Chhedi Lal Sharma v. State
i (a) ,NAFR s HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 2019 of 1997 Chhedilal Sharma, son Shri Lakhanlal Pande, aged Mungell, (the then Head Master, Middle School), Rohra, of village Kheda, Police Station about 58 years, resident District Bilaspur, MP (Now CG) --- Appellant
Versus
Pradesh (Now Chhattisgarh) 1.
The State Madhya through Special Police Establishment, Bhopal, MP ---Respondent AND CRA No. 2018 of 1997 1.
Chhedilal Sharma, son Shri Lakhanlal Pande, aged Mungell, (the then Head Master, Middle School), Rohra, of village Kheda, Police Station about 58 years, resident District Bllaspur, MP (Now CG) --- Appellant c
Versus
Pradesh (Now Chhattisgarh) The State Madhya through Special Police Establishment, Bhopal, MP ---Respondent W Shri Pravin Das, Advocate For Appellant Shri Neeraj Mehta, PL For Respondent/State m."
W Hon'ble Shri lustice Pritinker Diwaker ludgment on Board 10l01l2017 As the aforesaid two Criminal Appeals arise out of the .08.1997 passed Special same judgment dated ge Bllaspur Special Criminal Judge/Additional Sessions Jud '04/1993 convicting Case Nos.
03/1993 &
~2_--- y5 , accused/appellant, under Sections 7, (1) (d) read with L \
(2) of the Prevention of Corruption Act (for short the "PC Act") sentencing him undergo simple imprisonment for six months with fine of Rs.
500/- u/s 7 and simple imprisonment for one year with fine of Rs.
500/- u/s 13 (1) (d) read with '13
(2) of the PC Act plus default stipulations, they are disposed of by this common judgment.
2.
Facts of th'ecase brief are at the relevant time accused/appellant was working as Head Master Government School, Rohra, Tehsil Mungeli, District Bilaspur it is alleged that he demanded Rs. 100/- from complainant Mohanlal (PW-3) Special Criminal Case No.
03/1993 as illegal gratification issuance of transfer certificate his grand-son Premlal (PW-4) accepted same as well.
Similarly it is alleged that he further demanded and accepted Rs.
100/- from the other complainant Umed Prasad (PW-1) Special Criminal Case No.
04/1993 issuance of transfer certificate to his son Bhanu Prasad (PW-2).
Written report Ex.
P-1 was filed by complainant Umed Prasad (PW-l) whereas the other written report Ex.
P-4 was made Mohanlal (PW-3) before Dy.
SP (Vigilence) requesting action against as they were interested giving bribe amount him.
On basis of these two similarly worded written complaints un-numbered Dehati Na/isi Ex.
P-2 was registered.
After chemically treating currency notes, Pre Trap Panchnama was drawn;
trap party was constituted;
it went to the house of the accused/appellant at village Kheda;
_. ;_ a!
complainants were asked to go inside the house for making payment to him thereafter on receiving signal from the complainants, members of the trap party also rushed in to the house of accused and apprehended him.
it is alleged that Rs.
200/- (two currency notes denomination) were seized from the accused/appellant vide EX.
P-8 after conducting chemical test seized currency notes, memorandum Ex.
P-9 was prepared, service book was seized under Ex.
P-ll, spot map EX.
P-19 was drawn and the articles so seized were sent to Forensic Science Laboratory for chemical examination vide EX. P-22 from where positive report Ex.
P-23 was received.
Sanction to prosecute the accused was obtained vide Ex. P-18 and after the chargesheet was filed, Court below framed the charge against him under Sections 7, 13 (1) (d) read With 13 (2) of the PC Act. i So as to hold the accused/appellant guilty, prosecution 3.
has examined 11 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 Code Criminal Procedure which denied charge levelled against him pleaded his innocence false implication'in case.
This apart, five witnesses including accused/appellant were also examined defence in support of its case.
4.
Specific defence taken by the accused/appellant is that he had received Rs. 200/- from the complainants in respect of contribution for Shaia Vikas Samiti and it was not an illegal gratification as alleged.
According him, Mungeli Tehsil
@ ,w «AQr every school has a Shala Vikas Samiti with the locai villagers as its members and the Head Master as the Secretary thereof. In the school of the petitioner also the Shala Vikas Samiti was constituted 20.5.1988 being Head Master, accused/appeiiant was Secretary of the said Samiti thus empowered coilect funds from the parents/guardians students studying school meet out expenses incurred maintenance school building.
