Chattisgarh High Court
Shani Ram Bhagat vs State Of Chhattisgarh on 4 October, 2017
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 851 of 2003
• Shani Ram Bhagat, aged about 40 years, son of late Sukaru
Ram, Industrial Inspector, District Industries Centre, Raipur
Tahsil and District Raipur Chhattisgarh --- Appellant
Versus
• State of Chhattisgarh, through the Police Station Anti
Corruption Department Unit at Raipur (C.G). ---
Respondent
For the Appellant : Mr. J.D. Vajpai, Advocate. For the State : Mr. Anupam Dubey, Dy. Govt. Adv.
Hon'ble Shri Justice Goutam Bhaduri Judgment/Order on Board 04 .10.2017
1. This appeal is against the Judgment/order dated 04th August, 2003 passed by the Court of First Additional Sessions Judge- cum-Special Judge, Raipur, in Sessions Trial No. 8 of 1998 whereby the appellant was convicted under sections 7 & 13(1)(d) read with section 13(2) of the Prevention of Corruption Act and sentenced to undergo R.I. for 2 years & R.I., for 5 years respectively. He was further directed to pay a fine of Rs.2000/- u/s 7 of the PC Act, in absence of payment of fine, to further undergo additional R.I., for 3 months and also directed to pay a fine of Rs.3000/- u/s 13(1)(d) read with Section 13(2) of th PC Act and in absence of payment of fine, to further undergo additional R.I., for 6 months.
2. The prosecution story in brief is that in the year 1997, the appellant accused was posted as Industrial Inspector at 2 District Industries Center, Raipur. Certain loans were being granted under the Prime Minister's Employment Scheme (iz/kkuea=h jkstxkj ;kstuk) wherein the complainant Ram Swaroop Verma was one of the applicants and his application was to be routed through the said office wherein appellant was In- charge. The accused appellant was looking after the work of processing and forwarding different loan applications and since process of sanction of loan of complainant for purchase of Auto Rickshaw was not being forwarded, the victim met the accused several times in the office. However, on some pretext or the other, the loan application was not forwarded to be approved. Eventually a demand of Rs.7500/- was made by the appellant on 11.11.1997. Since the complainant was not willing to offer the bribe, a written complaint was made by him on 11.11.1997 to the Special Police Establishment of Lok Ayukta (ACB). Having received the complaint, a Panchnama was prepared and a micro tape- recorder was given to the complainant to record the conversation. Thereafter, the complainant again met the appellant in the Collectorate premises and recorded conversation in between them wherein the demand for undue gratification was made. Consequently on the basis of written complaint filed by the victim, a trap team was formed by the Special Establishment and two of the independent witnesses namely Hulsa Ram and Vinod Kumar were summoned.
3. The complainant was asked to give currency notes and all the numbers of currency notes were noted down and a preliminary Panchnama was prepared. Subsequently 3 phenolphthalein powder was applied over the currency notes and it was given to the complainant. He was further directed to give amount on demand to the accused and thereafter to give signal. The procedure of phenolphthalein and sodium carbonate was explained to the effect that it changes colour when the sodium carbonate solution comes in contact. The tape-recorder was also given for recording the conversation and the applicant was asked to deliver the chemically treated currency notes on demand and was sent for the purpose, thereafter the trap team followed the complainant to the spot. It is alleged that the trap team waited and after some time, the accused reached in front of a Bank at colloctorate premises and the appellant asked the complainant to arrange the envelope and one envelope was procured by the complainant and the currency notes were placed inside the envelope. Subsequently the notes were given to the appellant by the complainant Ramswaroop Verma which was kept by the appellant in his pocket of full pant. After the amount was given to the appellant, the trap team rushed to the spot and trapped him. His hands were washed in solution of sodium carbonate and the serial numbers of currency notes were tallied with numbers mentioned in preliminary Panchnama which was found to be the same which was prepared at the time of the report. The clothes of the accused i.e., full pant were also washed in chemically treated water i.e. solution of sodium carbonate and when the articles and hands came in contact with such solution it changed its colour. Thereafter, necessary seizures were made. Subsequently after recording the statements of 4 witnesses, the charge sheet was filed against the applicant.
4. During the trial, the charges were framed u/ss 7 & 13(1)(d) read with section 13(2) of the Prevention of Corruption Act against the accused. During the course of trial, the appellant abjured the guilt and claimed to be tried.
