Naresh Chand v. The State Of C.G.

HIGH COURT OF CHHATTISGARH BILASPUR Hon'ble Shri Justice Rajendra Chandra Singh Samant CRA No. 38 of 2000 Naresh Chand V f

Versus

The Stéte of Madhya Pradesh (now Chhattisgarh) £ u CAV JUDGMENT .Postfor lz /01/2017 Sd/- Rajendra Chandra Singh Samant Judge _11_/o1/2017 m'n

HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Apgeal No. 38 of 2000 Judgment Reserved on 07/1 212016 Judgment Delivered on z; [01/2017:

- Naresh Chand S/o Mahadev Samantrai, aged about years, Suspended Patwari, R/o Village Mahalpara, Saraipali, District Mahasamund (Chhattisgarh) ---- Appeliant VT

Versus

- 5Fhe State Madhya Pradesh (now State Chhattisgarh) through Special Police Establishment, Lokayukt Office, Raipur (Chhattisgarh) ---- Respondent ForAppeIIant :

Shri Praveen Das,','Advocate FOr Respondent/State :

Shri R.K. Jaiswal, Panel Lawyer I Hon'ble Shri Justice Raiendra Chandra Singh Samant C AV Judgment 1.

This appeal has been preferred against the judgment conviction and order of sentence passed by Special Court (under Prevention of Corruption Act) in Special Case No. 32/1 992 passed 20/11I2000, whereby convicted under Section 161 of Indian Penal Code and under Section 5 (1)(d) read with Section 5(2) Prevention Corruption Act, m'u s sentenced to undergo RI for one year along with fine of Rs. 1000/- in each offences with default stipulation.

2.

'The case of prosecution is this, that in May 1988 appellant \'_x\was posted as Patwari, Patwari Halka No.

'28, Amarkot, \- , /

-2Saraipali, District Raipur.

Complainant Sadhav Patel (PW-9) is resident of village Mundha under the jurisdiction of Police Station, Saraipaii.

He had built a brick kiln on his land for manufacturing 50000 number of bricks. Appevllant approached him and said, that he has illegally manufactured the bricks and demanded Rs. 500/- as bribe for giving him relaxation. After some bargaining appellant agreed to receive Rs.

150/- b'ribe and asked the complainant to come to him on 26/05/1988 in village Amarkot. 3.

Complainant Sadhav (PW-9) made written complaint i u Ex.P/8 before Special Superintendent Police, Vigilance Office, District Raipur on 26/05/1 988 . Witness B.S.

Bais (PW-6) summoned office Special Police Establishment Lokayukta, Raipur, on the same day.

In his presence the complaint by Sadhav Patel (PW-9) was verified and thereafter complainant produced one currency notes of Rs.

1OOI- and one currency note Rs.50/-, numbers these notes were recorded.

One Constable applied phenolphthalein powder these notes.

Pockets of complainant were searched phenolphthalein applied notes were kept in the upper pocket of his shirt, with instruction not to touch the currency notes and not to shake hands with anybody before giving bribe.

He was also instructed give signal by scratching his head after giving bribe. After this, a demonstration was done in presence of complainant and witness to show the reaction phenolphthalein powder with solution sodium carbonate, which explained them.

Packets \i sodium carbonate powder was prepared and sealed. A trap party

-3was constituted consisting of complainant Sadhav (PW-9), witness B.S.

Bais (PW-6), inspector, Constable Ishwar, Kanhaiya Lal and Inspector B.l.R Naidu.

preliminary Panchnama Ex.P/9 record ed.

4.

At about 10.30 A.M.

trap party arrived at village Amarkot where appellant was not present as he was gone to Saraipali and he also informed, that had instructed that a?

_ complainant be sent to Saraipali.

Trap party arrived at Saraipali Bus Stand.

Complainant Sadhav (PW-9) witness Kanhaiya "

u along with shadow witness B.S.

Bais (PW-6) went to Tahsil office at Saraipali. Complainant Sadhav (PW-9) found the appellant and had some conversation with him, during the conversation appellant asked for bribe money, complainanti took out phenolphthalein coated currency notes from his shirt pocket and kept them right 'hand ofvthe appellant. Appellant kept the currency notes pocket his full pant, meanwhile complainant gave the signal, seeing which all the members of the trap party arrived spot.

Members trap party introduced themselves appellant.

