State of Chhattisgarh Vs Dr. Nirwan Kumar Tiwari

Dr. Nirwan Kumar Tiwari, S/o Late Shri Aasharam Tiwari, aged about 58 years, Superintendent-cum-District Aayurved Officer, R/o Shikshak Nagar, Durg, C.G.

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		... Respondent
For State/Appellant	: Dr. Surendra Kumar	Dewangan, Panel
	Lawyer.
For Respondent	: Mr. Vivek Sharma, Advoc	ate.

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(Hon'ble Shri Justice Radhakishan Agrawal)

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CAV Judgment

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This appeal has been preferred by the State under Section 378(1) of the Code of Criminal Procedure, 1973, against the judgment dated 07.04.1999 passed by the learned Special Judge (Prevention of Corruption Act), Durg, M.P. (now Chhattisgarh) in Special Case No. 1/1998, whereby the respondent/accused was acquitted of the charges under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, the Act, 1988).

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Case of the prosecution, in brief, is that complainant/PW-5- Ramkhilawan Mishra was working as Assistant Grade-III in the District Ayurved Office, Durg, Chhattisgarh. On 28.06.1997, the respondent/accused, then posted

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as Superintendent-cum-District Ayurved Officer, transferred him from the Establishment Section to the Accounts Section. For reposting him to the Establishment Section, the accused allegedly demanded bribe of Rs.5,000/-, which was ultimately settled at Rs.4,000/- and after that, accused/respondent collected Rs.1,000/- as a grain advance of the complainant. On 22.07.1997, the complainant lodged a written complaint with the Lokayukt, pursuant to which, a trap was organized. The complainant carried tainted currency notes amounting to Rs.3,000/- (30 notes of Rs.100/- each), treated with phenolphthalein powder. It is alleged that the accused/respondent accepted the tainted notes and kept it, but upon noticing the trap party, threw the envelope towards the verandah . The envelope containing the alleged currency notes was recovered. Handwash and other articles were seized during investigation and a taperecording was also produced. Thereafter, an FIR (Ex. P-13) was registered against the respondent/accused.

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Statements of the witnesses were recorded and upon completion of the investigation, a charge sheet was filed against the respondent/accused before the competent trial Court. The accused abjured his guilt and sought to be tried.

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The trial Court, after hearing counsel for the parties and appreciating the evidence on record, vide impugned judgment, acquitted the respondent/accused of the charges levelled against him.

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Learned State Counsel would submit that the trial Court has erred in acquitting the accused/respondent despite the recovery of tainted notes and a positive phenolphthalein test. He would further submit that the testimony of the complainant, duly corroborated by official witnesses, clearly established the demand and acceptance of bribe by the

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accused/respondent and despite the availability of sufficient and credible evidence on record, the trial Court committed a serious error in law in acquitting the accused/respondent. Consequently, the impugned judgment is vitiated by perversity and illegality and is liable to be set aside.

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Learned counsel for the respondent would support the impugned judgment and submit that the alleged recovery of tainted money from an open place or verandah weakens the prosecution case. He would further submit that there are material contradictions and omissions in the statements of prosecution witnesses including complainant. He would also submit that the demand for bribe, which is a sine qua non for conviction under the Act, 1988, has not been proved beyond reasonable doubt. He would also contend that the tape-recorded evidence is inadmissible and the complainant’s conduct and service record make him an unreliable witness. He would also submit the trial Court has rightly appreciated the evidence on record, and its findings do not call for any interference in this appeal against acquittal. Reliance has been placed upon the decision of Supreme Court in the matter of Meena (Smt) W/o Balwant Hemke vs State of Maharashtra reported in (2000) 5 SCC 21.

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We have heard learned counsel for the parties and perused the record.

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The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal, which reads as under:-

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“25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to

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be disturbed only by thorough scrutiny on the accepted legal parameters.”

