded bribe of Rs. 65/- thereupon he told the accused that he did no have money at that time and would pay on return from Ajmer; and he left the well. Thereafter, he on his return from Ajmer found that the accused was not there at the will. On May 20, 1975, he filed written complaint Ex. P. 11 in the office of Deputy Superintendent of Police (ACD) Ajmer, and submitted six currency notes of Rs. 10/- and one of Rs. 5/- along with the b 11 Ex. P. 10. It is the case of prosecution that the motbir witnesses were there from before as they were called by the Deputy Superintendent of Police. It is difficult to understand as to how the Deputy Superintendent of Police could call Kishan Gopal PW 7 and Jitendra Kumar PW 8 before the report Ex P 11 was lodged, because the Deputy Superintendent of Police could not have anticipated the report before him. Admittedly, the case of prosecution is that the trap was not successful in the Office on May 20, 1975 because, the accused appellant had refused to accept the money in the Office and told the decoy that he would come to his well situated in village Kakerda at about 6.30 p.m This part of the statement of Panna Singh PW 5 has not been supported by any direct evidence. The other witnesses merely deposed that they saw the accused in the company of Panna Singh on May 20, 1975 when the trap party reached at Kishangarh and it was informed to the trap party by Panna Singh that the accused refused to accept the money in Kishangarh.

Panna Singh PW 5 in his statement has deposed that laxman and Dhanna Singh joined him in the evening and they came with appellant in the office Bus though in earlier part of the statement, he has deposed that they had come in the truck. This part of the statement of Panna Singh has not at all been supported by Dhanna Singh and Laxman. It will not be out of place to mention that Dy. S.P (ACD) without making any inquiry into the bill as to whether it was properly corrected by the accused-appellant on May 19, 1975, arranged a trap against the appellant and called motbir witnesses in anticipation. There was no explanation of Dhanna Singh and Laxman being there at the crusher when the trap was gong to be held against the appellant at Kishangarh. The presence of these witnesses at the scene is not free from doubt. The story given out by Panna Singh docs not inspire any confidence. Panna Singh makes the most crucial statement when he said that at the crusher accused started talking to Dhanna Singh and that the money was settled with Panna Singh already, and he (Dhanna Singh) would also give money so that his bill may also be corrected and at the time when the talk was going on between the accused and Dhanna Singh, Panna Singh paid Rs. 65/- and he also handed over the bill to the accused appellant. This part of the statement is quite contrary to the statement of Dhanna Singh who has deposed that Panna Singh had already talked and he (Panna Singh) would pay him Rs. 65/- there upon the accused would correct his bill. Panna Singh also deposed that it is wrong to say that Rs. 137.57p were due as outstanding upto April. 1975. He has admitted that his electricity connection was cut by the department on May, 18, 1975 and the payment of bill (Ex. P. 10) was to be made on May 21, 1975. Later on, the witness said that portion C to D of bill (Ex. P. 10) was correctly written in Ex. P 11 and on May 18, 1975, the RSEB staff had taken away the ''cut out'' and did not disconnect his connection. He admitted that the portion A to B of his police statement was stated by him. The witness then stated that he reached ACD office in the morning of May 20, 1975. Later on, he stated that when he went to the office of RSEB then the conversation between him and the accused was heard by Motbir witnesses which he immediately denied and this part of the statement has not been corroborated by any of the prosecution witnesses though as per the statement of Deputy Superintendent of Police, all the Motbirs were specially deputed by him in order to hear the conversation between the accused and the decoy Panna Singh.

It is the case of prosecution that it was informed to the trap party by Panna Singh that accused refused to accept the money at Kishangarh and he told the decoy that he would come to his crusher to take money. I failed to understand this theory of the prosecution because, it was not difficult for the accused appellant to have accepted the money of Rs. 65/- in Kishangarh which is a very big town and as to why the appellant preferred to take money at the well. This part of the prosecution story does not find place in the police statement of the decoy, Panna Singh.

The defence of the appellant is that the amount which was recovered from his person by the trap party was paid to him by Panna Singh in payment of loan advanced to Panna Singh; and he had gone to the decoy in order to make demand for the payment of advance money made on loan to the decoy. In these circumstances, it is to be seen as to which of the version about going on the place of incident is correct. And, in view of the version given out by the appellant and his defence witnesses, I am of the view that the explanation given by the appellant appears to be probable. It has been admitted by Dhanna Singh that he is brother of brother-in-law of Panna Singh.

Krishna Gopal (PW 7) and Jitendra Kumar (PW 8) have not supported Panna Singh in material particulars. They did not hear any conversation between Panna Singh and the accused on May 20, 1975 in the office of Assistant Engineer, RSEB. Kishangarh and so also at the crusher. In this view of the matter, the evidence of Panna Singh is without any corroboration from independent source.

Mahavir Prasad (PW 11) who investigated the case, has deposed that Panna Singh (PW 5) went to his office alone on 20th May, 1975 at 5.30 a m. in morning where as Panna Singh (PW 5) himself deposed that he reached the ACD office at 7 a m. in the morning. Mahavir Prasad (PW 11) deposed that both the Motbir witnesses reached his office in between 9.30-10-00 a.m. where as Panna Singh has stated that the Motbir witnesses were there in the office of the Dy. S.P. from before at 7 a.m. in the morning.