On asking about receiving the bribe money from the complainant appellant admitted about receiving the bribe money and keeping it in his left pocket of Mu full pant.

5.:

Solution of sodium carbonate was prepared, in which both hands of appellant was dipped and washed, colour solution changed pink which was preserved bottle. Again w \T i , solution was prepared, in which both the hands of witness B.S.

_4_ Bais (PW-6) were dipped, the solution remained colourless, which preserved sealed.

B.S.

Bais (PW-6) searched l r appellant and found Rs.

150/- in the left pocket of his full pant, which currency notes Rs.

100/- Rs.

50/-.

The recovered notes were matched with previously recorded number of notes in Preliminary Panchnama (EXP/9). The hands of the appellant was dipped the solution sodium carbonate, .

L 'colqur solution changed pink, which preserved sealed.

Recovered notes were dipped solution of sodium carbonate, the colour changed to pink, which was preserved and sealed again.

Sodium carbonate solution was prepared in which left side pocket of full pant belonging to appellant was dipped, the colour of solution changed to pink again preserved and sealed. 'in which hands of Further sodium carbonate solution was prepared complainant Sadhav (PW-9) were dipped, colour changed to pink, which was preserved and sealed. A trap panchnama Ex.P/10 was recorded.

6.

Recovered currency notes were seized vide EXP/11.

Full pant seized vide Ex.P/12.

Paper about seizure of bricks from the possession of complainant were seized vide Ex.P/13.

One un-numberd FIR EXP/15 recorded Special Police Establishment, Raipur basis which numbered FIR EXP/16 recorded Special Police Establishment, Bhopal 10/06/1988.

Seized articles preserved solutions of Sodium Carbonate in different bottles were \'i , sent for FSL examination. As per the FSL report Ex.P[1 7, presence /

-5phenolphthalein found solution contained preserved botties.

Sanction for prosecution vide Ex.P/14 obtained from Law Department, Madhya Pradesh. On completion of investigation, appeiiant was charge-sheeted. 7.

Appellant was charged under Section 161 of IPC and under Section 5(1)(d) read with 5(2)'of Prevention Corruption Act, 1947.

Appellant denied charges.

Prosecution examined g - witnesses; Appellant on examination under Section 313 of CrPC, has denied all the circumstances against him prosecution Q evidence pleaded, that he never demanded bribe for complainant.

It was submitted that complainant Sadhav (PW-9) had illegally manufactured bricks, which was seized by him and complainant directed deposit fine.

Complainant got annoyed and has falsely implicated the appellant. He has pleaded innocence and submitted that on the date of incident complainant tendered amount which for payment fine.

Appellant refused to take saying that he has to give receipt of the amount from his office, even then complainant forcefully kept the money in his pocket.

Appellant took out those currency notes from his pocket and was returning to complainant, who did not receive and for this reason he threw away the currency notes. Three witnesses have been examined as defence witness.

On completion of trial = impugned judgment has been passed in which appellant has been convicted and sentenced as mentioned in the first paragraph. 8.

The grounds in appeal are these, that the judgment of trial v.\ \".

Court is erroneous being not based any evidence

g6 -5prosecution beyond reasonable doubt.

It was not proved by the prosecution that demanded bribe from compiainant. Appeilant had no motive for asking illegai gratification statement of witnesses had been fuii contradictions o missions which has been ignored by the trial Court. Complainant had grievance against because had initiated action against thé compiainant regarding illegal m anufacturing of bricks and he had an interest to falsely implicate appellant.

Defence witnesses have proved this ground defehce which again ignored by trial Court.

Nont examination other witness Kanhaiya had been fatal prosecution.

lt case defence that had tendered the money for deposit of tine which was wrongly rejected by the trial Court.

Sanction for prosecution against the as defective and not granted by proper authority which vitiates w trial.

There is evidence record that complainant forcefully putting money pocket appellant.

which appellant took out and throw on the ground indicates that he never demanded bribe, these grounds it is prayed that impugned judgment be set-aside and appellant be acquitted , 9.

Counsel for the appellant has submitted that complainant Sadhav (PW-9) had illegally manufactured bricks and due to the action taken by his industry jeopardized, because of which complainant has falsely implicated the appellant. At the time of incident the money tendered by the appellant was for payment fine. As complainant was offering money

§1 -7appellant in a wrong place, appellant did not receive the same and threw away money.

