Mohanlal Joshi vs State Of Chhattisgarh

The instant appeal has been preferred against judgment dated 12.9.2017 passed by the Special Judge under the Prevention of Corruption Act, 1988 (for short ‘the PC Act’), Bastar at Jagdalpur in Special Case No.3 of 2015, whereby the Appellant has been convicted and sentenced as under:

Conviction

Sentence

Under Section 7 of the Prevention of Corruption Act, 1988

Rigorous Imprisonment for 3 years and fine of Rs.3,000, in default of payment thereof, additional rigorous imprisonment for 3 months

Under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988

Rigorous Imprisonment for 4 years and fine of Rs.3,000, in default of payment thereof, additional rigorous imprisonment for 3 months

The jail sentences are directed to run concurrently

According to the case of prosecution, at the relevant time, the Appellant was posted as a Block Education Officer at Darbha. At that time, Complainant Fuleshwari Podyami (PW1) was posted as a Superintendent of Girls Hostel, Gumadpal from 11.9.2013 to 30.9.2014. Thereafter, she was transferred and posted at Government Higher Secondary School, Block Darbha as a Panchayat Teacher. It is alleged that in the month of September, 2014, total 83 students were staying in the hostel and to maintain their expenditure, at the rate of Rs.750 per month per student, i.e., total Rs.62,250 was to be received by the Complainant for which she had prepared a bill voucher. In the complaint (Ex.P1), it is further stated that the Complainant had obtained ration and wood on credit for the month of September, 2014. it is further alleged that the Appellant demanded a sum of Rs.21,000 from the Complainant as bribe out of the amount of Rs.62,250. The Complainant refused to give the said amount then the Appellant transferred the Complainant back to her institution, i.e., Government Higher Secondary School, Chandragiri. After her transfer, a cheque was issued by the Appellant to the newly posted Hostel Superintendent Smt. Balwati Kujur, who then paid a cash of Rs.62,000 to the Complainant for meeting the expenditure of the previous month. The Complainant paid the outstanding of the previous month, i.e., September, 2014. It is further alleged that even thereafter the Appellant demanded a sum of Rs.21,000 from the Complainant as bribe on which a written complaint was made by the Complainant to the Deputy Superintendent of Police, Anti Corruption Bureau, Jagdalpur on 17.10.2014 vide Ex.P1. A verification panchnama of the written complaint was prepared and a digital voice recorder was given to the Complainant for recording the conversation of demand of bribe. On 9.12.2014, the Complainant submitted the digital voice recorder as also second complaint. The conversation recorded in the digital voice recorder was also identified by the Complainant and a transcription thereof was prepared. First Information Report (Ex.P21) was registered. A sum of Rs.15,000 in 30 notes of the denomination of 500 was provided by the Complainant to the Anti Corruption Bureau for the purpose of trap of the Appellant. On recording the preliminary panchnama, the investigating agency constituted a trap team and after completion of other formalities the trap team reached Darbha. The Complainant entered the office of the Block Education Officer/Appellant and thereafter she gave a signal to the trap team. Then the trap team entered the office of the Block Education Officer/Appellant. One member of the trap team, namely, Rajendra Singh Thakur caught both the hands of the Appellant from behind. A solution of sodium carbonate was prepared. Fingers of both the hands of the Appellant were dipped into the solution upon which colour of the solution turned into pink. The Complainant told that the Appellant had taken the bribe amount from her in his right hand and kept the same in the right drawer of the table. The amount was taken out from the said drawer by panch witness Harish Saxena. After completion of other formalities on the spot, the seized articles were sent to the Forensic Science Laboratory (FSL) for chemical examination vide Ex.P26. Report of the FSL is Ex.P28. Statements of witnesses were recorded under Section 161 Cr.P.C. After completion of the investigation, a charge-sheet was filed against the Appellant. Charges were framed against him. In support of its case, the prosecution examined as many as 21 witnesses and 29 documents. In examination under Section 313 Cr.P.C., the Appellant denied the guilt and pleaded innocence. A defence was taken by him that for the month of September, 2014 a cheque of stipend was already given to the newly posted Hostel Superintendent Balwati Kujur and on the date of making the complaint only Rs.250 was left to be received by the Complainant. Therefore, for this purpose, there was no occasion for him to demand bribe of Rs.21,000. Further defence was taken by him that multiple complaints were received against the Complainant from the villagers regarding her misconduct and, therefore, she was transferred and after her transfer only a show cause notice was issued to her. Therefore, the Complainant was annoyed with him. With regard to the acceptance of the amount of Rs.15,000, a defence was taken by him that since the Complainant was transferred and some money and passbooks were also left with her and the same were to be deposited by her to him, on the date of trap she had brought the said amount of Rs.15,000 and the passbooks and some application for handing over to him which he had received on that date. He examined himself as a Defence Witness under Section 315 Cr.P.C. After conclusion of the trial, the Trial Court convicted and sentenced him as mentioned in first paragraph of this judgment. Hence, this appeal.