Further defence of the accused/appellant is that in pursuance of the resolution dated 20.5.1988 (Ex.
D-l), immediately started collecting contributory amount duly maintaining record thereof, it not that first time 6.6.1989 made such collection from complainants.
According accused/appellant, apart from issuing receipts favour complainants had issued receipt against one Nanku Singh (DW-2) also vide Ex.
D-1.
Accused/appellant further taken defence had asked the complainants to pay Rs.
50/- each as contribution towards the Shala Vikas Sam'iti on 6.6.1989 under receipt but k as they both had given him currency notes denomination each and before he could return the remaining amount of Rs.
50/- to each of them, trap party apprehended him.
5.
After hearing parties trial Court convicted and sentenced the accused/appellant as mentioned above paragraph No.1 of this judgment. Hence this appeal.
, @ 6.
Counsel for the appeHant submits as under:
(i) that the Court below has erred law convicting accused/appellant. solely basis presumption under Section 20 of the PC Act holding that he is guilty of collecting amount Rs.
100/- from each complainants as illegal gratification;
(ii) in the schools of Tehsil Mungeli Shala Vikas Samitis were constituted likewise case accused/appellant's school also such Samitl was constituted 20.5.1988 being Secretary thereof was fully empowered to collect funds from the parents/guardians of the students meet out expenses incurred maintenance of school building;
(iii) present case accused/appellant issued receipt of Rs.
50/- to each of the complainants but before he could return remaining amount 0f Rs.
50/- trap party entered his house and apprehended him;
(iv) that for the payment received from the complainants the accused issued receipts No.
65 and 66 whereas respect of amount Rs.
10/- accepted from Nanku Singh (DW-2) receipt No. 64 was issued;
(v) that while referring to document of Ex.
D-2 it is argued by the counsel for the accused/appellant that even prior and subsequent date incident various receipts dated 23.5.1988, 19.7.1989, 9.8.1989, 13.8.1989,"22.9.1989, 20.10.1989 and 27.11.1989 - all forming part of Ex. D-2 were issued by the accused/appellant;
.43..
(vi) that defence witness No.2 namely Nanku Singh who w also the signatory of resolution dated 20.5.1988 Ex.
D-l categorically stated about constitution of Shala Vikas Samiti and authorisation of the Head Master as Secretary thereof as well as issuance of receipts No. 64, 65, 66 etc; (vii) while arguing case counsel appellant took this Court through the evidence of Nanku Singh (DW-Z) - the father of one of the students of the same school has also supported the case of the defence and stated that he paid Rs. 10/- accused/appellant and obtained receipt that when he gave the said amout to the accused, two other boys with their fathers came there, asked transfer certificate, each of them gave Rs.
100/» to the accused, asked for refund of remainaing amount of Rs. 50/- on which accused had told them refund same after preparation of the transfer certificate.
According counsel accused, statement of Nanku Singh (DW-2) further goes to show receipts were issued by the accused/appellant but before he could return the remainingamount. the trap was laid; (viii) that the appellant has been falsely implicated in the case at the instance of one Santosh Pandey - the Maa/gujar of the village with whom he was having old land related dispute and the litigation was also pending for that;
(ix) prosecution utterly failed prove demand of illegal gratification which is a sine qu'a'non to hold one guilty under Sections 7, 13 (1) (d) read with l§
(2) of the PC Act, and mere recovery of tainted amount is not sufficient
for the said purpose;
(xi) presumption under Section of the P__C Act rebuttabie presumption appellant successfuiiy rebutted same giving explanation his statement recorded I'Lnder Section 313 of the Code of Criminai Procedure and establishing his defence by preponderance of probability but the Court below has committed an error of law in ignoring the same;
(xii) that even prior to the date of alleglled trap, pursuant to notice dated 2.6.1989 given District School Inspector regarding complaints made complainants Mohanlal Umed Prasad the.
delay issuance transfer certificate also demand of money in lieu thereof, accused/appellant gave prompt reply 3.6.1989 clearly mentioning therein that he never made any demand for any illegal gratification issuance of transfer certificate.
reply accused/appellant further mentioned said certificate could be issued as there was some discrepancy results Premlal Bhanu Prasad ~ the wards of the complainants and that after correction of the said error, would issue the same after taking contribution towards Shaia Vikas Samiti duly issuing the receipts;
(xiii) that from the explanation of the accused/ap??llant it apparent that it was given prior to the alleged trap and when the complainant could not succeed in involving the accused false case from department side, they have made an
_,%._ % absolutely false complaint to the police and unfortunately the prosecution also overlooked correct factual position which ultimately led to his conviction under the special Act. (xiv) that the Block Education Officer (PW-7) has admitted his statement there were certain discrepancies the'
results of Premlal and Bhanu Prasad which is evident from EX.
