Nafr High Court
Case Details
1 Reserved on 24.01.2025 Pronounced on 23.04.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 386 of 2004 1 - Roop Das Vaishnav, Aged about 58 years, S/o Kanhaiya Das Vaishnav R/o Ward No.13, Bemetara District Durg (CG) ... Appellant versus 1 - State Of Chhattisgarh through: Inspector, Special Police Establishment Lokayukta Office, Raipur District Raipur (CG) ... Respondent(s) For Appellant For Respondent(s) : : Mr. Bharat Rajput, Advocate
Legal Reasoning
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.” (Emphasis Supplied) 10. In another case of B. Jayaraj Vs. State of Andhra Pradesh reported in (2014) 13 SCC 55 in paragraph 7 and 9 Hon’ble Supreme Court has held as under:- “7. In so far 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 illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P., (2010) 15 SCC 1 and C.M. Girish Babu Vs. C.B.I., (2009) 3 SCC 779. 9. In so far 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 Section 13(1)(d)(i)(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.” (Emphasis Supplied) 11. In case of Dashrath Singh Chauhan Vs. Central Bureau of Investigation reported in (2019) 17 SCC 509 Hon’ble Supreme Court observed as under:- 5 “29) It is for the reason that in order to prove a case against the appellant, it was necessary for the prosecution to prove the twin requirement of “demand and the acceptance of the bribe amount by the appellant”. As mentioned above, it was the case of the prosecution in the charge that the appellant did not accept the bribe money but the money was accepted and recovered from the possession of Rajinder Kumar–co-accused (A-1). 32) Since in order to attract the rigors of Sections 7, 13(2) read 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of “demand and acceptance of bribe money by the accused”, the proving of one alone but not the other was not sufficient. The appellant is, therefore, entitled for acquittal from the charges framed against him under the PC Act too. (See para 8 of M.K. Harshan vs. State of Kerala, (1996) 11 SCC 720)” (Emphasis Supplied) 12. Recently, in N. Vijayakumar v. State of Tamil Nadu reported in (2021) 3 SCC 687, reiterating the judgment of B. Jayaraj case (supra), it was held by the Supreme Court as follows: “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 Sections 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.” 13. In the light of above view taken by the Supreme Court, I shall examine the facts and statements of witnesses of the present case. It is not in dispute that the complainant Bhaudas (PW-10) knows the appellant. The appellant was a Patwari of Halka No.19 of Village Kathiya, District Durg and he was a public servant. 6 14. The complainant Bhauram Sahu (PW-10) in his statement deposed that when he went to Patwari Office, a person was also present there. Then he told to Patwari to see that the accounts of his Uncle and father are separated and then he started looking at his office papers. He denied that after seeing the Patwari's paper, he put the currency notes in the register without his knowledge. He himself stated that he gave the notes in Patwari’s hand. He stayed in Patwari’s office only for 5 to 7 minutes. Thereafter he stated that he stayed in Patwari’s office for about 2:30 -3 hours. He had not mentioned the above fact in his diary statement that he had spent 2:30-3 hours in the Patwari office. It is admitted that in his cross examination he did not mention that people of Lokayukt had asked him to remove the cloth from his head and give signals. He followed the people of Lokayukta to the Patwari's office. One of the people who had come from the Lokayukta office was holding the Patwari's left hand and the other was holding his right hand by the wrist and elbow. He admitted the fact that when the Lokayukt’s people asked the Patwari where the bribe amount kept, the Patwari said that he did not know. Then the complainant said that the amount was kept in the register but who took the money from register he didn’t know. In Patwari’s office the hands of the Patwari were washed thrice but no colouring was found. He didn’t know the reason why his hands were washed thrice. 