Learned Counsel appearing for the Appellant submitted that without there being any clinching and sufficient evidence on record, the Trial Court has convicted the Appellant. The prosecution has failed to prove the factum of demand and acceptance of bribe amount by the Appellant. From the evidence available on record, it is clearly established that on the date of complaint the Complainant had already been transferred and for the month of September, 2014 the amount of stipend of the students had already been given to the newly posted Hostel Superintendent Balwati Kujur and she had also paid the amount of Rs.62,000 in cash to the Complainant and only Rs.250 was left to be paid to the Complainant. Therefore, no question arises that the Appellant would demand any bribe from the Complainant. It was further argued that in the transcriptions of the conversation (Ex.P4 and P9) took place between the Appellant and the Complainant also, nothing is available to show that the Appellant had demanded or accepted any bribe in any manner from the Complainant. The said voice recording was not sent to the FSL for verification that the same was of the Appellant. Reliance was placed on (2015) 3 SCC 123 (Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke). It was further argued that the Appellant has properly explained the reason for receiving the amount and the explanation submitted by him is probable and reasonable. Therefore also, the conviction of the Appellant is not sustainable. Reliance was placed on (2002) 10 SCC 371 (Punjabrao v. State of Maharashtra) as also on 2012 SCC OnLine Chh 525 (Sunhar Singh Dhruv v. State of M.P.) which is a judgment passed by a Co-ordinate Bench of this Court.

Learned Counsel appearing for the Respondent/State supported the impugned judgment of the Court below.

I have heard the rival contentions put-forth on behalf of the parties and perused the entire evidence adduced by the prosecution as well as by the defence before the Court below both oral and documentary minutely.

It would be appropriate to first refer to some of the relevant judgments of the Supreme Court relating to the cases under Sections 7, 13(1)(d) and 13(2) of the PC Act.

In (2013) 14 SCC 153 (State of Punjab v. Madan Mohan Lal Verma), the Supreme Court observed and held as under:

“11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab, (1972) 3 SCC 652, T. Subramanian v. State of T.N., (2006) 1 SCC 401, State of Kerala v. C.P. Rao, (2011) 6 SCC 450, Mukut Bihari v. State of Rajasthan, (2012) 11 SCC 642)”

In 2015 (4) Crimes 308 (SC) (N. Sunkanna v. State of Andhra Pradesh), it was held that unless demand of illegal gratification is established, offence under Section 7 of the PC Act is not proved. Therefore, question of its acceptance will not arise. Mere recovery of tainted money from the possession of the Appellant is not enough.

In 2015 CriLJ 3928 (Dashrathbhai Vadilal Nayak v. State of Gujarat), it is observed by the Gujarat High Court thus:

“11. This Court in “Kanubhai Kantibhai Patel v. The State of Gujarat”, 1998 (1) GLH 924 (H.R. Shelat, J.), held that the ‘demand’ and ‘acceptance’ being vital ingredients, they must be proved by the prosecution. In “B. Jayraj v. State of Andhra Pradesh” (2014) 13 SCC 55, the original accused-appellant came to be prosecuted on the basis of a complaint filed by PW-2. Later on, PW-2 turned hostile and despite that trial Court convicted the accused-appellant on the basis of the evidence of panch witness (PW-1) and recovery of tainted currency notes from appellant-accused. The Apex Court, hence, hold that once the original complainant (PW-2) turned hostile and no other person, who had witnessed the transaction between the complainant and the accused-appellant, was examined, the contents of the complaint cannot be relied on and in absence of proof of demand for illegal gratification, mere recovery of tainted currency notes from the accused-appellant did not establish commission of offence, and thereby, set aside the conviction of the accused -appellant. In the case on hand also, from the material on record, the demand on the part of the accused is not clearly coming out. If, we go by the omissions and contradictions in the complaint, then, there is not demand of Rs.500/-. On the contrary, it is the complainant, who, himself, stated that he had come with money. However, why he had come with money, for what purpose, nothing is coming on record. Further, the complaint, himself, does not possess a sterling personality, and therefore, his evidence cannot be believed in the absence of corroboration. Therefore, the submission of Ms. Mehta that there are no omissions or contradictions in the evidence of the witnesses and that the learned trial Court rightly convicted the accused and that the demand, acceptance and recovery are proved cannot be accepted, as from the record it is clear that the apron was not put on by the accused-doctor, but, it was hanging on the peg. Thus, the case put forward by the prosecution cannot be accepted. Once, the edifice is gone, the entire case of the prosecution fells on the ground. Hence, the accused is entitled to be given him the benefit of doubt and the appeal requires to be allowed.”