'
P-l7.
(xv) support-of his contention, counsel for the appellant placed reliance decisions Apex Court matter of Punjabrao V.
State of Maharashtra (2002) 10 SCC 371, matte ll.
Venkata Subbarao v.
State represented by Inspector of Police AP (2006) 13 SCC 305, in the matter of CM Girish Babu v. CBI, Cociiin, High Court Kerala (2009) SCC 779, matter Banarsi Das v. State of Haryana (2010) 4 SCC 450, in the matter of B. jayaraj v.
State of Andhra Pradesh (2014) 13 SCC 55 and in the matter of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another (2015) 10 SCC 152.
/»\ 7.
On other hand, counsel respondent/State supports judgment impugned submits findings recorded Court below convicting accused/appellant under Sections 7, (l) (d) and (2) the PC Act are strictly in accordance with law and there is no infirmity in the same.
He submits that once the prosecution proved existence preponderence probability against accused;
chemical test turned postive;
.-3__'
~;( trap party recovered currency notes from accused, there no scope interference with well reasoned judgment passed by the Court below.
8.
Heard counsel for the parties and perused the evidence on record.
9.
Umed Prasad (PW-1) - complainant Special Criminal Case N0. 4/1993 is the father of Bhanu Prasad (PW2).
He stated at relevant time his son Bhanu Prasad was studying class Vlll Middle School Rohra and that on 3.6.1989 when he approached the accused/appellant for transfer certificate so as to get his son admitted in class lX, he demanded Rs.
100/- from him. According this witness, when expressed his inability pay said amount account of his poor financial condition the accused/appellant told him suCh certificate would be issued without money. Thereafter, on 5.6.1989 he alo'ng with Mohanlal (PW-3) went to Vigiience Office at Bilaspur and narrated entire story to him. On 6.6.1989 he gave a written report Ex. P-1 and one currency note 100/- denomination concerned officer which after being chemically treated was given back to him which he kept in his pocket. Subseuqently, he along with three persons (PW-2 PW-4) went house accused/appellant and asked him to issue the certificate as he had arranged for money. According to this witness, after giving mark-sheet transfer certificate accused/appellant accepted Rs.
100/- from him and asked for
~% y Va Rs.
40/- more.
Thereafter, according this witness, his son Bhanu Prasad went out and informed about the same to the concerned officer which trap party came there being asked took out Rs.
200/- (two currency notes of 100 denomination, one given by this witness andfthe other one Mohaniai). This witness has further stated that after washing hand pocket trouser in the solution so prepared, its colour turned red.
paragraph No.
his deposition, this witness stated that he was not aware of the fact that in the school of village Rohra there was any Vikas Samiti. He however admits that at the time of admission and at the time of leaving school some amount was being taken but he has denied any receipt being issued.
Bhanu Prasad (PW-2) - the son of Umed Prasad (PW-1) has stated that when he along With Premlal went to the concerned school, accused/appellant asked them get Rs.
100/- each only then mark-sheet transfer certificate would be issued. Thereafter, on 5.6.1989 his father went concerned officer informed him about same. According to him, his father made an application to the Vigilence officer, gave Rs. 100/- to him and after being treated chemically the said currency note was kept in his pocket. This witness along with (PW-1, PW-3 and PW-4) went to the house of the accused and on being demanded, gave him Rs.
100/-.
This witness further stated accused/appellant demanded Rs.
40/- more and then he came out and told the trap party about giving money to the accused which the
aw trap party went to the house of the accused and took out the money from his pocket.
in paragraph No. 13 this witness has stated at the time of giving money to the accused, addition to the complainant party 2-4 other persons were also present but he was not aware of their names. Mohanlal (PW-3) - the compiainant Special Criminal Case No.
