Nav Ratan Tiwari @APPELLANT@Hash State of Chhattisgarh

Conviction,Sentence

Under Section 7 of the Act of 1988,"Rigorous Imprisonment for 2 years and fine of Rs.5,000/-,

in default additional Rigorous Imprisonment for 6 months

Under Section 13(1)(d) read with Section 13(2) of the Act

of 1988","Rigorous Imprisonment for 2 years and fine of Rs.5,000/-,

in default additional Rigorous Imprisonment for 6 months

The jail sentences are directed to run concurrently

tape recorder. On 8.9.1997, he first went to the Lokayukta office. He gave a cassette, a tape recorder and 10 currency notes of Rs.100/- each. He",

also gave complaint (Ex.P3). He has further stated that panch witnesses Dinesh Utpreti (PW4) and B.K. Pandey (PW9) were called by Lokayukta.,

They read his complaint. They also heard the tape recording.,

A script of the conversation recorded in the tape recorder was prepared in their presence vide Ex.P4. Both panch witnesses Dinesh Utpreti (PW4),

and B.K. Pandey (PW9) have supported the above statement of the Complainant. Constable Ramlal (PW10) has also supported the above statement,

of the Complainant and he has further deposed that on 8.9.1997 he had prepared a script of the conversation recorded in the tape recorder in Hindi in,

his own hand writing. He had got the script typed and the typed script is Ex.P4. In para 25 of his cross-examination, he has admitted the fact that he",

had given both the handwritten and typed scripts to the Investigating Officer R.S. Dhruw (PW12), but his handwritten script is not on record. As",

stated by this witness, his handwritten script was typed by Ms. Satya Acharya. This witness has further admitted the fact that at the time when he",

had heard the conversation in the tape recorder and written its script in his hand writing, Ms. Satya Acharya was not present there. She was in",

another room.,

Complainant Laxminath Netam (PW2) has further deposed that the currency notes which he had submitted were smeared with phenolphthalein,

powder by Guniram (not examined). The tainted notes were kept in his shirt's pocket and he was given a demonstration of the trap proceedings. A,

panchnama thereof was prepared vide Ex.P6. Thereafter, the trap team along with panch witnesses went for Farasgaon by a jeep. The Complainant",

entered the office room of the Appellant and asked the Appellant about completion of his work but the Appellant told him that his work has not been,

completed. On being asked by the Appellant whether he had brought money, the Complainant replied him that he had brought the money. Thereafter,",

the Complainant gave the tainted money in the hand of the Appellant. The Appellant counted those currency notes. At that time, Peon Abhimanyu",

(PW1) entered the room. The Appellant saying the Peon that it was his payment tried to give the tainted currency notes to him.,

Abhimanyu (PW1) has deposed that when he entered the room, at that time, the Complainant had put currency notes of Rs.100/- on the table. At",

that time, what conversation went on between the Complainant and the Appellant, he did not hear. He has further deposed that the Appellant took the",

currency notes in his hand and told him (Abhimanyu) that the same was his payment.,

Complainant Laxminath Netam (PW2) has further stated that he came out and gave a signal to the trap party. At that time, the Appellant came",

behind him and he started throwing away the currency notes which he had with him. At that time, the trap party reached there and caught the hand of",

the Appellant. The hands of the Appellant and the Complainant were washed in different solutions of sodium carbonate. Colour of those solutions,

turned into pink. In paragraph 9 of his cross-examination, he has admitted the fact that as soon as he came out, the Appellant came behind him saying",

“Netam Netamâ€. In paragraph 10 of his cross-examination, this witness has stated that when 2 members of the trap team caught the Appellant,",

the Appellant told them that he had not taken any money. This witness has further stated that the currency notes which were kept by the Appellant in,

his hand were taken back from the hand of the Appellant by the 2 members of the trap team and thereafter, those notes were seized from the",

Appellant. Abhimanyu (PW1), in paragraph 9, has stated that the notes were lying near the gate where the Appellant was caught and the persons who",

had caught the Appellant had asked the Appellant to catch those currency notes in his hand.,

