Sunder Singh Rathore vs State of Madhya Pradesh (Now State of Chhattisgarh)

Pritinker Diwaker, J.—The appellant has preferred this appeal against the judgment and order dated 31.3.1998 passed by Special Judge, Raipur in Special Case No. 44/1991 convicting the accused/appellant under Sections 161 IPC & 5(1)(d)/5(2) of Prevention of Corruption Act (for short the "Act") and sentencing him to undergo rigorous imprisonment for one year and fine of Rs. 1,000, in default of payment of fine to further undergo SI for three months on each count. Facts of the case in brief are that at the relevant time accused/appellant was working as Patwari of Patwari Halka No. 3, Revenue Circle Gourela, Tahsil Pendra Road, Distt. Bilaspur. On 27.10.1987, a written complaint (Ex.P3) was made by complainant Madan Singh Rathor (PW6) to the Vigilance Cell, Commissioner Office, Bilaspur alleging that accused/appellant was demanding Rs. 300 from him for providing copy of revenue records with regard to share of his uncle Paremu @ Parem Singh Rathor. It is alleged by the complainant that as he did not want to give the said bribe amount to the accused/ appellant and wanted an action against him, a complaint was made by him. After getting the aforesaid report, preliminary panchnama (Ex.P4) was prepared on 27.10.1987 itself in presence of independent witnesses Sharad Tiwari (PW4) and D.S. Markam not examined Trap party headed by S.K. Verma DSP was constituted test was demonstrated by applying phenolphthalein powder on the 3 currency notes of 100 denomination said currency notes were given to the complain; ant and after instructions being given to him. The trap party went to the house of accused appellant. As the accused appellant was not at his residence on 27.10.1987 the trap party returned to PWD rest house at Pendra Road stayed there in the night and next day. On 18.10.1987 again it went to the house of accused appellant. It is alleged that at about 11 a.m. accused appellant came to his house and was sitting with 2 other persons namely Gangaram Patwari (PW5) and Ugra Kumar Singh (DW2) and at that time complainant went to the house of accused appellant and immediately after 15 minutes he came out of the house of accused appellant gave a signal to the trap party as a result of which the trap party raided the house of accused appellant and during search of the accused appellants the trap party could not find anything and then they made enquiry from the complainant and in turn it was informed by the complainant that the accused appellant had kept the money under the blanket, the said amount was collected vide Ex. P5, thereafter the trap panchnama (Ex P 8) was prepared. Phenolphthalein test was conducted which proved positive by FSL report (Ex P20) FIR (Ex/P 21) was registered on 9.11.1987 and after obtaining sanction (Ex.P1) challan was filed on 27.8.1990 u/s 161 IPC and 5(1)(d)/5(2) of Prevention of Corruption Act Dehatinalishi Ex P 17 was recorded.

In support of his case prosecution has examined as many as 10 witnesses. Statement of accused appellant was also recorded u/s 313 of the CrPC in which he contend the allegations levelled against him and pleaded his innocence and false implication in the case. Defence of the accused appellant is that he has been falsely implicated and on the date of incident no amount whatsoever was received by him from the complainant in support of his case the accused/appellant has examined one Ugra Kumar Singh (DW1).

After hearing the parties, the court below convicted and sentenced the accused/ appellant as mentioned in paragraph 1 of the judgment.

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

Counsel for the accused/appellant submits that no demand of bribe was ever made by the accused/appellant as is alleged by the prosecution. He submits that the prosecution has utterly failed to prove the demand and acceptance of bribe amount by the accused/ appellant because the complainant himself has deposed in his court statement that demand whatsoever was made by the accused/appellant and that he never gave any bribe amount to accused/appellant. He submits that the tainted money was recovered from under the blanket lying on the bed in a separate room and the complainant himself has categorically stated that he had kept the said amount near the blanket as per the direction given to him by his counsel. It has been argued that the prosecution has failed to prove the demand of illegal gratification which is sine qua non for convicting the accused/appellant under this Special provision and that in absence of proof for the same presumption cannot be drawn against the accused/appellant. He further submits that even it presumption is drawn as per Section 20 of the Act, defence has established its case beyond preponderance of probability that the appellant has not accepted any illegal gratification from the complainant.

Counsel for the appellant further submits that complainant has not supported the case of the prosecution and has been declared hostile. It has been further argued that as the amount was never received by the accused/appellant nor he has touched the same, the FSL report becomes doubtful as none of the witnesses has stated that the amount was received or touched by accused/ appellant. In support of his submission he places reliance on the decisions of the Hon''ble Supreme Court in the matter of Subhash Parbat Sonware v. State of Gujarat 2002 (5) SCC 8.; Commissioner of Customs, Mumbai Vs. J.D. Orgochem Limited, V. Venkatasubba Rao v. State representated by Inspector of Police, A.P. 2006 (13) SCC 305. and Sita Ram v. State of Rajasthan. 1975 SCC 2227.