3/1993 grand-father of Premlal (PW-4) while supporting case prosecution has stated that on 5.6.1989 Rs.
IOO/- were demanded accused/appellant as was interested in giving the same, he made the complaint to the Vigilence officer. Thereafter, on being asked by the Vigilence officer he gave Rs. 100/- to him who after chemically treating the same returned to this witness with the instruction to give it to the demand.
Accordingly, he went to the house of the accused and being demanded he gave Rs.
100/- to the accused and when he was preparing the transfer certificate, trap party approached there then being asked, he took out the money from the pocket of his trouser. In paragraph No. 13 this witness has stated that Premlal and \V bhanu had told him accused/appellant had asked them to give transfer certificate only after receiving money for Shala Vikas Samiti.
Premlal (PW-4) ~ the grand-son \ Mohanlal (PW-3) also supported case \ prosecution stating that the accused/appellant had asked for Rs.
100/- issue transfer certificate.
Rest statement of this witness is quite similar to the ones' made by PW-l PW-3.
K;R.
Dixit (PW-'5) - an independent witness
"v u A u .42..
though has supported the case of the prosecution but at the same time stated that when reached spot, mark~sheet and transfer certificate were possession of the complainants.
Shri H.N.
Shukla (PW-6) - Lokayukta inspector had prepared chemical solution instructions of Dy.
S.P.
This witness however has stated had seen money transaction between complainants accused.
S.L.
Giwari (PW-7) - yet another independent witness who at relevant time was posted as Block Education Officer, Mungeli has supported the case of the prosecution.
However, paragraph No.4 admitted that there were discrepancies in the result of Premlal and Bhanu Prasad studying class Vlll in the year 1989.
He has also admitted that in every school there existed Shala Vikas Samiti headed Secretary who normally Head Master of the school and that some token amount was collected by the said Samiti from the guardian/parent of the student for maintenance of the school building. Dinanath (PW8) witness who proved sanction Ex.
P-18 prosecute accused.
Uma Shankar Singh (PW-9) Patwari who prepared spot map Ex.
P-19. S.S. Gaur (PW-10) investigating officer who supported case of the prosecution and described as to how the trap was laid. Ram Bahadur Singh (PW-11) being a formal witness has not stated anything specific against the accused/appellant;Ghanshyam Prasad Yadav (DW-l) stated at relelvant time there existed Shala Vikas Samiti village Rohra of which
@ Head Master school was Secretary.
He further stated Secretary said Samiti was empowered collect the contribution, issue the receipt and keep account thereof. According to this witness, on 6.6.1989 / three receipts having the number 64, 65 and 66 were issued Shala Vikas Samiti names Nanku Singh, Umedram Mohandas respectively.
Nanku Singh (DW-2) has stated that at the relevant time he had gone to the school at village Rohra making an inquiry with respect supplementary examination of his son Rajendra and had given Rs.
10/- to the accused who was the Head Master of the said school of which receipt was issued him.
According this witness, at that time two boys along with their parents had also come there for obtaining the transfer certificates and after giving Rs.
100/- each they had asked refund Rs. 50/- to each of them on which the accused had told them return remaining amount after preparing transfer certifricate but meanwhile 4-5 people came over there apprehended accused.
Dhanush Singh Rajput (DW-3) has also stated that there was Shala Vikas Samiti in the school of village Rohra he was one its members. According to this witness, on being asked about the issuance of certificate, the accused had informed him that as there were some discrepancies result, certificate could be issued would issu'e'the same immediately after'the result is corrected. Ram Bharosh (PW-4) has stated that there was some land related dispute between
aqg @ the accused and the Malgujar of the village namely Santosh some litigation was also pending.
Chhedilal Sharma (DW-5) - appellant herein taken defence been falsely implicated at behest one Santosh Kumar Pandey - Malgujar village account some land related dispute pending litigation therefor.
10.
Before adverting to the merit or demerit of the case, this Court feels it appropriate to first look into the existing legal position in the matters involving the identical issue. 11.
In matter Punjabrao v.