In (2015) 10 SCC 152 (P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh), the Supreme Court observed and held as under:

“20. This Court in A. Subair v. State of Kerala, (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that (at SCC p. 593, para 28) the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.

In State of Kerala v. C.P. Rao, (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj v. State of A.P., (2014) 13 SCC 55 in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasised, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.”

Recently, in 2023 SCC OnLine SC 424 (Soundarajan v. State Represented by the Inspector of Police Vigilance Anticorruption Dindigul), the Supreme Court observed and held thus:

“9. We have considered the submissions. It is well settled that for establishing the commission of an offence punishable under Section 7 of the PC Act, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in the case of Neeraj Dutta 2022 SCC OnLine SC 1724 has reiterated that the presumption under Section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof.”

In the light of above-quoted judgments of the Supreme Court, now, I shall examine the facts of the present case.

Undisputedly, at the relevant time, the Appellant was posted as a Block Education Officer at Darbha. It is also not in dispute that the first written complaint (Ex.P1) was submitted on 17.10.2014. As contained in Ex.P1, it is alleged that total stipend amount of Rs.62,250 was due for September, 2014 at the rate of Rs.750 per month per student. Allegedly, for releasing the said amount, the Appellant demanded a bribe of Rs.21,000 from Complainant Fuleshwari Podyami (PW1). The Complainant (PW1), in her cross-examination in paragraphs 20 and 21 categorically admitted the fact that on 30.9.2014 she had been transferred from the post of Hostel Superintendent to Government Higher Secondary School Chandragiri as a Panchayat Teacher. It is further admitted by her that out of the amount of Rs.62,250, which was due for the month of September, 2014, an amount of Rs.62,000 was already given to her by Balwati Kujur, the then Hostel Superintendent and for that month of September, 2014, only Rs.250 was left to be received by the Complainant. The above admission made by the Complainant (PW1) and the contents of the first written complaint (Ex.P1) clearly show that on the date of written complaint the Complainant had to receive only Rs.250 for the month of September, 2014. Therefore, for releasing the amount of Rs.250 only, the Appellant would have demanded bribe of Rs.21,000 from the Complainant is not acceptable.

Further, according to the case of prosecution, on the first complaint made by the Complainant, a digital voice recorder was given to her for recording conversation between her and the Appellant. It is the case of the prosecution that on 19.11.2014 a conversation took place between her and the Appellant in the office of the Appellant which she had recorded in the said digital voice recorder. A transcription of the said conversation was prepared by the prosecution vide Ex.P4. On a careful perusal of Ex.P4, it reveals that there was no demand of Rs.21,000 or Rs.15,000 by the Appellant during the said conversation for release of the bill voucher of Rs.62,250. Though from some parts of the conversation, it appears that the Complainant herself proposed to the Appellant that she will give him a sum of Rs.15,000, but, in the transcription, it is nowhere mentioned that the Appellant made any demand for this amount of Rs.15,000 as bribe.

According to the case of the prosecution, at the time of trap also, the conversation of the Appellant and the Complainant was recorded and a transcription thereof was also prepared vide Ex.P9. A careful perusal of Ex.P9 goes to show that there was no demand by the Appellant for the said amount of Rs.15,000. Relevant part of the conversation is mentioned herein below:

The evidence available on record shows that at the time of trap also, when the Complainant entered the office of the Appellant, no shadow witness was present there. Therefore, except the statement of the Complainant (PW1), no other evidence is available on record with regard to the demand of bribe made by the Appellant and his acceptance of the said amount.