Himalay (PW3) has stated that he was also present at the time of incident. He has deposed that when the Complainant came out of the room of,

the Appelalnt at that time the Appellant saying that “Netam Ruk Ruk apna paisa leja in noton ko table par kaise rakh diye†came out behind the,

Complainant, but the Complainant did not stop and went ahead.",

Dinesh Utpreti (PW4), one of the panch witnesses, has stated in paragraph 4 of his examination that he had reached the office after sometime. At",

that time, he had seen that Lokayukta Officials had caught the hand of the Appellant and he was told that the tainted notes were lying near the",

drainage beside the boundary. Thereafter, the notes were taken up and the Appellant had said that he had not received the tainted notes. In paragraph",

7, this witness has further stated that when they reached the spot, he had seen that police officials were taking up the notes from inside the drainage",

and thereafter after counting the notes the police officials kept the notes with them. In paragraph 10 of his cross-examination, he has categorically",

stated that the police officials had taken up the notes from inside the drainage.,

Another panch witness B.K. Pandey (PW9) has stated that when they reached the spot, at that time, the Appellant was throwing the tainted notes",

of Rs.100/- near the gate of boundary wall and he had taken up those thrown notes. In paragraphs 28 and 29, he has stated that he had taken up the",

notes from inside the drainage and he had also counted those notes there. As per statement of Constable Ramlal (PW10), the tainted notes were",

found outside the boundary wall.,

Kishore (PW6) is the witness who had caught the hand of the Appelalnt at the spot. He has deposed that when the Complainant, by itching his",

head, gave a signal, at that time, this witness and Som Singh entered the office. At that time, the Appellant was throwing away the currency notes. At",

that time, he and Som Singh caught the hands of the Appellant. He has further stated that when they caught the hands of the Appellant, at that time,",

the Appellant had already thrown away all the currency notes and no note was in his hands. This witness has also admitted the fact in paragraph 6,

that a drainage was constructed around the office near boundary wall and tainted notes were recovered from inside the drainage.,

Patwari J.S. Verma (PW5) prepared spot-map (Ex.P8). He has admitted the fact that a drainage was constructed near the boundary wall.,

Hirasingh (PW7) was Block Education Officer. As per his statement, the Appellant was posted under him as a Clerk and was looking after the",

work of Establishment and after preparation of GPF bills, their encashment was his duty. In paragraph 4 of his cross-examination, this witness has",

stated that the work of the Appellant was only to forward the applications of the Applicants to the office of the Collector.,

S.R. Yuvane (PW8), S.D.O. (Police)/Deputy Superintendent of Police, Lokayukta is the witness who was also one of the members of the trap",

party. Inspector R.S. Dhruw (PW12) is the Investigating Officer. He investigated the offence in question.,

On minute examination of the evidence adduced by the prosecution, it is clear that at the relevant time, the Appellant was posted as a Clerk in the",

office of Block Education Officer, Farasgaon. Complainant Laxminath Netam (PW2) was Assistant Teacher at Primary School Gattipalna. Allegedly,",

the Appellant had demanded bribe of Rs.1,000/- from the Complainant for completing the work. As stated by the Complainant, on 5.9.1997, he along",

with tape recorder had gone to the house of the Appellant. At that time, the Appellant had made demand of bribe of Rs.1,000/-. He also recorded their",

conversation in the tape recorder and thereafter he went to the office of Lokayukta and submitted the tape recorder along with Rs.1,000/-. Panch",

witnesses were called and in their presence the conversation recorded in the tape recorder was listened. Thereafter, Constable Ramlal (PW10)",

prepared a script of the conversation recorded in the tape recorder and the said script was got typed by Ms. Satya Acharya. As also stated by Ramlal,",

he had written a script in his own hand writing and he had given the said handwritten script to Investigating Officer R.S. Dhruw (PW12), but the said",

hand written script has not been placed on record by the prosecution. Ms. Satya Acharya was not present in the room where Ramlal was writing the,

script.,

Thus, Ms. Acharya did not listen the conversation recorded in the tape recorder. The hand written script which was got typed has not been placed on",

record and the prosecution has not explained why the said hand written script was not placed on record. From the evidence, it is also clear that as",

stated by Abhimanyu (PW1) and Himalay (PW3), when Abhimanyu had reached inside the room of the Appellant, at that time, the Complainant was",

present there and he, in presence of this witness, had put currency notes of Rs.100/-on the table and when the Complainant began to go out of the",

room, the Appellant went behind the Complainant saying “Netam Netam†and as stated by Himalaya (PW3), the Appellant, saying at that time",

that how the notes were kept on the table, went behind the Complainant saying that “Netam Netam Ruk Jao Apna Paisa Le Jaoâ€​.",