State Maharashtra (supra) where took plea amount accepted him was pursuance of any demand illegal gratification but it was for a loan amount which he was collecting in those days from different raiyats and therefore he has not committed any offence under the provisions of PC Act, while acquitting him, it has been held by the Apex Court as unden "3. We have examined the judgment of the learned Special Judge as well as that of the High Court.
it too well settled case where offers an explanation receipt alleged amount, the question that arises for consideration whether thatexplanation can be said to have been established.
it is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as prosecution, but can establish the same by preponderance of probability. it is undisputed that from 24"" to 26th the Patwari was collecting loans collection campaign.
it is,~of course, true as observed by the High Court that when investigating officer seized the amount from the accused Patwari, he did not offer the explanation that it was relation collection of loan, but that by itself would be sufficient throw away
"lg, explanation offered by the accused his statement under Section 313 when such expianation couid be held be reasonable under facts circumstances case, as indicated learned Special Judge while acquitting the accused. lt also transpires High Court, while setting aside an order of acquittal recorded by the Special Judge, has not focussed its attention on the reasoning advanced Special Judge, mere reappreciation has come to the conclusion, and in our View conclusion based upon misreading the relevant evidence including the evidence of PW-2. in the aforesaid circumstances, we have no hesitation to come to the conclusion that the High Court erred in interferring with well-reasoned judgment of the Special Judge in an aorder of acquittal. We, therefore, set-aside impugned conviction sentence passed by the High Court. The appeal is allowed. The accused-appellant is acquitted of the charges levelled against him. The bail bond stands discharged." While considering presumption enshrined under l2.
Section 2O PC Act matter V.
Venkata Subbarao v.
State represented by Inspector of Police (supra) it has been held by the Apex Court as under:
"24.
Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alias, demand itself had not been proved.
in the absence of proof demand, question raising presumption would arise.
Section Prevention Corruption Act, provides raising of a presumptiononly if a demand is proved.
it reads as under:
20.
Presumption where public servant accepts gratification other than legal remuneration.-
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (l) of section it proved an person accepted or obtained or agreed accept or attempted obtain himself, or any other person, any gratification (other than legal remuneration) orany valuable thing from any person, it shall be presumed, unless contrary proved, accepted or obtained or agreed to accept or attempted to obtain gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned
Mlérsection or, consideration or for to be inadequate.
as case may be, without a consideration which he knows 25.
Furthermore.
even such case, the burden an does no t have meet same be made by the proof, as required prosecution.
26.
(2006) 6 SCC M5.
39, Narayana this Court Menon v.
State Keraia h eid (SCC p. 55, para 45) an accused is not as prosecution.
it may be defendant civii "Moreover, the onus on heavy as compared with proceeding."
27.
in Un ion of india v. Purnan SCC 576, it was opine d: (SCC p. 585, du Biswas para 36) (2005) 12 heid by the Apex Court as under:
'17 ~ 20.
Presumption where public servant accepts gratification other than legal remuneration.--
(1) Where, in any trial of an offence punishable under section 7 or section or clause (a) or clause (b) of sub-section (1) section it proved an person accepted or obtained or agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any, person, it shall be presumed, unless the contrary proved, accepted or obtained or agreed accept or attempted obtain gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may:
be, without consideration or consideration which he knows to be inadequate.
20. A three-judge Bench M.
Narsinga Rao v.
State AP (2001) .1 SCC 691, while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution further duty to prove that what was paid amounted to gratification, observed: (SCC p. 700, para 24) "24 ..... we think it necessary deal with matter detail because recent decision rendered us the said aspect has been dealt with at length.
(Vide Madhukar Bhaskarrao Joshi v.
State Maharashtra (2000) 8 SCC 571, SCC p. 577, para l2) the following statementmade by us in the said decision would be the answer to the aforesaid contention raised learned counsel;
(Madhukar case SCC p.
577, para 12) - '12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance gratification.
Once said premise is established the reference to be drawn that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act.
So word "gratification"
need be stretched mean reward because reward outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at collocation of two expressions adjacent each other like "gratification or any valuable thing".
If acceptance of any valuable thing can help to draw the presumption it was accepted as motive or reward for doing or forbearing to do an official act, word "gratification"
must be treated context to mean any payment for giving satisfaction to the public servant who received it."
M K '
a (5 ~~ 21.
It well settled presumption be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through cross-examination of the witnesses cited against him or adducing reliable evidence.
lf the fails disprove presumption the same would stick and then it can be held by the court that the prosecution has proved that the accused received the amount towards gratifiction.
22.
lt equally well settled burden proof placed upon person against whom presumption is made under Section of the Act akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.
"4.