On the other hand while supporting the impugned judgment it has been argued by the State counsel that as the amount has been recovered from the house of accused appellant and phenolphthalein test has proved positive presumption is against the accused appellant he further submits that accused appellant has failed to give any explanation as to how the amount was received from his house, findings of the court below convicting and sentencing him under this special provision are just and proper and need to interference in this appeal.

Head counsel for the parties and perused the material on record.

D.N. Bille (PW1) is the witness of sanction to prosecute accused appellant and he had duly proved the sanction order (Ex P1) Krishna Pal Singh (PW2) at the relevant time was a driver of jeep which was used by the trap party in reaching the house of accused appellant. This witness has been cited as a witness of trap party and has also proved the phenolphthalein test however in para 6 of his cross-examination he has admitted the fact that he was merely a driver of the vehicle and had not signed any document S.P. Namdev (PW3) was working as Tahsildar at the relevant time and has passed the order for providing copies of the revenue record on the application made by the complainant and has proved the application of the complainant as Ex P2 Sharad Tiwari (PW4) was working as Probationer Forest Officer and is a witness of trap while supporting the case of prosecution has stated that under the instruction of SDO he had gone to the office of Commissioner and met the DSP Markam. He has further stated that he was called on the next day to accompany the trap party and accordingly on the very next day, he accompanied the trap party to Gourella, in his presence pre-trap panchnama (Ex.P4) was made, phenolphthalein test was demonstrated and in his presence complainant gave his application (Ex.P3) to DSP Markam. He has further stated that it is the complainant who entered the house of accused/appellant and 10-15 minutes thereafter he came out from the house of accused/appellant, gave a signal to the trap party and when the trap party entered the house of accused/appellant he was sitting on the chair and was working along with two other persons, out of them one was Patwari and the other was Revenue Inspector. He has stated that as per the instruction of DSP Verma, he made the personal search of accused/appellant but could not get the money, then complainant came inside the room and informed that he had kept the money in other room under the blanket. Thereafter search of the room was made and 3 currency notes of 100 denomination were seized. He has stated that phenolphthalein test was conducted which proved positive and thereafter other formalities were completed. In paragraph 12, he has categorically stated that he had not seen accused/appellant demanding money from complainant nor he had seen complainant giving bribe to accused/appellant He has further stated that even after seeing the trap party entering his house, accused/appellant was performing his work imperturbably and then DSP introduced himself to the accused/appellant. Gangaram Bharadwaj (PW9) is the witness who prepared the spot map has categorically stated that at the time of incident, he was sitting in the house of accused/appellant along with Revenue Inspector Pandey and they were preparing the statement. He has further stated that during the said period one farmer had entered his house and demanded certain documents but accused/appellant asked him to come after some time by saying that he was busy in some other work and thereafter the said person entered the room of accused/appellant on the pretext of easing himself and came out from the said room after about 5 minutes and then the member of trap party reached there. He has further stated that when accused/appellant was searched nothing was found in his possession and even when his hands were washed no color whatsoever was seen. At this stage this witness was declared hostile. Madan Singh (PW6) complainant, in his court statement has stated that at the relevant time, accused/appellant was working as Patwari of the village and he was in need of certain copies of revenue records which were to be collected from accused/appellant. He has stated that when he had gone to the house of accused/appellant he was not there and thereafter he met with Ramvishal Advocate, at Gourela and then the said lawyer informed him that he would get the copies of the documents. He has further stated that on the next day, he met the said lawyer who advised him not to go to accused/appellant and took him to his house by saying that he will get the copy of relevant documents and then asked him to put his thumb impression on some documents and thereafter said Advocate brought him to Bilaspur and at Bilaspur he took him to some office and had a talk with clerks. He has stated that the persons who were there in the said office had asked him as to whether he had received the documents or not on which he informed them that he had not received any such document. He has stated that on paper, his thumb impression was obtained and men he returned to his house. He has further stated that his counsel had further instructed him to remain in the rest house by saying that office people would come there. He has further stated that if the demand of Rs-300 would be made in the rest house, the same is to be given to the officers and accordingly he gave Rs. 300 to them. He has stated that he entered the house of accused/appellant and made a request for the document by saying that he will also give him due remuneration but accused/appellant scolded him and asked him to wait for the copy. He has further stated that thereafter he entered the other room of the house of accused/ appellant kept the amount of Rs. 300 under the blanket as he was instructed by his counsel to do. He has stated that thereafter trap party came there and he informed the trap party that accused/appellant has not accepted any amount from him and he has kept the same on the cot.