This fact can be observed from evidence prosecution as well as evidence defence.

The investigation officer in-that case has not been examined, who had been a very essential witness and his non-examination had been fatal for prosecution.

It is clear from evidence that bottles containing solution were not intact and not kept safe custody duet'to which the report of Forensic Science Laboratory is doubtful. The sanction for prosecution Ex.

P/14 has not been granted by prOper' authority due to which the trial Court had no jurisdiction to entertain and try this truth.

10.

It is not in dispute, that appellant had been at the relevant time posted as Patwari, a Revenue Officer i.e.

public servant.

Gokul Prasad (PW-1) has stated that complainant Sadhav (PW-9) had manufactured bricks government lands.

Appellant inspected the spot and seized the manufactured bricks of which seizure memo Ex.P/1. 2 & 3 were prepared, which was given on Supurdnama.

Sannu Kotwar (PW-3) who has stated similarly.

Bandobast (PW-2) is also a witness to the inspection and seizure of bricks from the spot.

11.

Sadhav (PW-9) has stated, that at time inspection alleged that the bricks were manufactured illegally and demanded Rs. 500/- from him, later on he agreed to receive Rs.

150/- and asked him to pay him Saraipali.

He intended to get ...V\ appellant trapped accepting bribe, for this reason he approached

-3the ofrice at Raipur and got an application written by a Clerk in the same office and handed over in the office. On asking of Clerk, he produced Rs.

150/- in shape of one note of Rs.

100/- and one note of Rs.

50/-, on-which phenolphthalein powder was appiied those notes were kept his pocket with instfuction not touch them. The Clerk who applied the powder on currency notes, his hands washed he saw red colour solution, when he himself washed hands in solution there was no colour change. He states about'the recording preliminary Panchnama Ex.P/9.

In cross-'examination he has admitted, that appellant said that he has manufactured bricks without any permission for which he would have to pay fine and demanded him to pay tine. He further admits that he had not sought any permission for manufacturing bricks.

He admits that he got prepared one application through one Constable of the office and he is not aware of the contents of that application.

12.

B.S.

Bais (PW-6) stated that he summoned by Lokayukta office, Raipur morning at 6.30 a.m., where complainant Sadhav (PW-9) was present.

One complaint Ex.P/8 read out verified from complainant, after which complainant produced Rs.150/- which were notes of Rs. 100/- and 50/- these notes were kept in the pocket of shirt of the complainant * giving him instruction that after giving bribe he has to give a signal. This witness has not further given details about the contents panchnama (PW-9). With the permission of Court, the prosecutor K\:":f.\\ has asked leading questions, which he has answered that

§$ -9person who applied powder on notes, his hands were washed and the washingwas preserved as Article-A, but no question was put to him about the rest of the demonstration procedure conducted at the time of preliminary enquiry.

in cross-examination his statement regarding this part has remained un-rebutted. Investigating Ofticer Inspector B.l.R. Naidu could not be examined, as he had expired. Ex.P/9 was recorded and signéd by Inspector B.l.R.

Naidu. This has been proved by Inspector D.L. Singh (Retd.) (PW-8). 13.

Sadhav (PW-9) has further stated that after the preliminary £ .o inquiry, he along with trap party came to Amarkot where appellant could not be found, information was received about the availability Saraipali trap party came Saraipali.

Appellant was found present in Tahsil office.

H'e approached him and told, that he has brought the money and asked him to take it.

Appellant replied that he will take it later on, then he took appellant to the corner of Tahsil office and handed him the powdered notes, the appellant received the notes and kept them in pocket of his full pant. Thereafter he gave a signal by scratching his head, then the members trap parw approached caught hold accused-appellant.

In his presence the money was recovered from pocket of pant of appellant which were washed, colour changed into red.

His hands were also washed colour changed red.

Procedure panchnama Ex.P/10 was prepared and he affixed his signature.

In cross-examination he has denied, that he forcefully put the bribe money into the pocket of appellant. '

\..\I\-Ie has also denied that money was thrown away by the appellant

-10saying that he does not want any money. His statement about rest of the proceeding remained un-rebutted.

in cross-examination he has denied that since appeliant had got his bricks seized, he has falsely implicated him never demanded from him any bribe.