5. The prosecution on their behalf had examined as many as 12 witnesses. The accused appellant in his statement u/s 313 Cr.P.C., has stated that he has been falsely implicated and denied to have made any demand of bribe. The trial Court after evaluating the entire evidence on record convicted and sentenced the appellant as aforesaid. Hence this appeal.
6. Shri J.D. Bajpai, learned counsel appearing for the appellant would submit that reading the statement of P.W.10 (who is the complainant) would show that no demand was ever made by the appellant. It is contended that P.W.10 in his statement itself has categorically stated that the demand was not made, but he only promised to help the victim which the victim has admitted and even when the money was tendered to the appellant, he refused to take the same. He further submits that according to the prosecution witness (P.W.6), the money was not seized in person from the appellant/accused as it was scattered on the ground which would show that actually the offer and acceptance of money were not made. He further submits that when the complainant tried to insert the money kept in the envelope by force into the full pant the appellant did not accept the same and immediately gave a jerk, consequently the envelope was torn and it fell down on the ground which would show that the appellant accused never demanded or 5 accepted any amount. He further submits that though the prosecution has relied upon the transcription of the telephone conversation but nothing is on record to prove that conversation was made between the accused and complainant and rather it would show that the audio cassette which was produced by the prosecution does not contain his voice. It is contended that even the complainant did not recognize conversation recorded by him therein, which itself creates a doubt as to whose voice it was actually recorded. He further submits that if the voice is not proved to be that of accused appellant, then the transcription of the nature cannot be helpful to the prosecution. He further placed his reliance in AIR 2008 SC 106 K. Subba Reddy Vs. State of Andhra Pradesh and would submit that in order to sustain conviction u/s 7 of the PC Act, the demand and acceptance of illegal gratification have to be proved beyond reasonable doubt. He further submits that under the circumstances, the appellant deserves to be acquitted.
7. Per contra, learned State Counsel opposes the argument and would submit that the Panchnama of giving the tape- recorder has been proved by P.W.6 and the transcription along-with it has also been proved which would show that the demand was made. Learned State Counsel further submits that in the preliminary Panchnama, the description of the serial number of currency notes were tallied with the same currency notes which were seized from the accused appellant, therefore, no ambiguity exists and even if the contention of defence is accepted that the money was taken for someone-else, in such eventuality also, he is liable to be 6 convicted u/s 13(1) of the PC Act, 1988. He further submits that the order passed by the trial Court is well merited which do not call for any interference by this Court.
8. Perused the records of the court below and the respective statements and documents of the witnesses. The Supreme Court in the recent judgment reported in (2017) 8 SCC 136 Mukhtiar Singh (since deceased) through his Legal Representative Vs. State of Punjab has laid down that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors proof of demand ipso facto would thus not be sufficient to bring home charge under the aforesaid two sections. As a corollary, failure of prosecution to prove demand for illegal gratification would be fatal and mere recovery of amount from person accused of offence under sections 7 or 13, would not entail his conviction thereunder. In the said decision, the court reiterated the principles laid down in (2009) 6 SCC 587 A. Subair v. State of Kerala that the prosecution in order to prove charge under the provisions of sections 7 & 13 of the PC Act has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala v. C.P. Rao (2011) 6 SCC 450 that mere recovery by itself of the amount said to have been paid by way of illegal gratification 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 7 be bribe, conviction cannot be sustained.
9. Further in case of Mukhtiar Singh (2017) 8 SCC 136 (Supra) at para 14, the principles emphasized in P. Satyanarayana Murthy Vs. State of A.P. (2015) 10 SCC 152 have again been reiterated which reads as under:
"23. The proof of demand of illegal gratification, thus, is 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 Sections 7 or 13 of the Act would not entail his conviction thereunder."
(Emphasis supplied)
10. In view of the aforesaid principles, the evidence which is on record is being appreciated in the instant case. The complainant in this case is examined as P.W.10. He has stated that in order to avail loan for auto rickshaw, he had submitted an application in the Office of District Industries, Raipur. Thereafter, after giving such application i.e., after one-and-half months, he went to the Bank of Maharashtra. Then he was asked to come after some time. He further stated that during his visit to Bank of Maharashtra, one of the Peons had advised him that without money, no finance can be made. Thereafter, he went along-with his friends Umesh and Mukesh Dewangan to the appellant. He further 8 stated that the appellant at that time told the complainant to pay the money directly to the Bank officials. It is stated that the complainant on such advice told the accused that the bank officials are not accepting the amount. Thereafter, he requested the appellant to pass on money to the bank people on his behalf. The appellant acceded to the said request and stated that he would pay the amount to the Bank Manager.