15. Appellant in his statement under section 313 of the Cr.P.C. stated that he had given the copy of Kishtbandi (papers of land) to complainant Bhauram in front of Sarpanch Kalluram Sahu on 10.05.2002 and no money was demanded. On 14.05.2002 one Horilal Dewangan was sitting in his office and he was doing work of Horilal in his office, meanwhile the complainant came to his office to check the accounts of his uncle and father which were separated and asked him 7 to see the mutation register and after obtaining mutation register when he kept currency notes in it he didn’t know. No currency notes were recovered from his possession by Lokayukt. His hands were washed twice as the color did not come out, a third solution was made, he was forced to take money from Punch witnesses. The test was done in the Baramda of Gram Panchayat Kathiya at that time he and Mukesh Khare was in the other room adjacent to the Baramda of Panchayat Kathiya, so he has no information about what happened in the Baramda. He is innocent and has been falsely implicated. 16. On minute examination of the witnesses it appears on the record that the bribe money was not recovered from the possession of the appellant. The said money was recovered beneath the mutation register. 17. Constitution bench of the Hon’ble Supreme Court in case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 LiveLaw (SC) 1209 answered the question referred for consideration as “In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.” and held as under in paragraph 68:- “68. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 8 (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 9 (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) 27 (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.” (Emphasis Supplied) 18. Thereafter, in case of Neeraj Dutta Vs. State (Gpvt. of N.C.T. of Delhi) reported in 2022 LiveLaw (SC) 211 Hon’ble Supreme Court held as under:- “11. …….The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are ‘demand’ and ‘acceptance’ of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.” (Emphasis Supplied) 19. Hon’ble Supreme Court in case of Mir Mustafa Ali Hasmi Vs. State of A.P., (2024) 10 SCC 489 observed that “It is the settled convention in such cases that the Trap Laying Officer, makes efforts to verify the factum of demand of bribe by the public servant before initiating the trap proceedings. The factum of demand of bribe can also be verified by recording the telephonic conversation between the decoy and the suspect public servant. Often, a recording device is secretly placed on the person of the decoy to record the conversation which would transpire during the course of acceptance of bribe by the public servant.”. In the case in hand also such efforts was made by the respondent to check the veracity of the complaint made by the 10 complainant nor any recording device was given to the complainant to record the demand made by the appellant. 20. From the evidence brought on record by the prosecution it is quite vivid that the bribe money was not recovered from the exclusive possession of appellant. The hands of the appellant did not turn pink on washing twice. The complainant Bhauram Sahu (PW-10) already received the copy of papers of his land on 10.05.2002. As such there appears to be no strong motive for appellant to demand bribe for supplying the copy of papers of his land. The defence of the appellant that he has been falsely implicated by Krishna Kumar Pandey (PW-2) who was evicted from an encroachment on the orders of the Tahsildar and the appellant was a party in such eviction. Therefore, on deep analysis of evidence available on record and in light of the above case laws, this court is of the opinion that appellant was able to rebut the presumption on the basis of the preponderance of probability, the prosecution failed to prove the three essential ingredients (i) demand, (ii) acceptance and (iii) recovery beyond reasonable doubt. With due respect the judgment relied upon the prosecution will not come to its rescue in the given facts and evidence on record.