He has further denied that had asked for money saying that he will give the receipt of the money in Tahsil '

Office.

'

Shri B.S. Bais (PW-6) has stated that he and other members '4' '

14.

trap party approached appellant-accused, who § .o present in the Tahsil Office. Complainant handed over bribe money to the appellant which was-received by the appellant and kept pocket his pant, signal being given by complainant, Inspector B.I.R. Naidu and members ofthe trap'party caught hold the appellant. Hands of the appellant were washed in the solution of sodium carbonate the colour changed to pink, the solution was preserved, then hands of this witness was also washed in solution of sodium carbonate, the colour remained unchanged which was preserved and sealed. He searched the pocket of pant of appellant and found Rs.

150/-, which was washed in the solution of sodium carbonate colour changed into pink, this solution preserved sealed.

The pant pocket appellant was also washed in the solution of sodium carbonate, the colour changed into pink. The solution was also preserved and sealed. Procedure panchnama Ex.P/10 was recorded. The bribe notes were seized vide EXP/11 pant were seized vide EXP/12.

In crossexamination his statement has remained un-rebutted.

_11_ 15.

Inspector B.l.R.

Naidu, who conducted trap procedure could not be examined, because of his death.

Pothiram (PW-4) helped investigation getting preserved solutions examined by the FSL. Upendra Barik (Retd.

Patwari) (PW-5) has prepared spot map Ex.P/7.

Inspector D.L.

Singh (Retd.) (PW-8) proved signatures B.l.R.

Naidu (dead) on all the memos recorded, the preliminary Panchanama Ex.P/9, Trap Panchnama Ex£410, Seizure Memo Ex.P/11, P/13 and P/14, un-numbered FIR EXP/16 and also stated that one FIR was also recorded in Special Police' Establishment Bhopal.

16.

Satyanand Sahu (DW-1) has stated that he was present the office of Revenue inspector at Saraipali and going to hotel, at the same time one person came near the appellant and offered the take amount fine for bricks, which appellant said that he 'should deposit the amount in Tahsil office and get receipt for it.

Later on the same person came again and asked accept money person was putting the money in the pocket of appellant. Appellant removed his hands due to which, the notes fell down on the ground. At the same time, some other persons came there and caught hold the appellant, who introduced themselves as a party from Lokayukta office.

In cross-examination he has stated that he does not know *'

that on illegal manufacturing of bricks, it is the Mining Department Which takes action, but he has stated on his own, that report is given by Patwari to Tahsildar. He has denied that Sadhav (PW-9) we .Al, \\ \i \\\tendered the money which was accepted by appellant and kept in \\

-12pocket.

17.

Neelamber (DW-2) has stated that complainant were having hot talks between them on some other occasion, when he arrived at the spot. Later on came to know that implicated.

Kanhaiya (DW-3) has stated that complainant is his uncle. Complainant wanted to falsely implicate appellant, because has seized bricks '

manufactured by him from the spot, for which reason he went to the office at Raipur and gave a false complaint to the officer. This i e witness accompanied the appellant this event.

He has stated that he was also present at the time of incident, when complainant approached the appehant and tried to give him money. Appellant refused to take the money and told the complainant to deposit the fine and get receipt.

But complainant forcefully put the money the pocket of appellant: In cross-examination he has stated that he was present at the time of the preliminary proceeding and denied that appellant accepted the bribe money from the complainant and kept in his pocket. He has denied rest of the suggestions given by the prosecution.

18.

After going through evidence of the prosecution defence it is clear and admitted that appellant acted against the complainant 'Sadhav (PW-9) by conducting procedure seizure bricks manufactured by him.

Under Section Chhattisgarh Land Revenue Code Patwari circle is assigned the duty of maintenance of correction of land record and \s"\ such other duties as the State Government may prescribe. Patwari

i -13has authorization to collect the iand revenue and give receipt of it, there is no provision under Land Revenue Code which empowers the Patwari to proceed against the illegai manufacturing of bricks by any person. Manufacturing of bricks involves mining, i for which Mining Department of State is responsibie to controi the affairs and manufacturing of bricks is a concerned with Industries Department of the State.

Under' these circumstances, it is very clear gthat appeliant had no authority act proceed against the complainant as he has acted and proceeded. £ 19.