It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden leading evidence prove his case beyond reasonable doubt. That is, of course, the test prescribed deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4(1) Prevention of Corruption Act'
lt sufficient if the accused person succeeds in proving a preponderance of probability favour of his case.
lt not necessary for the accused person to prove his case beyond reasonable doubt or default to incur a verdict of guilty. The onus of proof lying upon person prove his case preponderance probability.
As soon as he succeeds doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e. that of establishing whole case guilt of the beyond a reasonable doubt."
(emphasis supplied) (See V.D.jhingan v. State ofU.P. at AIR p. 1764, para 4.) 23.
It against this background principles we have examined contention of the appellant that the charges under Section 7 of the Act have not been proved against him. 24.
It was'argued Shri U.U.
Lalit, Senior Counsel, the circumstances found by the High Court in their totality do not establish that the appellant accepted the amount of Rs. 1500/- as gratification. Having examined the findings of both the courts, we are satisfied that the appellant has proved his case test preponderance probability we accordingly reach conclusion that the amount was taken appellant as gratifiction.
He- was made believe amount paid him was towards repayment of loan taken by PW 2 from Accused 1. 25.
The prosecution failed establishing guilt of the beyond reasonable doubt appellant
rISreceived any gratification.
26.
For the aforesaid reasons. we find it difficult to sustain conviction of the appellant under Section of the said Act.
Accordingly.
conviction appellant sentence imposed upon him is set aside.
14.
matter of Banarsi Das v.
State of Haryana (supra) it has been held as under:
20.
It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis inference.
The offence should be proved against the beyond reasonable doubt either direct evidence o'r even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials complete chain duly supported appropriate evidence. Applying these tests to the facts of the present case, PW 10 and PW 11 were neither the eyewitnesses to demand nor acceptance money accused from Smt Sat Pal Kaur (PW 2).
23. To constitute an offence under Section IPC it necessary prosecution prove there was demand of money and the same was voluntarily accepted by the accused.
Similarly, terms of Section 5(1)(d) Act, demand acceptance of the money .doing favour discharge his official duties sine qua non to the conviction of the accused.
25.
Reliance on behalf of the appellant was placed upon the judgment of this Court in C.M. Girish Babul where in the facts of the case the Court took the view that mere recovery of money from itself enough in absence of substantive evidence for demand acceptance.
The Court held there was no voluntary acceptance of the money knowing it to be a bribe giving advantage evidence on record, the Court in paras 18 and 20 of the judgment held as under: (SCC pp. 784 & 785~86) "18.
ln Suraj Mal v.
State (Delhi Admn.)4- this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it paid not sufficient to convict the accused when substantive evidence case reliable.
The mere recovery itself cannot prove \ charge of the prosecution against the accused, absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
V #Za'
@ ;
* >l< *
20. A three-Judge Behch M. Narsinga Rao v. State of A.P.§ while dealing with the contention that it is not enough that some currency notes were handed over to the public servant make it acceptance gratification prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p. 700, para 24) '24.
we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length.
(Vide Madhukar Bhaskarrao joshi v.
State of Maharashtraé.) The following statement made us said E%453 decision would be the answer to the aforesaid contention raised by the learned counsel: (Madhukar caseg, SCC p. 577, para 12) g "12. The premise to be established on the facts for drawing presumption is that there was payment or acceptance of gratification. Once the said premise established inference be drawn that the said gratification was accepted 'as motive or reward'
for doing or forbearing to do any official act.
So the word 'gratification'
need be stretched mean reward because reward outcome presumption which court draw factual premise there was payment gratification. This will again be fortified by looking at collocation of two expressions adjacent each > other like 'gratification or any valuable thing'.
lf acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward "
for doing or forbearing to do an official act, the word 'gratification'
must be treated in the context to mean any payment giving satisfaction public servant who received it."
'
"
.
ln fact, the above principle is no way a derivative but is a reiteration of the principle enunciated this Court Suraj Mal caseé where Court, had held mere recovery by itself cannot prove the charge of prosecution against the absence of any evidence prove payment bribe or show voluntarily accepted money.
Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthanl where similar view was taken.
26.
C.M.
Girish Babu casel was registered under Prevention of Corruption Act, 1988, Section 7 of which pari materia with Section Prevention Corruption Act, 1947. Section 2O of the 1988 Act raises a rebuttable presumption where the public Servant accepts gratification other than legal remuneration, which presumption is absent th'e 1947 Act.