Arguments
Mr. Kalpesh Ruparel, P. L. (Hon’ble Shri Justice Sachin Singh Rajput) C A V Judgment 1. The appellant has challenged his conviction and sentence imposed upon him vide its judgment dated 15.04.2004 by the First Additional Sessions Judge and Special Judge, Durg (for short trial Court) in Special Case No.02/2003, by which he was convicted and sentenced in the following manner:- Conviction Sentences U/s 7, 13 (1) D and Section 13 For the offence U/s 7 (2) of Prevention of Corruption RI for 6 months and fine of Rs.500/- and in default Act, 1988 of payment of fine amount 15 days further RI For the offence U/s 13(1) D r/w Section 13 (2) RI for 1 year and fine of Rs.500/- and in default of payment of fine amount 15 days further RI. 2. The fact of the case is that on 15.04.2002, the appellant was working as Patwari of 2 Halka No.19 of village Kathiya, District Durg and in that capacity he was a public servant. Further case of the prosecution in nutshell is that the appellant took illegal gratification of Rs.300/- from complainant namely Bhaudas (PW-10) for supplying the copy of papers of his land of his land. It is also a case of the prosecution that on the basis of complaint received, a trap was laid and the appellant was caught red handed by accepting the money. A sanction to prosecute was granted by the Additional Secretary Legal Department, Raipur (CG). After due investigation, charge sheet was filed. The learned trial Court framed the charges for offence punishable under Section U/s 7, 13 (1) D r/w Section 13 (2) of Prevention of Corruption Act, 1988 (for short “PC Act”). The accused/appellant however, denied the charge framed against him and claimed for trial. 3. So as to establish its case, the prosecution has examined as many as 11 witnesses and exhibited 17 documents. The statement of the accused/appellant under Section 313 CrPC was also recorded where he pleaded his innocence and false implication in the case. 4. By the judgment impugned, learned trial Court has held the accused/appellant guilty and imposed the sentence as described above which is challenge before this Court by the appellant. 5. Learned counsel for the appellant submits that the learned trial Court committed an error of law in convicting the appellant for the aforesaid offence. He submits that the appellant has been falsely implicated which is evident from the evidence brought by the prosecution. He submits that the currency notes were not recovered from the exclusive possession of the appellant and the same was recovered beneath the papers of mutation register. He submits that the hands of the appellant was washed thrice and on first two occasions, no colouring was found and thereafter in the third occasion the colouring was found. He submits that the appellant has been falsely implicated by Krishna Kumar Pandey (PW-2) who was evicted from an encroachment on the order of the Tahsildar and the appellant was a party in such eviction. He submits that the prosecution has not been proved the demand and as the 3 money was not recovered from his exclusive possession, the prosecution was unable to prove the case beyond reasonable doubt therefore, he submits that the appeal may be allowed and the appellant may be acquitted from all the charges. 6. Per contra, State counsel supported the judgment impugned and submits that the learned trial Court has meticulously examined the evidence brought before it and found the appellant guilty of the offences and convicted as stated above. He submits that the demand has been proved by oral evidence of witnesses of the prosecution. He submits that even if the currency notes were not recovered from his exclusive possession but the same was recovered in his office beneath the mutation register. Therefore, from the circumstances and evidence brought on record, the conviction of the appellant is well found. He further submits that there is presumption against the appellant and in favour of prosecution, the appellant was not able to rebut the presumption therefore, the appeal deserves to be dismissed. He submits that the appellant was not able to prove his defence for washing his hands thrice. The Punch witnesses have very categorically stated that when his hands were washed, the colour turned pink and the same question has not been put before the punch witnesses. In support of his argument, he placed reliance upon the decision of Hon’ble Supreme Court in the case of Neeraj Dutta Vs. State (Government of NCT of Delhi) reported in (2023) 4 SCC 731. 7. A thoughtful consideration was given by me to the submissions advanced at bar and have perused the impugned judgment and have thoroughly examined the evidence available on record with meticulous examination of record. 8. To constitute the offence of an illegal gratification, there are three essential ingredients (i) demand, (ii) acceptance and (iii) recovery. 9. The Hon’ble Supreme Court in case of P. Satyanarayan Murthy Vs. District Inspector of Police, State of Andhra Pradesh and another reported in (2015) 10 SCC 152 observed 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 4 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.
Decision
21. As a result the impugned judgment is hereby set aside and the appellant is acquitted from all charges. Appeal thus allowed. Appellant is on bail. His bail bond will remain in force for six months in view of section 481 of BNSS Act. 22. Record with copy of this judgment be sent to learned trial court. PARUL MITTAL Digitally signed by PARUL MITTAL Date: 2025.04.29 14:15:55 +0530 Parul Sd/- (Sachin Singh Rajput) Judge