Raipur (CG) v. State Of Madhya Pradesh
Case Details
1 Reserved on- 24.01.2025 Delivered on - 23.04.2025 NAFR HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.04.29 10:54:10 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1238 of 2003 Gorakh Nath Yadav S/o Late Ramchandra Yadav Aged about 50 years, Chief Municipal Officer, Naya Baradwar, District- Janjgir-Champa R/o near ‘Lal Tank’ Yadav STC/PCO, Raigarh, District- Raipur (CG). ... Appellant(s) versus State Of Madhya Pradesh (Now State of Chhaatisgarh) Through Special Police Establishement, Lokayukt, Bilaspur Division, Bilaspur (CG). ... Respondent(s) For Appellant : Mr. Manoj Pranjpe with Mr. Abhishek Saraf, Advocate For State : Mr. Tarkeshwar Nande, Panel Lawyer Hon'ble Shri Justice Sachin Singh Rajput CAV Judgment 1. In this appeal, the appellant is challenging the judgment of conviction and order of sentence dated 18.11.2003 passed by the learned Special Judge, Raigarh in Special Criminal Case No.1/99 convicting the accused/appellant under Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to undergo rigorous imprisonment for one year & fine of Rs.2,000/- and rigorous imprisonment for one year & fine of Rs.1,000/-, with usual default clause. 2. Case of the prosecution is that accused/appellant was at the relevant point of time working as Chief Municipal Officer, Nagar Panchayat Naya Baradwar, District Janjgir Champa. Pursuant to advertisement issued by Nagar Panchayat Naya Baradwar in the month of August 1999 for recruitment on various posts including Lecturer Class-1 (Chemistry), complainant applied for the post of 2 Lecturer (Chemistry). After coming out successful in written exam, complainant was called for the interview in the office of Chief Municipal Officer. When complainant contacted the accused/appellant in his office, he told him that he got sanctioned post of Lecturer (Chemistry) for his daughter, who has also applied for the same, and if wants to get appointed on the said post then he had to pay him Rs.50,000/- before interview. The complainant did not want to give bribe to accused/appellant, therefore, he approached the respondent police and submitted complaint dated 1.9.1998 (Ex.P-5). On the
Facts
basis of said complaint, FIR (Ex.P-48) was registered. The complainant was handed over a tape recorder with blank audio cassette for recording the conversation between them. The complainant again contacted accused- appellant over telephone and recorded the conversation in which the accused demanded the amount of bribe in two installments i.e. Rs.30,000/- on 1.9.1998 and remaining Rs.20,000/- prior to interview on 2.9.1998. Then, he returned to the Police station and submitted the tape recorder and cassette. Transcription of recordings in cassettes produced by the complainant was prepared vide Ex.P-6 & Ex.P-7. Tape recorder and cassette were seized vide seizure memo of Ex.P-8. Thereafter, a trap team was constituted in order to catch accused/appellant red-handed while accepting bribe of Rs.30,000/-. Panch witnesses were called. They verified the complaint made by the Complainant. The Complainant submitted 60 currency notes in the denomination of Rs.500/-, total Rs.30,000 for giving to accused/appellant as bribe. The Phenolphthalein power was applied in the said currency notes and it was given to the complainant for handing over to the appellant and he was explained about the manner of giving the signal to the members of trap team by removing the spectacles worn by him and after handing over the tainted money to accused/appellant. Panch Witness namely Dr. OP Upadhyay, 3 Assistant Veterinary Officer was directed to remain near to the complainant and try to hear and see what transpires between the complainant and accused- appellant. Preliminary memo (Ex.P-9) was prepared in which entire pre-trap proceedings was mentioned including number of notes. This memo was signed by the independent witnesses, complainant and all other members of the trap team. Thereafter, the trap team along with panch witnesses and complainant left the office in a government vehicle and reached railway station at about 9:00 p.m. in night. Prior to reaching railway station, the train in which complainant was to meet accused-appellant departed. Clerk of the office of accused-appellant met complainant and told him that accused-appellant had asked him to meet him in Raigarh. Whereupon the entire team proceeded towards Raigarh and after taking help from local police, the trap team along with complainant and panch witnesses left for the house of complainant. At a distance of about 300 meter from the house of accused, members of trap team alighted and after again giving brief instructions to complainant and panch witnesses, they were directed to proceed to the house of accused-appellant. Members of trap team scattered themselves nearby and waited for pre-decided signal from the complainant by removing the spectacles worn by him. However, suspecting the proposed trap, the accused-appellant did not demand bribe and asked the complainant to come afterwards. Accused and complainant both came out of house, however, on seeing trap team, accused ran inside the house and hid himself in the house of his relatives. Members of trap team introduced themselves to accused and brought him to Bilaspur with them. Trap proceeding memo was prepared vide Ex.P-11. 3. After completion of investigation, sanction for prosecution against the appellant was obtained under the Act of 1988 and charge sheet was filed against the accused/appellant on 17.5.1999 under Section Section 7 of the Act 4 of 1988. Accordingly, learned Special Court framed the charges under the aforesaid section against the accused/appellant, which he denied and sought trial. 