Despite this, the
13$»?K ¢ ,Zl-v «Egy Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it paid would be sufficient convict despite presumption and, in fact, acquitted the accused that case.
15.
In matter B.
jayaraj v.
State of Andhra Pradesh (supra) it has been held by the Apex Court as under:
"7. insofar as the offence under Section 7 is concerned it is a settled position law that demand illegal gratification sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section unless it proved beyond all reasonable doubt voluntarily accepted the money knowing it be bribe.
The above position been succinctly laid down several judgments this Court.
By way illustration reference may be made decision C.M.
Sharma v.
State ofA.P. (2009) 3SCC 779 and C.M. Girish Babu v. CBI. 8.
In the present case, the complainant did not support the prosecution case insofar as demand concerned.
The prosecution examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused When complainant himself had disowned what had stated initial complaint (Ext.
P-ll) before LW there no other evidence prove 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 learned trial court as well as High Court was correct holding demand alleged be made as proved. The only other material available is the recovery of the tainted'CUrrency notes from the possession of accused.
In fact such possession admitted himself.
Mere possession recovery 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 illegal gratification, use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held be established.
9.
Insofar as presumption permissible be drawn under Section 2O 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 only on .proof acceptance illegal gratification that presumption can be drawn under Section 20
ti?"
@ 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 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.
16.
In the matter of R Satyanarayana Murthy v.
District Inspector Police, State Andhra Pradesh another (2015) 10 SCC 152 it has been held by the Apex Court as under:
20.
This Court A.
Subair v.
State Kerala, while dwelling purport of the statutory prescription Sections 7 and 13(1)(d) of the Act ruled (at SCC p.
593, para 28) prosecution prove charge thereunder beyond reasonable doubt like any other criminal offence should be considered be innocent till it established otherwise proper proof demand acceptance illegal gratification, which are vital ingredients necessary be proved to record a conviction.
21.
In State of Kerala v.
C.P. Rao 4 (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-a-vis the' same offences, held mere recovery itself, would .prove the charge against the accused and in absence any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 22.
ln a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it been underlined B. jayaraj (2014) 13 SCC 55, unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) (ii) Act.
lt been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse position as public servant obtain any valuable thing'or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held reI be an indispensable essentiality permeating mandate for an offence under Sections of the Act.
Qua Section Act, which - permits presumption as envisaged therein, it has been held while it is extendable only to an offence under Section and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification doing or forbearing do any \
,2:- official act.
Such proof acceptance illegal gratification, it was emphasised, could follow only if there was proof of demand.
Axlomatically, it was held absence proof demand, such legal presumption under Section 2O of the Act would also not arise.
23. The proof of demand of illegal gratification, thus, the gravamen of the offence under Sections 7 and 13(1) (d)(i) (ii) Act absence thereof, unmistakably charge therefor, would fail.
Mere acceptance any amount allegedly way illegal gratification or recovery thereof, dehors proof 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 illegal gratification would be fatal and mere recovery of the amount from person of the offence under Section or of the Act would entail his conviction thereunder.
25.
ln our estimate, hold basis evidence record that the culpability of the appellant under Sections 7 and 13(1)(d)(i) and (ii) has been proved, would be an inferential deduction which is impermissible law.
Noticeably, High Court had acquitted appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against same.
The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) and (ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification. 26.
In reiteration of the golden principle which runs through the web administration of justice criminal cases, this Court Sujit Biswas v.
State of Assam (2013) SCC 406, had held suspicion, however grave, cannot take the place of proof and the prosecution cannot afford rest its case realm of "may be"
true but has to upgrade it in the domain of "must be" true order steer clear any possible surmise or conjecture.
it was held, that the court must ensure that miscarriage of justice avoided if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
27.
The materials record when judged touchstone legal principles adumbrated hereinabove, leave no manner doubt prosecution, instant case, failed prove unequivocally, demand illegal gratification and, thus, we are constrained hold that it would be wholly unsafe sustain conviction of the appellant under Sections 13(1)(d)(i) and (ii) read with Section 13(2) of the Act as well.
result, appeal succeeds.
The impugned judgment and orderof the High Court is hereby
"'29set aside. The appellant is on bail.
His bail bond stands discharged. Original record be sent back immediately. 17.
