Criminal Appeal No. 1743 of 1997. Case: Leela Bai and Ors. Vs State of M.P.. Chhattisgarh High Court
| Case Number | Criminal Appeal No. 1743 of 1997 |
| Counsel | For Appellant: Shri Avinash Singh, Advocate and For Respondents: Shri Bhasker Payashi, Panel Lawyer |
| Judges | Manindra Mohan Shrivastava, J. |
| Issue | Criminal Law |
| Citation | 2013 (1) CGLJ 332, 2013 (2) Cri 276 (Chh) |
| Judgement Date | November 09, 2012 |
| Court | Chhattisgarh High Court |
Judgment:
Manindra Mohan Shrivastava, J.
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This appeal is directed against the judgment of conviction and order of sentence dated 1.8.1997 passed by learned Special Judge, Raipur, in Special Case No. 138/91, whereby and where-under the deceased appellant B.L. Dharshan is held guilty of commission of offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short "the Act of 1988") and sentenced to undergo RI for 1 year and fine of Rs. 1,000 under Section 7 and RI for 1 year and fine of Rs. 1,000 under Section 13(1)(d) read with Section 13(2) of the Act of 1988. In default of payment of fine on both count, additional SI for 3 months. Both the sentences have been directed to run concurrently. Prosecution story, as unfolded from the records of the case and judgment of the learned trial Court, is that complainant Premlal Verma (PW2) submitted application on 25.4.1988 for supply of copy of revenue records relating to land belonging to his father before the Tahsildar, on which, order was passed directing appellant/ accused to supply copies. When complainant approached the appellant, bribe of Rs. 100 was demanded for supply of copy. As the complainant was not willing to give bribe, complaint in Ex.P2 was filed in the Vigilance Office. Taking cognizance of the report, panch witnesses were called. Currency notes produced by the complainant were tainted with phynolpthelein powder and their numbers were noted. Demonstration of chemical reaction of phynolpthelein powder with sodium carbonate was given to the complainant in the presence of panch witnesses Arjun Singh Sisodia (PW3) and Sangram Singh (PW4). Tainted currency notes were kept in the pocket of the complainant with instructions not to touch it before handing it over to the appellant on demand. The pre-trap proceedings were reduced in writing by way of pre-trap panchnama in Ex.P3. The trap party proceeded to the house of the appellant. Further case of the prosecution is that the appellant came out of his house and when bribe money was demanded and accepted by him, trap team arrived at the spot. According to prosecution, though the appellant accepted bribe money, but, having seen the vigilance team, threw the same on the ground. Currency notes were lifted by one of the panch witnesses and seized vide seizure memo Ex.P4. The relevant documents relating to supply of revenue records were also seized vide Ex.P5. Hands of the appellant, complainant were washed in the solution of sodium carbonate and according to prosecution, it turned pink. Handwash collected were kept and sealed in bottles. FIR (Ex. P7) was lodged and investigation was carried out. The sealed bottles were sent to Forensic Science Laboratory (FSL) Sagar and report (Ex.P9) was received from FSL, which contained a report showing traces of phynoipthelein, found in the handwash of the appellant and complainant both. Spot map was prepared in Ex.P10. After obtaining sanction for prosecution vide Ex.P1 and completion of investigation, charge-sheet was filed on 26.7.1991. On the basis of material contained in the charge-sheet, learned trial Court framed charges against the appellant alleging commission of offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act of 1988. The appellant abjured guilt and demanded trial.
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In order to prove its case, prosecution examined as many as 9 witnesses. Appellant was examined by the Court in respect of the incriminating evidence and circumstances appearing against him. Appellant denied and came out with defence that complainant was insisting on issuance of copy of khasra entries by recording name of the complainant alongwith the name of his father, which was refused. Therefore, the appellant has been falsely implicated. In order to substantiate his defence that he had not accepted bribe, but an attempt was made to thrust the same in his hands, appellant examined Mohit Ram (DW1), as a sole defence witness.
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Relying upon the case of the prosecution and disbelieving the defence of the appellant, the learned trial Court held the appellant guilty for commission of offence alleged and sentenced him as described above, against which, this appeal has been preferred.
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Assailing the correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant argued that the entire criminal proceedings and impugned conviction are vitiated as the trial Court committed serious illegality in framing charges under the provision of the Act of 1988, whereas, the incident is alleged to be happened on 9.5.1988 i.e. prior to coming into force of the Act of 1988. According to him, at the time of alleged commission of offence, earlier Act namely the Prevention of Corruption Act, 1947 (for short "the Act of 1947") was in force and the appellant could not be tried much less convicted for commission of offence under the Provision of the Act of 1988, which came into force subsequent to the alleged commission of offence and thus the conviction is violative of constitutional protection guaranteed under Article 20(1) of the Constitution of India.
Learned counsel further argued that serious prejudice has been caused to the appellant because learned trial Court, even though was inclined to impose lesser punishment, it was by operation of stringent provision contained under the Act of 1988, which resulted in imposition of sentence of one year under Section 7 of and one year under Section 13(1)(d) read with Section 13(2) of the Act of 1988, whereas, there is no minimum sentence prescribed under the Act of 1947. Learned counsel also argued that learned trial Court committed serious illegality and thereby serious prejudice was caused as presumption under Section 20 of the Act of 1988 has been drawn to hold the appellant guilty of alleged offence, whereas, no such presumption is available in respect of offence under the Act of 1947.
Learned counsel for the appellant then urged that the prosecution has failed to prove demand beyond reasonable doubt, as in the fact and circumstances of the present case, independent corroboration of the story of demand was necessary to prove the case of the prosecution, particularity when there is no independent corroboration of the story of acceptance, currency notes were not recovered from the possession of the appellant and defence witness has deposed that the appellant refused to accept the bribe offered by the complainant. It was also argued that even according to the prosecution, tainted, money was not recovered from the possession of the appellant, but the currency notes were found lying on the road. Learned counsel further argued that in the absence of proof of demand, mere recovery could not be validly made a basis for conviction of the appellant. He also submitted that unless demand is proved and currency notes are recovered from the possession of the appellant, no presumption under Section 20 of the Act of 1988 could be drawn. It has also been argued that otherwise also, provision of the Act of 1988 have no application, as at the time of commission of offence provision of the Act of 1947 is applicable. In support of his submission, learned counsel for the appellant relied upon the judgments in the cases of Dataram Banjare v. State of Chhattisgarh 2011 Cri. L.J. 2013; Jagan M. Seshadri v. State of Tamil Nadu AIR 2002 SC 2399; M.W. Mohiuddin v. State of Maharashtra (1995) 3 SCC 567; Banarsi Dass v. State of Haryana 2010 AIR SCW 2282; R.S. Kalakapur v. State of Karnataka 1994 Cri. L.J. 2696, and Arun Kumar Pandey v. State of M.P. 2011 (1) C.G.L.J. 99
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On the other hand, learned counsel...
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