11. Having advised the same, the complainant brought money of Rs.7500/-. In the meanwhile, the complaints were made to Anti Corruption Bureau and necessary report and Panchnama were prepared. Thereafter, during such course of trap, when the money was tendered, the complainant was advised to place the money in envelope by the accused and when he wanted to give it to the accused who was sitting on his motorcycle, the accused refused to accept the money whereby it fell down on the ground. At that moment, the complainant gave signal and the police officers came and caught hold of the accused. In the examination-in-chief, he further stated that in the office of Lokayukta he went to one Rajput and had stated that the Bank people were demanding money. Thereafter, he was given a Tape-recorder and asked to go to the appellant Shaniram Bhagat and for this a Panchnama was prepared. It was further stated that when the complainant went to Shaniram Bhagat with tape, conversation of demand of Rs. 7500/- was recorded. The complainant has not categorically stated that the demand of Rs. 7500/- was made by the accused for himself as it would be relevant to the statement made earlier that the accused 9 only agreed to help the complainant to pass on the money to bank officials.
12. P.W.6 Jitendra who is stenographer in the office of Lok Ayukta has proved the Panchnama Ex.P-18 of handing over of tape which was initially given to the complainant on 11.11.1997. He has stated that on 15.11.1997, the complainant came back with the tape-recorder and handed over it to the office. Thereafter, he heard the conversation on it and it was disclosed that in such tape-recorder, the voice of the accused appellant was recorded. The transcription was reduced into writing vide Ex.P-6. As against about the date of handing over the initial tape, the complainant P.W.10 at para 26 stated that the Tape-recorder which was given to one Sukhendra Sonkar on 11 th was returned to the office of ACB after 2-3 days.
13. Whereas the complainant at para 10 of examination-in-chief has stated that after initial recording of conversation while it was handed over at the office of Lokayukta it was heard but conversation was not clear and audible. It is further stated that the transcription of it was not reduced into writing. So a contradiction about reducing the transcription into writing comes in examination-in-chief of complainant at paras 6 &
10. Further the contradiction comes in the statements of P.W.6 and P.W.10 about the handing over of the tape recorder as P.W.6 says that it was handed over on 15th whereas the complainant has stated that it was handed over back after 2-3 days by Sukhendra Sonkar. Apart from the complainant, the witness P.W. 5 who is an independent prosecution witness has stated that on hearing the tape- 10 recorder, it was not clear. Therefore, the transcription which was recorded by Ex.P-6 about pre-trap conversation, the clarity of voice has been put into doubt by the prosecution witness PW-5, and the complainant PW-10 itself.
14. The aforesaid facts are further fortified by the fact that the complainant PW-10 at para 10 had stated that the envelop which was confronted to him with cassette do not contain his signature. Complainant has further denied that both the envelopes (Article A-1) and the cassette (Article A-2) which were produced before the court do not contain his signatures. Therefore, the production of cassette itself is placed in doubt. The witness has further contended at para 11 that the Lokayukta people had identified the voice in cassette that of Sukhendra Sonkar and the accused. The complainant had stated that he had heard the cassette but the voice was not clear and he had not identified the respective voices.
15. Therefore, as there is discrepancy about the time of handing over the possession of tape-recorder along with the fact that the voice and conversation which was transcribed by Ex.P-6, has not been proved beyond reasonable doubt, this Court is of the opinion that the prosecution has failed to conclusively prove the part of subject conversation and it was the voice of the accused who was in conversation with the complainant.
16. Now with respect to the demand of amount, the initial report is marked as Ex.P-31. A perusal of Ex.P-31 would show that it was the initial report made on 11.11.1997 to the Superintendent of Police, Office of Lokayukta, Raipur. P.W.10 the complainant in his cross-examination stated that the 11 report was made vide Ex.P-31 at the dictation of one H.D. Mourya who has been examined as P.W.11. Narrating the incident further, the complainant stated that on the date of incident at about 12.30 p.m., he reached near Collectorate premises and he was accompanied by Mukesh and Sukhendra Sonkar and they were followed by Lokayukta people. Thereafter, they waited for considerable time and accused was called to come by one Mukesh Dewangan. It is stated that while they were waiting outside in front of Oriental Bank of Commerce, at about 11.30 the accused came there in a Suzki Motorcycle and thereafter the complainant wanted to give the money. Then the accused advised him to place it in the envelope. Thereafter, complainant went inside the Bank, took a blank envelop and placed the entire notes of Rs.7500/- and subsequently when he wanted to give it to the appellant, the accused refused to take it and in such resistance the money fell down to the ground. Thereafter, the complainant went away from there.