Thus the settled legal position in the cases of like nature is that the presumption to be drawn under Section 2O is not an inviolable one. The charged with offence could rebut it either through the cross examination of the witnesses cited against him or adducing reliable evidence.
if fails disprove presmption, same would stick and then it can be held by the Court that the prosecution proved received amount towards gratification.
lt is sufficient if the accused succeeds in proving a preponderance of probability in favour of his case.
lt is not r'x necessary for'the prove his case beyond reasonable doubt or default to incur the verdict guilty.
Onus of proof lying upon the accused person prove his case preponderance probability.
As soon as succeeds in doing so, the burdent is shifted to the prosecution which still has to discharge its original onus that never shifts i.e.
establishing whole case guilt K, accused beyond a reasonable doubt.
18.
Undisputedly, right from beginning defence the appellant hasbeen that in all the schools of Mungeli tehsil Shala Vikas Samitis were constituted and those Samitis were authorised collect contribution from the guardians/parents of the students for maintenance of the school building, vide resolution dated 20.5.1988 Ex.
D-l and 15.5.1989 part of Ex.
D-1.
It is further not disputed that in respect of the school of
W 2 Si.
@¢ appellant where he was working as Head Master, being Secretary he was'fully authorised to collect the amount from students as also from their guardians/parents. Appellant successfully proved EX.
D-2 - receipts issued various persons who had given contribution towards Shala Vikas Samiti including the two complainants herein. ln respect of both the complaints, receipts of Rs.
50/- each were issued on 6.6.1989 vide Ex. D-2. On the same day yet another receipt was issued favour Nanku Singh (DW-2) which also evident of Ex. Ds2. Nanku Singh has categorically stated in his Court statement that he had paid Rs.
10/- to the Shala Vikas Samiti at the time when he had gone there to enquire of the supplementary examination his son.
Statement Nanku Singh further goes to show that on the date when he gave his contribution to the said Samiti, other two students had also come there withtheir parents asked issuance transfer certificate.
This defence witness further stated that those two persons gave Rs.
100/- each to the accused on which he issued the receipts of Rs. 50/- each and told them to refund the remaining amount after preparation of the transfer certificates, but before could do so, trap party apprehended him. Yet another defence witness Dhanush Singh Rajput (DW-3) has also stated that there was Shala Vikas Samiti school of village Rohra he was one its members and further that the said Samiti was authorised collect contribution from parents/guardians students. Accused/appellant has also taken specific plea
Lé~ his defence that he has been falsely implicated in the case at behest one Santosh Pandey - Maalgujar village as there was some old land related dispute between two.
After entering into witness box as DW-5 appellant has also taken the same defence. Most importantly, while answering questions No. 92, 251 and 253 at the time of recording of his statement under Section 313 of the Code Criminal Procedure categorically stated accepted the amount from the complainants as contribution to the Shala Vikas Samiti by issuing receipts of Rs. 50/- each but before he could refund the remaining amount, the trap party apprehended him:
Further, 2.6.1989 the department had issued show-cause notice appellant asking explanation regarding the complaint for demanding money for issuing transfer certificate and while replying to the same on 3.6.1989 vide Ex.
D-3 specific defence was taken him never demanded any illegal gratification from complaints and that as there was certain discrepancy in the result, some delay Occasioned issuance certificate.
19.
Thus the prosecution has utterly failed to prove that the appellant ever demanded or accepted any illegal gratification from complainants.
Rather, there ample evidence record to show that the appellant being the Secretary of the Shala Vikas Samiti was empowered collect contribution from guardians/parents students issuing requisite receipts as such money paid
gow A g @*'
complainants was for the Shala Vikas Samiti which is used for maintenance of the school building, but unfortunately before could return remaining amount, trap party apprehended him.
This fact been duly corroborated Nanku Singh (DW-l). The accused/appellant, other words, has succeeded inestablishing his defence by preponderance of prbability favour of his case. The Court below however considered evidence record its proper perspective while recording finding of conviction against accused/appellant under special Act.
Since prosecution proved its case beyond all reasonable doubt, benefit has to go to the accused.
20.
Accordingly,.
appeals are allowed, judgment impugned set aside and accused/appellant acquitted the charges levelled against him. As the accused/appellant already bail, no further order set him free etc, necessary. Bail bonds so furnished stand discharged. Sd/« Fritinker Diwaker Judge Jyotishi