With regard to acceptance of the amount of Rs.15,000 from the Complainant, an explanation has been offered by the Appellant that the Complainant had to deposit the sum of Rs.15,000 and some passbooks and some application to him. The above explanation offered by the Appellant is also corroborated by independent witness of the case, namely, Smt. Sweta Sathwani (PW2). This witness, according to the case of the prosecution, was present inside the office of the Appellant at the time of trap. She has categorically deposed that at the time of trap, in her presence, the Complainant entered the office of the Appellant and handed over him Rs.15,000 saying that she had brought the money which he had asked for. This witness further admitted that at that time a discussion had also taken place between the Complainant and the Appellant regarding some passbooks. Seizure memo (Ex.P15) also corroborates the above explanation offered by the Appellant. According to Ex.P15, two savings account passbooks, one application written by the Complainant and one file cover were seized along with the amount of Rs.15,000. Therefore, I find some substance in the argument raised by Learned Counsel for the Appellant that as per the explanation offered by the Appellant he had received the amount of Rs.15,000, some passbooks and one application written by the Complainant and one file cover from the Complainant which she had to hand over him. If the Appellant had demanded the bribe of Rs.15,000 from the Complainant, there was no occasion for the Complainant to bring and give other aforementioned articles to the Appellant and the Appellant had also no occasion to receive the same from the Complainant. 18. In Punjabrao (supra), the Supreme Court observed and held as under:

“3. We have examined the judgment of the learned Special Judge as well as that of the High Court. It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. It is undisputed that from 24th to 26th the Patwari was collecting loans in a collection campaign. It is, of course, true as observed by the High Court that when the investigating officer seized the amount from the accused Patwari, he did not offer the explanation that it was in relation to a collection of loan, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under Section 313 when such explanation could be held to be reasonable under the facts and circumstances of the case, as indicated by the learned Special Judge while acquitting the accused. It also transpires that the High Court, while setting aside an order of acquittal recorded by the Special Judge, has not focused its attention on the reasoning advanced by the Special Judge, and by mere reappreciation has come to the conclusion, and in our view the conclusion is based upon a misreading of the relevant evidence including the evidence of PW 2. In the aforesaid circumstances, we have no hesitation to come to the conclusion that the High Court erred in interfering with the well -reasoned judgment of the Special Judge in an order of acquittal. We, therefore, set aside the impugned conviction and sentence passed by the High Court. The appeal is allowed. The accused-appellant is acquitted of the charges levelled against him. The bail bond stands discharged.”

This Court also in Sunhar Singh Dhruv (supra) held thus:

“10. It is a well settled legal position that if the reason for receiving the amount is explained and the explanation is found to be probable and reasonable, the appellant has to be acquitted. So is the position in this case also because in the statement of the accused/appellant recorded under Section 313 of the Code of Criminal Procedure, he has categorically stated that as he had tried to resolve the dispute between the two i.e. Bholaram and die complainant Baburam, complainant Baburam got annoyed and threatened him to implicate in a false case. Further, in the case in hand the factum of demand of illegal gratification by the accused/appellant has not been established by the prosecution. Hon’ble the Supreme Court time and again has reiterated that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Even the official witnesses namely Dr. Anup Chaterjee (PW-7) and Mahendra Lal Kusre (PW-8) have stated in their evidence that they did not see the incident of bribe being given to the accused/appellant. Since the prosecution has not been able to prove the demand of illegal gratification by adducing reliable and clinching evidence, merely on recovery of tainted money will not be sufficient to base conviction of the accused/appellant and in these circumstances he should receive the benefit of doubt.”

On a minute examination of the evidence available on record in the light of the above referred to judgments, it is quite vivid that in the instant case on the date of making of complaint by the Complainant only a sum of Rs.250 was left to be given to the Complainant and, therefore, the Appellant had no occasion to demand a bribe of Rs.15,000 or Rs.21,000 from the Complainant. In the transcriptions of the conversation (Ex.P4 and P9) also, there is no material available to establish demand of any bribe by the Appellant. Though acceptance and recovery of Rs.15,000 from the Appellant is established, there is no evidence available on record to establish that the said amount was received by the Appellant as an illegal gratification. Rather, from the explanation offered by the Appellant, it reveals that the said amount of Rs.15,000 was handed over by the Complainant to the Appellant along with some passbooks, one written application and one file cover as mentioned in the seizure memo (Ex.P15) for depositing the same with the Appellant. A reasonable and probable explanation has been offered by the Appellant in this regard. Considering the totality of the case, I find that the prosecution has failed to establish the fact of demand of bribe by the Appellant and has also not been able to establish the fact of acceptance of the said amount of Rs.15,000 by the Appellant as an illegal gratification. Therefore, the conviction of the Appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act is not sustainable.

Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charges framed against him.