Chattisgarh High Court
Rameshwar Prasad Ratre vs State Of C.G on 10 January, 2022
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 29.09.2021
Judgment Passed on : 10.01.2022
CRA No. 451 of 2002
Rameshwar Prasad Ratre, S/o late Shri Samyalal Ratre, aged
about 41 years, Suspended Sub-Inspector, R/o Police Line
Raipur, Tahsil and District Raipur (C.G.)
---- Appellant
Versus
State of Chhattisgarh, Through : Vishesh Police Sthapana
(Lokayukt), Aarakshi Kendra, Bhopal Ekai Raipur. (C.G.)
---- Respondent
For Appellant - Mr. R.S. Marhas and Mr. Akhtar Hussain, Advocates.
For Respondent - Mr. Anurag Verma, P.L.
Hon'ble Smt. Justice Rajani Dubey
C A V Order
This appeal arises out of the judgment of conviction and order of sentence dated 09.04.2002 passed by the Special Judge (Prevention of Corruption Act)/ 1 st Additional Sessions Judge, Raipur (C.G.) in Special Criminal Case No.07/1998 convicting the accused/appellant under Sections 7 and 13 (1)
(d) read with Section (13) (2) of Prevention of Corruption Act, 1982 (for short 'the P.C. Act') and sentencing him to undergo R.I. for one year with fine of Rs.1000/- and R.I. for one year with fine of Rs.1000/- respectively, plus default stipulation. 2
02. The prosecution case, in brief, is that a complaint (Ex.P/3) was submitted in the Vishesh Police Sthapana (Lokayukt), Raipur, by complainant Amiya Agnivanshi against Sub-Inspector Rameshwar Prasad Ratre (appellant), who was posted as Thana In-charge at Police Station Mouhadapara (C.G.), alleging therein that in the month of December, 1996, some dispute took place between him and security guard of Tar Office, thereafter, a complaint was lodged by Security Guard at Police Station Mouhadapara against the Complainant. The Complainant was called by the appellant who was Thana In-charge of Mouhadapara and demanded illegal gratification of Rs.10,000/- for releasing him on bail but the matter could settle for Rs.6000/- only. Thereafter, suddenly the complainant had to go Riwa in connection with urgent work. The appellant frequently demanded illegal gratification. It has been also alleged in the complaint that one day the appellant called one of the guarantor and asked him to give Rs.3000/-. When the complainant came from Riwa on 25.12.1997 then he came to know all the episode of the matter. For confirmation of the demand of bribe, the Complainant was given a tape-recorder vide Ex.P/4. The conversation was recorded in a micro tape-recorder vide Ex.P/2. Thereafter, the Complainant returned to the office of Lokayukt, Raipur with recorded conversation and there he again submitted a written complaint and a Preliminary Proceedings Panchnama was prepared vide Ex.P/5. The Complainant produced 30 currency notes each in the 3 denomination of Rs.100/-, total Rs.3,000/- for the trap proceeding. Their numbers were noted and they were smeared with phenolphthalein powder. A demonstration of the trap proceeding was given to the Complainant and the panch witnesses. A trap party proceeded towards the shop mentioned by the appellant. On 27.12.1997, appellant came in front of the Nagrik Sahkari Bank as per the predestined time and place and took the bribe amount of Rs.3,000/- from the appellant. After giving the tainted money to the appellant, the Complainant gave a signal to the trap party on which the trap party came there and hands of the appellant were caught. Seizure memo of tainted money was prepared vide Ex.P/6 and panchanama thereof was also prepared vide Ex.P/7. Arrest memo was prepared vide Ex.P/9. Transaction of conversation took place between the appellant and complainant was made vide Ex.P/10. Proceedings of Spot Panchanama was prepared vide Ex.P/12. The hands of the appellant was dipped into a solution of sodium carbonate on which the colour of the solution turned into pink. The recovered currency notes were also dipped into a solution of sodium carbonate on which colour of the solution turned into pink. Based upon the trap conducted by the police, statements of the witnesses were recorded under Section 161 of Cr.P.C. Spot map was prepared vide Ex.P/119. After the proceedings at the scene, the accused was arrested and released on bail. Numbered FIR was registered on 27.12.1997 vide Ex.P/24. Seized articles were sent for its chemical analysis to FSL, Sagar vide Ex.P./29. 4 Report thereof was obtained vide Ex.P/30, according to which, report of sodium carbonate and phenolphthalein found to be positive. On 04.03.1998, sanction for prosecution was granted in the matter vide Ex.P/20.