Mahavir Prasad (PW 11) has also stated that he did not know as to whether Laxman Singh is a witness in the case, and he did not know Laxman Singh at all. Mahavir Prasad (PW 11) also stated that he did not remember whether Laxman Singh was sitting at the crusher and that Ex. P. 10 was not referred by him from the accused, and Ex. P. 10 was handed over to him by the complainant, Panna Singh. He did not investigate as to whether in fact, Rs. 137.57p, as entered in Ex. P. 10 was an amount due against Panna Singh and he did not consider it proper to investigate on this point. Thus, looking to the entire facts and circumstances of the case brought on record, it appears that Dhanna Singh PW 4 and Laxman Singh PW 6 were merely chance witnesses and no investigation was gone with regard to their presence and to the actual outstanding charges against Panna Singh at that time.

On the above analysis of the entire evidence, I am of the opinion that the prosecution has utterly failed to prove that Rs. 65/- were given to the accused as bribe for secring Rs. 137.57p. as outstanding in Ex. P. 10 which was never handed over to the accused since it was found in possession of the decoy after the trap. It was the duty of prosecution to prove that the bribe money was received for correcting the bills Ex. P. 10, and Ex. P. 10 was handed over to the accused along with Rs 65/-. Further, from the above discussion of the evidence, it is precisely clear that the circumstantial and documentary evidence creates room for doubt that the defence version was probably true and the statement of the decoy cannot be accepted without corroboration; and that, so many jerks and jolts appear to have been given to the prosecution case by contradictory statements of the witnesses; and that the story of demand of bribe by the appellant from the decoy is not proved, and in view of the categorical position taken by the prosecution in evidence, it does not now lie in their mouth to say that the appellant must have received the money much less can it be said that the appellant has abused his official position or has used any illegal means in acting as such. Thus, paradoxical as it may seem, the very story propounded by the decoy PW 5 negatives the presumption, nipping it as it were in the bid. Be that as it may, the rule of presumption engrafted in Section 4(1) being antithetical to the prosecution story could not be availed of by the prosecution. This being the position, the appellant could not be held guilty of the charge levelled against him with the aid of Section 4(1) of the Act, and, the presumption engrafted u/s 4(1) of the Prevention of Corruption Act on account of recovery deserves to be dismissed out of hand forthwith. As stated earlier, in any event, even if presumption is raised, the accused appellant has rebutted the presumption by cross examination of Panna Singh PW 5 (decoy) and in his statement u/s 313, Cr. PC along with defence witnesses. The case of the appellant was that Panna Singh had taken Rs. 65/- from him on May 19, 1975 for purchasing some clothes from Kishangarh and the same was to be returned at Ajmer by payment to his brother; and when the amount was not paid to his brother the appellant stated to have gone to demand the amount at the crusher from Panna Singh. This story of defence has been corroborated by the defence witnesses, Kailash Chandra DW 1 and Sita Ram Agarwal DW 4. In my view, the presumption raised against the appellant stood completely rebutted, in as much as the prosecution did not prove the position of outstanding charges against Panna Singh even though S.P. Santosh PW 1 who was Assistant Engineer, RSEB, and Ganesh Verma, LDC, PW 2 were examined as witnesses from the Electricity Department; and further the appellant in his statement himself fully established that the bills were being charged in the consumer''s bills because the Urban Co-operative Bank Limited Kishangarh did not send the cash scroll showing the payment of the bills made in the Bank.

In Man Singh Vs. Delhi Administration, their Lordships of the Supreme Court observed that it is well settled that in such cases the accused is not required to prove his defence by the strict standard of the proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is probable and once this is done, the presumption u/s 4 stands rebutted.

As I have alrealy discussed, in the instant case, it cannot be said that the defence version, is improbable. In these circumstances, the appellant cannot be allowed to rebut the presumption which is sought to be drawn against him. Thus, the essential ingredient of the offence u/s 5(1)(d) of the Prevention of Corruption Act was lacking in this case, and so also the mischief of Section 161, IPC. Be that as it may, from the oral and circumstantial evidence discussed heretofore, it can be said that the prosecution has brought a formidable case against the appellant and that his plea is bogus and an after thought. And, on the facts of this case, the prosecution had failed to bring home the charges to the appellant beyond a reasonable doubt. Accordingly, I allow this appeal.

In the result, this criminal appeal filed by the appellant, Mohan Chandnani, is allowed; the judgment dated April 18, 1978 passed by the learned Special Judge, ACD, Rajasthan, Jaipur, whereby the appellant had been convicted and sentenced u/s 161, IPC read with Section (1)(d) (2) of the Prevention of Corruption Act, 1947, is hereby set aside; and the appellant is acquitted of the charges levelled against him under the aforesaid Sections. The appellant is on bail and need not surrender. The bail bonds are cancelled.