The statement compiainant Sadhav (PW-9) supporting witness B.S, Bais (PW-6) has clearly established that the complainant intended, approached and made a complaint the Lokayukta office at Raipur. After preliminary proceeding Ex.P/9 a trap procedure was conducted, in which appellant received the bribe amount from complainant and kept in the pocket of his pant, which was recovered in the trap procedure.

20.

The story of defence that appellant refused to take money and threw the money on ground is not believable, as it is very clear statement of B.S. Bais (PW-6) that he searched the appellant and money recovered from pant pocket appellant.

Similarly evidence of defence that complainant intended to falsely implicate the appellant is also not believable. The defence witness Satyanand (DW-1), who have stated to have been present at the time of trap proceeding, but no question was put to trap witnesses about his presence at the time of trap. Kanhaiya (DW-3) was cited as prosecution witness but not examined by prosecution.

His

-14statement for defence is total contradictory, hence unbelievable.

Under these circumstances it is very clear that defence story is made up has no force probability.

Hence, defence evidence as appreciated and rejected by the trial Court does not suffer from any infirmity which has been rightly rejected by the trial Court.

.

21».

Appellant has relied on judgment of this Court in Baraturam , "

1'"

t Verma v.~ State Chhattisgarh,

(2) CGLRW 322, which it held, that prosecution is required prove '

£ 'demand of illegal gratification', which is sine qua non for eviction mere acceptance shall not be ground for holding conviction.

Reliance has been placed in judgment of Nohar Singh Sahu v.

State of C.G., 2013 (1) CGLJ 473 in which Cdurt has held, that demand and acceptance of bribe by the accused was not proved by prosecution, that case complainant turned hostile'.

V Similarly reliance has been placed in V.

Venkata Subbarao v.

State, (2006) 13 SCC 305 wherein the Apex Court has held, that merely basis acceptance demand cannot be presumed. The judgment of Apex Court in B. Jayaraj v. State of A.P., Criminal Appeal No. 696 of 2014 decided on 28/03/2014 is also the same point that proof of demand is essential cases of recovery of money in trap procedure. 22.

In such cases, usually the proof of demand is very limited.

Firstly, statement complainant establishes that there is demand, secondly, acceptance bribe by accused persons confirms evidence demand.

It is case which

3?]'1 -15complainant had stated that appellant demanded from him money in the form of bribe, for the purpose of giving him relief from the action taken by him, though he had no authorization to act in such manner.

The ground defence that money tendered by complainant was for payment of fine is totally without substance.

For recovery of fine a case about breach of any provision of law has to be initiated at first and by a lawful order of a person having V authority can make an order for payment of fine subject provisions of law concerned.

lf any proceeding was drawn under the prdcedure of"law for payment of fine by the complainant. then o the copy of record of such proceeding could have been produced in defence, mere oral submission is of no consequence. 23.

It was submitted by appellant that there was no motive demand bribe, this submission has also no substance, it is clearly found that h'ad no authority proceed against the complainant even then he proceeded, only purpose of such *i proceeding seems be very clear demand illegal gratification.

Non~examination Investigating Officer remaining independent witness also does not effect the credibility of the witnesses who have been examined by the prosecution. It is the quality of the evidence which has to be looked into and not the quantity of evidence as requirement of proof. 24.

This objection has been raised as well, that seal preserved articles i.e.

bottles of solution were not intact, no such objection was raised before the trial Court and no such question \e \\was put witnesses examined before trial Court.

.

-16Constable Pothiram (PW-4) took charge of the bottles containing solutions for sending them to FSL Laboratory, has not been asked about the intactness of seais of bottles his cross-examination.

Hence, this ground of defence is totaily without basis. 25.

Lastiy, the ground appeal that no proper iegai sanction was obtained for prosecution of appeiiant is aitogether baseiess, the sanction for prosecution vide Ex.P/14 is on record, which has ¢ 'duiy~ proved.

in what manner the sanction is improper and been affects the legality or regularity of the trial conducted against the - i Q has not been made clear.

Presence sanction prosecution itself is sufficient valid for Court take cognizance to conduct the trial. The sanction was drawn properly or not is not a question to be decided by the trial Court. Hence, this ground of defence also fails.

26.

After considering all aspects this case for the reason aforementioned, it is found that this appeal is without any merits, hence the appeal is dismissed accordingly. Sd/- i Rajendra Chandra Singh Samant Judge ti r ilm Kamde