17. The statement is further corroborated from para 19 wherein he denied the suggestion given by the prosecution that the notes were recovered from the pocket of the appellant. At Para 14 of complainant, it is contended that the appellant accused has not demanded Rs.7500/- directly from him. With respect to Ex.P-5 which was another report given by the complainant, it is stated that though the demand was not made by the appellant but such complaint was written at the instance of the I.O. Mourya, the office of ACB. Therefore, serious contradiction and ambiguity have come to fore with respect to the demand made by the accused itself. 12
18. The state of affairs is further proved by prosecution witness Hulas Ram (P.W.5) who is Assistant Sales Tax Officer at that point of time. He has stated that he was called by the D.S.P., Rajput and I.O., Mourya, therefore, he met DSP Rajput, the I.O., Mourya and other Officers of the Lokayukta and he was directed to remain present in Trap which was proposed. Thereafter, he read the report (Ex.P-5) and heard the Tape but the voice was not clear. About the transcription though it was stated that it was not clear but the witness has stated that he has signed the transcription as a witness thereof. Therefore, the contents of transcription is under doubt.
19. Further narrating the incident, it is stated that at 10.30 a.m., he reached the campus of Collectorate and they waited near S.P. Office and the person to whom the bribe was to be given had not come therefore they waited there for 20-25 minutes after reaching the spot at about 10.30 a.m. It is stated that the complainant was sent earlier. Thereafter, when they received signal of the Police, they reached near Oriental Bank he saw that some notes were lying on the ground and the accused was present there and the people had crowded there. Thereafter, Lokayukta officers asked the appellant to pick up the notes which were lying on the ground. The appellant on such command, picked up the notes and subsequently the seizure of pant and shirt was made from the appellant.
20. The witness P.W.5 in the cross examination has categorically stated that when he saw after reaching the spot till that time the notes were shattered on the ground and has further stated that he had not seen the appellant was taking out the 13 notes from his Pant. He further volunteered that the police officers who were present there assaulted the appellant and he was forced to follow the instructions of the Police. In the statement it would show that this witness who is a government witness was standing at 50-100 ft., away and after receiving signals of the DSP Rajput, he rushed to the spot. According to this witness, the money was not recovered in person from the appellant instead, it was lying on the ground and accused was forced to pick up the same. This statement is also supported by the statement of complainant P.W.10 itself.
21. P.W.6 Jitendra Dama further stated that the police officer assaulted the appellant and the appellant was forced to pick up the amount from the ground, thereafter his hands were washed in the solution of sodium carbonate. Therefore, the statement of this witness, who was an independent government witness and was at a short distance and had rushed to the spot and the way he has narrated the incidence, the same cannot be ignored. So by the statement of this witness as against the evidence of I.O., and PW-10, serious ambiguity and doubts have been created. The very seizure of currency notes from the possession of the accused has not been proved beyond the reasonable doubt by the prosecution.
22. Now coming to the statement of P.W.10, the complainant, he admitted the fact that his loan application was also forwarded one-and-half months back from the District Industries Department to the Maharashtra Bank. Thereafter, he roamed around the Bank many a time but could not get 14 the loan and it was told by a peon that unless and until he pays the money, the loan will not be sanctioned and the complainant was advised by the peon of the Bank that the money should be paid through an acquainted person. He further admits that since he did not want to pay any amount, therefore, he along-with Mukesh Dewangan and Sukhendra Sonkar has disclosed this fact to the vigilance personnel. The witness has deposed that he told to the vigilance officers that he does not know the name of the person who demands bribe, but he takes the amount through acquainted persons and on this the vigilance officers advised the witness to bring a known person of the accused so that the action can be initiated. He further contended that in Oriental Bank of Commerce one Umesh Singh was there who was known to the appellant and thereafter, he requested Umesh Singh to get his work done through the appellant, on which, Umesh has stated that he would talk to the appellant and thereafter will revert back.