03. On completion of other formalities and investigation, a charge-sheet was filed against the appellant. After filing of the charge sheet, the trial Court has framed charges under Sections 7, 13(1) (d) read with Section (13) (2) of the P.C. Act. The prosecution in order to bring home the charge levelled against the accused/appellant examined as many as 10 witnesses in all. Statement of accused/appellant was recorded under Section 313 of Cr.P.C. in which he abjured his guilt and pleaded innocence and false implication. It was the defence of the appellant that Assistant Sub-Inspector Shri Dubey had registered the offence against Complainant. Complainant is of criminal nature and a case was registered against brother of Dilip Singh Rathore, Investigating Officer, for taking the jeep. Therefore, Shri Rathore, Investigating Officer of the case, had expressed displeasure with him (appellant) and threatened. Further defence of the appellant is that Dilip Singh Rathore's in-laws and Amiya Agnivanshi's house are in the same locality and both of them have made a case by collusion with each other preparing forged documents, and forging his signatures in the documents, whereas the same got checked by the handwriting expert. Further defence is that even in the copy of the challan received, the signature of the witnesses on many documents 5 were taken later. One defence witnesses namely R.C. Das (DW/1), Assistant Excise officer, was also examined to substantiate its case.
05. After hearing the parties, the Court below has convicted and sentenced the accused/appellant in the manner as described above.
06. Learned counsel for the appellant argued that learned trial Court while passing the impugned judgment did not consider the evidence of prosecution witnesses in its face value and erred in relying on them. The challan produced before the learned Court below is doubtful and the fabricated. Learned counsel further argued that in the present case, the signature of prosecution witnesses was taken by the police without any order of the Court and they filled up the blanks by way of putting signature of prosecution witnesses in the challan, which clearly shows that the challan which was produced before the learned trial Court is fabricated and defective. It has been also argued by learned counsel that the prosecution did not produce the tape-recorder in which conversation of the complainant and appellant had taken place. On 14.03.2002 the matter was fixed for further hearing on 18.03.2002 and the signature was taken in the order sheet and the case was adjured for evidence. On the same day i.e. on 14.03.2002, seized property i.e. currency notes and tape were produced before the Court and same was opened and sealed in absence of the appellant, which is contrary to the 6 settled law. The practiced adopted by the prosecution in this case raised serious doubt. It has been also argued that on 23.11.2000, the appellant had made an application under Section 340 of Cr.P.C. before the lower Court for examination of alleged signature and other defects of challan praying that it is matter of inquiry, therefore, an inquiry be made first and thereafter trial be initiated. The Court below also accepted it to be a matter of inquiry but on 22.02.2001 the lower Court rejected his application. It is argued that when an application is filed for inquiry, then inquiry ought to have been made first but instead of inquiry the learned Court below proceed further, which also raised doubt. It is next submitted that the important witness of the prosecution namely Subhash Das (PW/3), who was included in the trap party, has denied the whole transaction between complainant and the appellant, therefore, in absence of any clinching and incriminating material, the appellant cannot be held guilty of the offence. In support of his submission, learned counsel placed reliance on the decisions of Hon'ble Supreme Court in the matter of N. Vijayakumar V. State of Tamil Nadu1, C.M. Girish Babu V. CBI, Cochin, High Court of kerala2 and decisions of this High Court in the matter of Rohit Kumar Sahu V. State of Madhya Pradesh through Lokayukt3 and Shivprasad Kuldeep V. Pramod Kumar and others4.
07. Per contra, learned counsel for the State supporting the 1 (2021) 3 SCC 687 2 (2009) 3 SCC 779 3 CRA No.2618/1999 dated 09.06.2021 4 CRA No.829/2003 dated 09.06.2021 7 impugned judgment of conviction and order of sentence submits that the trial Court has not committed any illegality or infirmity while convicting the appellant and the same does not call for any interference by this Court.
08. I have heard learned counsel for the parties and perused the material available on record.
09. In a case of illegal gratification, there are three essential ingredients to constitute the offence. They are (i) demand, (ii) acceptance and (ii) recovery.
10. In the case in hand, it is not disputed that at the relevant time the appellant was posted as Sub Inspector at Police Station Mouhadapar. Complainant Amiya Agnivanshi was not examined before the learned trial court. His brother Pavitra Agnivanshi (PW/9) has been examined who has stated in his examination that in the year 1999 his brother Amiya Agnivanshi left for heavenly abode. In the year 1997, his brother was called by police station Moudahapara. This fact was informed to this witness by his brother Amiya Agnivanshi. Thereafter, he went to the police station where he was informed by S.H.O. Dubey that his brother was taken to D.K. Hospital for medical examination. This witness has also stated that S.H.O. Dubey had told that his brother had a fight with the watchman of taar ghar. It is worth mentioning here that this witness has not supported the case of the prosecution and denied all suggestions of prosecution.