4. In order to prove the charge against the accused/appellant, the prosecution examined 09 witnesses. Statement of accused/appellant was recorded under Section 313 Cr.P.C. in which he denied the charges levelled against him and pleaded innocence & false implication in the offence. 5. After hearing the parties and appreciating the evidence available on record, the trial Court convicted and sentenced the accused/appellant in the manner as described above. 6. Learned counsel for the appellant would argue that the applicant has not committed any offence as alleged and he has been falsely implicated in the present case just to avoid selection of his daughter on the post for which she had applied for in Nagar Panchayat Naya Baradwar. He submitted that in order to attract provision of Section 7 of the Act of 1988, the prosecution is under legal obligation to prove the twin requirements of ‘demand and acceptance of bribe’ by the accused. Present is not a case in which appellant was caught red-handed accepting alleged money as bribe. The evidence with
Legal Reasoning
regard to demand of illegal gratification is prima facie not believable as the alleged transcript of conversation between the appellant and the complainant does not reflect the demand of money by appellant. Telephone number on which said audio cassette was prepared was not proved to be of the appellant. Complainant (PW-6) has allegedly identified the voice however he is not a person acquainted with the voice of appellant. Further, the voice sample of the appellant had not been taken and sent for analysis or voice spectrography and thus there is no opinion of the expert on record that the voice in the tape 5 recorded conversation is of the appellant. Shadow Witness (PW-2) has admitted in his deposition that appellant did not make any demand of money to complainant before him nor was he agreed to accept the money. Thus, the twin requirements to be satisfied for resting conviction under Section 7 of the Act of 1988, are not satisfied against the appellant, as such, prima facie no offence under section 7 of the Act of 1988 is made out against the appellant. He submitted that presumption under Section 20 of the Act of 1988 can be drawn only after demand for and acceptance of illegal gratification is proved. In the case at hand, the prosecution utterly failed to establish demand and acceptance of bribe and therefore presumption under Section 20 of the Act of 1988 was successfully rebutted. He further submitted that trap in question is also misconceived inasmuch as had the appellant demanded any bribe and received the same, the same could have been recovered from his possession or at the place where he allegedly received the amount of bribe. Since he did not demand any bribe, therefore, the same has not been recovered from his possession. Therefore, in absence of any specific evidence of demanding bribe and its acceptance, the conviction of appellant under Section 7 of the Act of 1988 is bad in law. He next contended that sanction for prosecution of appellant granted by the Additional Secretary, Law & Legislative Department is not a valid sanction in the eye of law as he was not the competent authority to appoint and remove the appellant and therefore he was incompetent to accord sanction for prosecution. He submitted that the material contradictions between the prosecution witnesses has not been properly considered by the trial Court and the trial Court failed to see the glaring contradictions in the deposition of the prosecution witnesses which hits the root of the matter. 6 Lastly, he submitted that even taking the entire prosecution story to be true but without accepting it if there may be a demand but since the active acceptance of money is not proved by prosecution, therefore, it cannot be taken to be an active acceptance of it. In support of his submissions, learned counsel for appellant placed reliance upon the judgment of Hon’ble Supreme Court in case of P. Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and another reported in (2015) 10 SCC 152, and a judgment of this Court in case of Ramgopal Sahu (R. G. Sahu) Vs. State of Chhattisgarh passed in CRA No. 1505/2017 order dated 20.09.2024. 7. On the other hand, learned counsel appearing on behalf of the State would argue that the appellant was working as Chief Municipal Officer in Nagar Panchayat Naya Baradwar where appointment on the post of Lecturer (Chemistry) was to be made and therefore, he was instrumental in the process of selection. From the transcript of conversation between the complainant and the accused regarding illegal gratification and from other evidence, the prosecution has proved the motive and the demand of bribe money, therefore, by virtue of Section 20 of the Act of 1988, it will be legally presumed that accused/appellant has committed the offence under Section 7 of the Act of 1988. He further submits that valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. The complainant and other independent witnesses have fully supported the prosecution case regarding factum of demand of bribe etc., which is sufficient to hold that the appellant was actively involved in demanding bribe from the complainant. Accused/appellants utterly failed to rebut the presumption by leading evidence, therefore, he has rightly been convicted. 7 8. Head learned counsel for the parties and perused the record of trial Court including the impugned judgment. 