23. The complainant had further contended that he has told to Umesh Singh that the bank people had demanded Rs.10,000/- which he could not pay and maximum he could pay Rs.7500/-. The witness has further stated that the matter of demand of Rs.10,000/- made by the Bank people was also disclosed to him by the bank peon. Thereafter, he was advised by Umesh Singh to arrange for Rs.7,500/- and he would talk to the appellant to do the work. Thereafter, the witness further contended that thereafter on 11th he went to the vigilance office and the entire facts were disclosed to DSP Rajput. Thereafter one I.O., the Inspector 15 Mourya was called and he was advised that money may be transacted through the appellant and when the money would be paid to the Bank through the appellant, they will catch. The complainant further admits the fact that the Lokayukta people had suggested to make a report in the name of appellant accused and when he would pay the amount to the Bank people, they would catch hold of the bank people. Thereafter at the dictation of Mourya the Police Officer, the report was written. The complainant P.W.10 further stated that thereafter he met Umesh Singh and he was advised to wait for 2-3 days. Then on 14th again the complainant went to Umesh Singh and stated that since the holiday was intervening, they would pay the amount to the appellant and the appellant in turn would pass it on to the Bank people.
24. The complainant has further stated that thereafter on 15th date the complainant went to vigilance, had also disclosed the same-thing and another report was made at the dictation of Mourya on 15th and his signature was obtained. Narrating the incident, the complainant further stated that when they reached near Oriental Bank, the appellant was not present there. Thereafter, he talked to Umesh Singh and Umesh Singh advised Mukesh Dewangan to call the accused in the Oriental Bank in reference of Mukesh Dewangan. Thereafter, Mukesh Dewangan had called the appellant and after one- and-half hours, he came there. Umesh Singh thereafter talked to the appellant and advised the complainant to put the notes in the envelop and give it to the accused appellant. Thereafter, the complainant as per the advise of Umesh Singh placed the notes in the envelope, at that time the 16 appellant accused was sitting on his motorcycle. Thereafter, the complainant asked the accused that the money is being given for the Bank people, please take it and at that time, the appellant accused refused to take it. Thereafter when he forced to give it, he gave a jerk in refusal whereby the money fell down to the ground. The witness has further stated that he gave signal to the Lokayukta people and thereafter he went away to his house by cycle and thereafter he did not know what had happened at the spot.
25. It is stated by the complainant that at about 8 o' clock in the night he went to the Lokayukta office, his hands were washed and the seizure was made in respect of currency notes. Therefore, the facts as stated also raises a doubt that the raid which was stated to be at 1.45 p.m., as per Ex.P-9. The Panchnama of incidence records that the hands of complainant PW-10 were also washed at the same time whereas before the Court it is deposed that after all the incident was over, the complainant again went to the office of ACB at 8 p.m. Therefore, serious infirmity exists with respect to time to raise the doubt over the recording of proceeding Ex.P-9. Further P.W.5 Hulasram Dhruv had stated that the currency notes were lying on the ground whereas the Panchnama Ex.P-9 shows the money was taken out from the Pant of the accused. Consequently, there is no consistency with respect to the happening of incident qua Ex.P-9 and the statement of witnesses i.e., complainant and independent prosecution witness P.W.5. Therefore, it also raises a doubt of acceptance and recovery of money from the accused.
17
26. A perusal of the statement of complainant P.W.10 would further show that initially on the date of incident, the accused appellant was not present on the spot. The accused was called by one Mukesh Dewangan and thereafter when the complainant wanted to tender the money, the appellant/ accused refused to take the same and in such process the money fell to the ground. The statement of P.W.5 who is a prosecution independent Government witness has narrated the similar incident that when he reached the place, the money was lying on the ground. Therefore, this fact is corroborated that when the complainant wanted to give money to accused, the same was rejected by the appellant.
27. Therefore, it cannot be stated that the appellant himself has demanded the money or wanted to pass it on to bank people or accepted the same for the Bank people. As per the statement of complainant P.W.10 the appellant refused to take money itself which would show the nature of existing facts situation of the case.
28. Therefore, after entire scrutiny of statements and documents and on overall appreciation of evidence on record and in the context of principles of law pertaining to the proof of ingredients of sections 7 & 13 of the Prevention of Corruption Act as stated in the foregoing paragraphs, this Court is of the opinion that the prosecution has failed to prove the charges levelled against the accused beyond all reasonable doubt and the appellant is entitled for benefit of doubt.
29. In the facts of the case and in view of the foregoing discussions, I am of the opinion that conviction and sentence of the appellants cannot be sustained. Accordingly, the 18 judgment of conviction and order of sentence dated 04th August, 2003 passed by the 1st Addl. Sessions Judge-cum- Special Judge, Raipur, is set aside. The appeal is allowed.
30. It is stated that the appellant is on bail. His bail bonds shall continue for a period of six months in view of provisions contained in Section 437-A of Cr.P.C.
Sd/-
GOUTAM BHADURI JUDGE Rao