11. Jai Ram Bhoi (PW/1) is the Panch Witness. This witness 8 has stated about the initial proceeding carried out by them vide Ex.P/5 as to how they prepared number of currency notes etc. This witness, in para 11 of his cross-examination, has stated that he along with employees of Lokayukt office caught the appellant. The appellant dropped the money on the ground which was kept in his hand. The money dropped on the ground was taken by this witness and complainant Amiya Agnivanshi. Notes fell in the drain were also collected by them. This witness, in para 32 of his cross-examination, has admitted that no person can be present at two places at the same time. This witness has admitted that his presence shown in Ex.P/11 and P/12 at different places at the same time is not correct. Further, in para 33, this witness has admitted that he cannot say if the sentence marked as B to B "Vsªi ds le; fd;k x;k" was added to the last page of Ex.P/12 after his signature. Perusal of Ex.P/12 would show that the particular part which is marked as 'B to B' was added separately.
12. Another Panch witness namely R. Das has not supported the case of the prosecution as he entered as defence witness (DW/1). This witness has stated in para 2 that appellant was called to co-operative bank but he did not meet there. Thereafter, they went near Raj Kumar College where also he was not there. At about 9.00 pm, they reached near Phool Chowk in search of the appellant and thereafter, the time was fixed with the appellant by the complainant over telephone. This witness has also stated that between 9.00-9.30 pm, they reached near Phool Chowk and stood scattered. As there was 9 dark, therefore, only packing was done on the spot and writing work was executed at Lokayukt Office. This witness has also stated that his signature was obtained in office. This witness, in para 7 of his evidence, has stated that they were directed to watch transaction and hear conversation but as he was standing 50 feet away at the time of trap and how he could see and here the same ? This witness has also stated that he had seen the conversation between complainant Amiya Agnivanshi and the appellant at the time of incident but did not see Amiya Agnivanshi taking money out of his pocket and giving it to the appellant.
13. Hon'ble Supreme Court in the matter of C.M. Girish Babu V. CBI, Chchin, High Court of Kerala), reported in (2009) 3 SCC 779, held as under:-
"18. In Suraj Mal V. State (Delhi Admn.), (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) 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. The mere recovery by itself cannot prove th charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."
14. Again recently Hon'ble Supreme Court in the matter of N. Vijayakumar V. State of Tamil Nadu reported in (2021) 3 SCC 687 reiterating the judgment of C.M. Girish (supra), it was held as under:-
10
"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu V. CBI, (2009) 3 SCC 779 and in B. Jayaraj V. State of A.P., (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Section 7, 13(1)(d) (I) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court."
"27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj ((2014) 13 SCC 55 read as under :
(SCC pp. 58-59) "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this court. By way of 11 illustration, reference may be made to the decision in C.M. Sharma V. State of A.P. (2010) 15 SCC 1 :
(2013) 2 SCC (Cri) 89 and C.M. Girish Babu V. CBI (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1.
8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the coomplainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial Court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as 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 12 pecuniary advantage cannot be held to be established.
9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
The abovesaid view taken by this Court fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial Court is a "possible view" as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once conviction is recorded under the provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the 13 same time it is also to be noted that whether the view taken by the trial Court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.
15. In the instant case, complainant Amiya Agnivanshi died during the pendency of the case and could not appear before the learned trial Court for his evidence. From perusal of the statements of panch witness Jai Ram Bhoi (PW/1), Pavitra Agnivanshi (PW/9), brother of complainant Amiya Agnivanshi, and Investigating Officer Dilip Singh Rathore (PW/10), it is clear that PW/1, who was involved in trap proceeding, has admitted that in several papers some lines were added after his signature and PW/9 has not stated anything specific which could bring home the guilt of the appellant beyond shadow of doubt, in fact, this witness has not supported the case of the prosecution. PW/10, in para 15, has stated that he recorded the statement of panch witnesses as per their instructions and he neither added nor left anything from his side, but, as discussed above, it is clear from evidence of PW/1 that in several papers including his statement some lines were added after his signature. There is contradiction in the statement of PW/1 and PW/10. That apart, one panch witness R.C. Das also not supported the case of the prosecution and he appeared as defence witness as DW/1. There are several irregularities from the prosecution side which have not been explained by it.
16. In view of the aforesaid discussion and in the light of 14 view taken by the Supreme Court in the matter of C.S. Girish (supra) and N. Vijayakumar (supra), it is clear that the prosecution has failed to prove its case of demand and acceptance of bribe money by the appellant. Therefore, only on the basis of recovery of the tainted money, conviction of the appellant is not sustainable. The finding of the trial Court is not in accordance with the evidence available on record as also not in accordance with law. The appellant is entitled to receive the benefit of doubt.
17. Consequently, the appeal is allowed. The judgment of the trial Court is set aside. The appellant is acquitted of the charges framed against him.
Sd/-
(Rajani Dubey) JUDGE PKD