At this stage, this witness has also been declared hostile. Krishna Shrivastava (PW7) was the SDO (Revenue) at the relevant time, has stated that he was asked certain information from the office of Lokayukta vide Ex. P12 and pursuant to which he gave his reply Ex. P13 on 1.11.198,7. He has further stated that he also supplied appointment order of accused/appellant vide Ex. P14. He has stated that a complaint was made by accused/appellant to the Commissioner, Raipur by saying that he has been falsely implicated and the said complaint was enquired by him and his report is Ex.D1. As per Ex.D 1, an attempt has been made by complainant to falsely implicate accused/appellant in a bribe case. Ram Das (PW8) is father of complainant has not supported the prosecution case and has been declared hostile. Madhur Singh (PW9) is a villager has also not supported the prosecution case and has been declared hostile. S.K. Verma (PW10) is the Investigating Officer has duly supported the prosecution case.

Ugra Kumar Singh (DW1), in his court statement has stated that complainant had entered the house of accused/appellant and demanded certain documents however, accused/ appellant did not give the same immediately because he was doing some official work. He has stated that thereafter complainant asked the accused/appellant that he was in hurry and would pay money if needed. He has stated that no amount whatsoever was given in his presence and the appellant had specifically told the complainant that if he was a rich man then he should wait for sometime, I would finish my official work and then will do other work. He has further stated that thereafter complainant asked him for a place where he could go to ease himself and he entered the house of accused/appellant and came out after about five minutes. He has further stated that after sometime, trap party reached there, introduced themselves, made personal search of accused/appellant but nothing was found from him and when his hands were washed, color of the solution did not change. He has stated that trap party thereafter scolded the complainant and then complainant informed them that he kept the money under the blanket and same was recovered from under the blanket.

After hearing counsel for the parties and perusing the material available on record including the evidence, of witnesses, It is apparent that the prosecution has not been able to prove the demand and acceptance of illegal gratification by accused/appellant. Even the complainant has not supported the prosecution case and has been declared hostile. He has categorically stated that no demand whatsoever was made by accused/ appellant and it is his counsel who obtained his thumb impression on some blank papers by giving assurance that he would get the copies of the revenue documents. He has stated that when he entered the house of accused/appellant two persons were also sitting with him and he did not pay any amount to accused/appellant but had kept the same in other room under the blanket. The persons who were sitting along with accused/ appellant in his house have also categorically deposed that no amount whatsoever was given by the complainant to the accused/appellant nor the same was accepted at any stage. The witnesses have further stated that when the complainant had offered some remuneration, the same was refused by accused/appellant by saying that he would first complete his official work and then would do the work of the complainant. Even Sharad Tiwari (PW4) independent witness has categorically stated that neither he saw the accused/appellant demanding any bribe nor the complainant offering the same to the accused/ appellant. From the evidence it is apparent that the amount was seized from other room of the house of accused/appellant when the same was kept under the blanket. Thus, if the evidence of complainant (PW6) Madan Singh and the witnesses namely Sharad Tiwari (PW4), Ganga Ram (PW5) and Ugra Kumar Singh (DW1) is seen together, same makes it clear that the prosecution has utterly failed to prove the demand of bribe and acceptance by the accused/appellant. In the matter of Banarsi Dass Vs. State of Haryana, it has been held by the Apex Court that in absence of demand and acceptance of illegal gratification being proved by the prosecution, merely on the basis of recovery of tainted amount from him, accused cannot be convicted under the special provision. The case in hand appears to be better for accused/appellant because the money was never recovered from him and the same was recovered from the other room where it was kept under the blanket. This apart, it is also apparent from the record that it is the complainant who offered the remuneration to accused/appellant if his work is completed immediately, but the same was refused by the accused/appellant by saying that he would complete the official work and then would do the work of complainant. Thus in these circumstances and keeping in mind that the complainant himself has not supported the case of the prosecution and later on declared hostile, it cannot be said that the prosecution has proved its case-beyond reasonable doubt and that being so the appellant is entitled to receive the benefit of doubt. Thus, the Court below has gone wrong in appreciation of the evidence of the witnesses and recording its findings by way of judgment impugned based thereon, which cannot be sustained in the eye of law. Consequently, the appeal is allowed. Judgment impugned is set aside. Accused/ appellant is acquitted of the charge levelled against him. He is already on bail and therefore his bail bonds stand discharged. Fine amount if deposited by the appellant be refunded to him.