Shashikant Sharma vs State Of Chhattisgarh

The appeal is directed against judgment dated 03.12.2003 passed by First Additional Sessions Judge/Special Judge, under the Prevention of

Corruption of Act, 1988 (for short 'the Act 1988'), Raipur (Chhattisgarh) in Special Session Trial No. 08/2002 wherein the said Court convicted the

appellant for commission of offence under Section 7 and 13(1)(d) read with Section 13(2) of the Act, 1988 and sentenced to undergo rigorous

imprisonment for 01 year and to pay fine of Rs.500/- and RI for 04 years and to pay fine of Rs.1000/- respectively with default stipulations.

In the present case, name of the complainant is Ashwani Maheshwar (PW-6). As per the version of the prosecution, complainant Ashwani

Maheshwar is the resident of village Sindhora and due to necessity of mark sheet, he had given one application to the office of the District Education

Officer on 15.10.2001 and deposited fees as prescribed for said certificate. The appellant was posted as Asst. Grade-III in the office of District

Education Officer, Mahasamund and he demanded Rs.500/- for issuance of certificate as illegal gratification. The matter was reported to the

Superintendent of Lokayukta and after preliminary enquiry one trap party was arranged and the appellant was caught with two currency notes of 100

denomination. The matter was investigated and the appellant was charge sheeted and after completion of the trial, he was convicted as mentioned

above.

Learned counsel for the appellant submits as under:

(i) The complainant himself has not deposed that the appellant demanded any amount from him.

(ii) As per the version of Ashwani Maheshwar (PW-6), one peon namely Lakhan demanded Rs.500/- from him. From the evidence of th complainant

himself, demand of illegal gratification is not established.

(iii) From the evidence of RK Shivani (PW-7) (para 3) and statement of Navin Shankar Choubey (PW-9) (para 5), both hands of the appellant were

caught during trap by one Dy.SP Rajput and one Inspector Khare and both officers have not washed their hands before holding the hands of the

appellant, therefore, there is every possibility that phenolphthalein powder may transfer from their hands to the hands of the appellant, therefore,

sodium carbonate solution test with the appellant, i.e. when his hands were washed with the Sodium Carbonate Solution it turned pink, has no bearing

with acceptance of the amount of illegal gratification.

(iv) As the demand and acceptance is not proved, presumption under Section 20 of the Act, 1988 is not acceptable in the present case, therefore,

finding of conviction recorded by the trial Court is not sustainable.

On the other hand, learned counsel for the State supporting the impugned judgment would submit that the finding of the trial Court is based on

proper marshaling of the evidence and the same is not liable to be interfered with while invoking the jurisdiction of the appeal.

I have heard learned counsel for the parties and perused the judgment impugned.

The first question for consideration before this Court is whether the appellant demanded illegal gratification to the tune of Rs.500/-from complainant

Ashwani Maheshwar (PW-6). From the evidence of Ashwani Maheshwar itself it is clear that he met with the peon of the Office of the District

Education Officer namely Lakhan Lal Sahu and Lakhan Lal Sahu demanded Rs.500/- for issuance of required certificates. This witness further

deposed (para 4) that demand was made by Peon Lakhan Lal Sahu. From his entire evidence, it is not established that any demand was made by the

appellant. If the demand is made by Peon Lakhan Lal, it cannot be said that it was the demand of the appellant. Therefore, it is not established that the

demand was made by the appellant.

Now the question for consideration before this Court is whether the appellant received any amount knowing it to be illegal gratification. RK Shivani

(PW-7) and Navin Shankar Choubey (PW-9) deposed before the trial Court that two persons caught the hands of the appellant and thereafter the

hands of the appellant were dipped in the Sodium Carbonate solution which tuned pink in colour. There is nothing on record that two persons have

washed their hands before holding the hands of the appellant. Therefore, possibility cannot be ruled out that Phenolphthalein powder may transmitted

from their hands to the hands of the appellant.

Now the question for consideration of this Court is whether the appellant can be convicted for the offence under Section 7 and 13(1)(d) read with

Section 13(2) of the Act, 1988 if the demand on his part is not established. In the matter of Krishan Chander vs. State of Delhi, reported in (2016) 3

SCC 108 Hon'ble the Supreme Court held as under:

“35. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under

Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj (supra),

A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant.

In P. Satyanarayana Murthy (supra), it was held by this Court as under:

“21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-à -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 pre- requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj

in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence

under Sections 7 as well as 13(1)(d)(i)&(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 Section 13(1)(d) (i)&(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 emphasized, 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)&(ii) of the Act and in absence

thereof, unmistakably the charge therefore, 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€​

As demand by the appellant is not established and further acceptance of amount knowing it to be illegal gratification is not proved, Section 20 of the

Act, 1988, has no application in the present case. On overall assessment of the evidence, finding of conviction against the appellant under Section 13

(1)(d) read with Section 13(2) of the Act, 1988 is not sustainable.

Accordingly, the appeal is allowed. Conviction and sentence imposed by the trial court is hereby set aside. The appellant is acquitted of the

charges framed against him. The appellant is reported to be on bail. His bail bonds shall continue for further period of six months from today in view of

Section 437-A of Cr.P.C.