With regard to recovery of the tainted money, Kishore (PW6), who first caught the hands of the Appellant, has admitted that when he caught the",

hands of the Appellant, at that time the currency notes were lying in the drainage. Panch witness B.K. Pandey (PW9) has also deposed that the",

currency notes were lying in the drainage from where he had taken out those notes. Another panch witness Dinesh Utpreti (PW4) has also admitted,

the fact that when he reached the spot, at that time the police officials were taking up the notes from inside the drainage. Complainant Laxminath",

Netam (PW2) has stated that notes were in the hand of the Appellant and the same were seized from the hand of the Appellant itself. Abhimanyu,

(PW1) has stated that the Appellant was caught along with the notes at the gate. As stated by him, the notes were lying near the gate and the",

Appelalnt was asked to take up those notes and the Appellant had taken up those notes on being asked. From the above, it is also clear that all the",

prosecution witnesses have given contradictory statements regarding place of finding of the tainted currency notes. Thus, it is doubtful that recovery",

of the currency notes were made from the possession of the Appellant.,

Regarding the turning of colour of the solution of sodium carbonate into pink after being washed the hands of the Appellant into the said solution, it is",

stated by Abhimanyu (PW1) that after putting the currency notes by the Complainant on the table, the Appellant had taken up those notes and went",

behind the Complainant asking him “Netam Netam Ruk Jao Apne Paise Le Jaoâ€. Abhimanyu (PW1), in paragraph 9, has also stated that the",

tainted notes were lying near the gate and the Appellant had taken up those notes on being asked by the police officials. Therefore, turning of the",

colour of solution of sodium carbonate in which the hands of the Appellant were washed is natural. Even if it is considered for the sake of argument,

that the Appellant had made any demand for illegal gratification, from the above evidence adduced by the prosecution it is not established beyond",

reasonable doubt that he accepted the illegal gratification. It is also not established that the tainted money was recovered from his hands. I find that,

demand and acceptance of bribe by the Appellant is doubtful. Mere recovery of tainted currency notes from the possession of the Appellant is not,

enough to prove the guilt.,

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 Act of 1988 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 4670 (SC) (P. Satyanarayana Murthy v. Dist. Inspector of Police), the Supreme Court observed thus:",

“21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(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 Sections 7 or 13 of the Act would not entail his conviction thereunder.â€​,

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 Gujaratâ€, 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 PWÂ2. Later on, PWÂ2 turned hostile and despite that trial",

Court convicted the accusedÂappellant on the basis of the evidence of panch witness (PWÂ1) and recovery of tainted currency notes from,

appellantÂaccused. The Apex Court, hence, hold that once the original complainant (PWÂ2) turned hostile and no other person, who had witnessed",

the transaction between the complainant and the accusedÂappellant, 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 accusedÂappellant did not establish commission of",

offence, and thereby, set aside the conviction of the accusedÂappellant. 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/Â. 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 complainant, 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 the by accusedÂdoctor, 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.â€​",

Therefore, in my considered opinion, the offence alleged against the Appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Act of",

1988 is not proved beyond reasonable doubt. Looking to the facts and circumstances of the case and the evidence adduced by the prosecution, the",

Appellant is entitled to get benefit of doubt.,

In the result, the appeal is allowed. The judgment under challenge is set aside. The Appellant is acquitted of the charges framed under Sections 7",

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

It is reported that the Appellant is on bail. His bail bonds shall continue for a further period of six months from today in terms of the provisions,

contained in Section 437A of the Code of Criminal Procedure.,

Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.,