9. From the evidence collected by the prosecution including the deposition of the complainant, the case of the prosecution does not appear to be fully established. If a composite study of the evidence of the witnesses is ventured into, it appears that first the accused-appellant had agreed to get the work of the complainant done for Rs. 50,000/- which was to be paid in two installments first of Rs. 30,000/- and other one Rs. 20,000/-. Allegedly the complainant went to the appointed place for handing over the first installment of Rs. 30,000/- i.e. in a Raigarh bound train but by the time the said train had already departed. Thereafter, on being telephonically contacted the accused- appellant asked the complainant to come down to Raigarh for doing the needful in his house. The complainant by informing the ACB before hand had approached the accused-appellant at Raigarh accompanied by the trap party. However, when the complainant tried to meet the accused-appellant, he sensing the imminent danger of the trap avoided the complainant and took an escape route inside of his house but the trap party also followed him and nabbed him. It is relevant to note here that there is nothing on record to suggest that the currency notes coated with Phenolphthalein powder by the trap party were ever handed over to him. What is more important to be noted here is that none of witnesses has stated that the voice recorded in the tape recorder given to the complainant by the trap party was of the accused- appellant. Though the complainant claims the said voice to be of the accused- appellant, he has failed to prove as to what basis he was saying so as there is nothing on record to the affect that prior to the incident there was any such occasion for him to have come across the accused-appellant. As has been time and again mandated by the Supreme Court in a series of decisions that for 8 establishing a case under Section 7 of the Prevention of Corruption Act, twin requirements are to be proved by the prosecution i.e. the demand of a illegal gratification and the second one is the acceptance of the same by the accused. This Court has turned over the evidence of the witnesses at great length but nothing could come across on the basis of which it could be conclusively said that these two requirements are fulfilled in the case in hand. If the evidence of the complainant himself is taken a look of, it indicates that by the time he tried to meet the accused-appellant in his house at Raigarh, sensing the movement of the trap party, he evaded the same by getting inside the house but even then the trap party did not step back and straight away followed and nabbed him. The statement of the complainant does not go to show that the accused- appellant made a demand of illegal gratification or accepted the same. Yet another important fact to be taken care of in this case is that of course. One of the witnesses Pw-2 who was also the member of the trap party has stated that the accused-appellant did not make any demand nor was he ready to accept the same. Even according to the complainant the conversation between him and the appellant could not be recorded as the tape recorder given to him could not switch start. Another requirement for holding the accused-appellant guilty under the prevention of corruption Act is whether he was having the authority to do the work for which the bribe is said to have been offered to him. If this aspect of the matter is looked into, from the material available on record it is evident that the interview for the said post was to take place on 02.09.1998 whereas the accused-appellant was ousted from the selection committee on 28.08.1998 itself i.e. three days prior thereto. Meaning thereby, since on the date of interview the accused-appellant had already become functus officio, there was no occasion for him to be of any help to the complainant as has been alleged by him. On this count also the prosecution has failed to prove its case 9 as to the authority of the accused-appellant to make a demand for the illegal gratification in lieu of the appointment to the daughter of the complainant. 10. The Supreme Court dealing with the issue similar in nature in the matter of Satyanarayan Murthy (Supra) has held as under :- “23. 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. 26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.” 11. Having thus gone through the factual and legal background as stated above, this court is of the opinion that the prosecution has utterly failed to establish the two important requirements necessary for convicting the accused- appellant under the Prevention of Corruption Act i.e. the demand of illegal gratification and the second one being the acceptance thereof which are sine qua non for so doing. The prosecution has also failed to establish the competence of the accused-appellant on the date of the incident to seek such illegal gratification as three days prior to the interview in question the accused-appellant had already been ousted from the concerned selection committee. Thus, the finding recorded by the trial Court convicting and sentencing the accused-appellant as mentioned above being not in conformity 10 with the testimony of the witnesses cannot hold the field and is liable to be set
Decision
aside. Order accordingly. 12. In the result, appeal is allowed, the judgment impugned is set aside and the accused-appellant is acquitted from the charges levelled against him. The appellant is reported to be on bail. His bail bond will remain in force for six months in view of section 481 of BNSS,2023. Copy of this judgment with trial Court record be sent back for information and necessary compliance. Sd/- (Sachin Singh Rajput) Judge H.ansari