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Likewise, in the matter of Babu Sahebagouda Rudragoudar and others vs

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State of Karnataka reported in (2024) 8 SCC 149, the Supreme Court relying, on its own, judgments has held in paras 39 & 40 which read as

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under:-

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“39. This Court in Rajesh Prasad vs. State of Bihar¹ encapsulated the legal position covering the field after considering various earlier judgments and held as below: - (SCC pp. 482-33, para 29)

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“29.After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of 1 (2022) 3 SCC 471 acquittal in the following words: (Chandrappa case² , SCC p. 432, para 42)

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“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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2 Chandrappa v. State of Karnataka, (2007) 4 SCC 415

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1 (2022) 3 SCC 471

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.'”

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Further, in the case of H.D. Sundara v. State of Karnataka³ this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: (SCC p.584, para 8)

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“8.... 8.1. The acquittal of the accused further strengthens the presumption of innocence;

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8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;

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8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

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8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

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8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

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The question that now arises is whether the respondent/accused is the author of the crime in question.

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PW-5 Ramkhilawan Mishra, the complainant, has stated that he was working as Assistant Grade-III in the District Ayurved Office, Durg, Chhattisgarh. On 28.06.1997, the accused/respondent, who was posted as Superintendent-cum-District Ayurved Officer, transferred him from the Establishment Section to the Accounts Section. He has further stated that for reposting him to the Establishment Section, the accused allegedly demanded bribe of Rs.5,000/-, which was subsequently settled at Rs.4,000/-. Out of this amount, Rs.1,000/- was collected in the form of a grain advance. He has also stated that on 22.07.1997, he lodged a written complaint with the Lokayukt, pursuant to which, a trap was organized.

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3 (2023) 9 SCC 581

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Thereafter, he went to the chamber of the accused and took out Rs.3,000/from his shirt pocket. The accused/respondent initially asked him to place the envelope on the table but, after holding the envelope, returned it and told him to give the money after office hours. He has also stated that after office hours, he again handed over the envelope to the accused/respondent, who held the envelope, counted the amount of Rs.3,000/-, kept it in his shirt pocket firstly and later put it in his pant pocket. Thereafter, he immediately went outside and gave a signal, following which, the trap team entered the chamber of the accused/respondent. After that, the hands of all persons present there were washed with a solution of sodium carbonate and only his hands and that of accused/respondent turned pink. The investigation panchnama was marked as Exhibit P-7.

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PW-1 Sunil Kumar Sharma, one of the panch witnesses, has stated that on the date of the incident, at about 12:00 p.m., he accompanied the trap team to Durg. After about 15 to 20 minutes, PW-3 Pramod Kumar Goyal informed him that the complainant told him that the accused has returned the money and would accept it after office hours. Later, around 5 o’clock, PW-3 Pramod Kumar Goyal again informed him that the complainant has given the money to the accused. Then, they went to the chamber of the accused, apprehended him and asked him about the money, but the accused/respondent denied receiving it. Thereafter, a search of his chamber was conducted, but no money was found. He has also stated that one Lokayukt Officer, namely Kamal, informed them that an envelope was lying outside near the verandah . Following this, the accused was asked to lift the envelope, then accused lift the envelope and handed over to PW-3 Pramod Kumar Goyal. In cross-examination, PW-1 admitted that at the time of the trap proceedings, he was standing about 25–30 feet away from the

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spot and from that distance, he could not see what was happening inside the chamber. He further admitted that he did not witness the complainant handing over the money to the accused nor did he hear any conversation between them. On the contrary, he also admitted that PW-2 N.S. Kanwar, DSP in the Lokayukt Office, was the first who noticed the envelope lying on the ground and he instructed the accused to lift it. He further admitted that initially, the accused/respondent refused to lift the envelope, but he was compelled to lift the same.

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PW-2 N.S. Kanwar, DSP, has stated that he saw the accused/respondent throwing the envelope to which Driver- Mohan went there and informed about the envelope lying near verandah . However, instead of seizing it right away, the trap team searched the accused’s chamber and other places, and picked up the envelope much later. This unexplained delay in evidence creates doubt as to whether the recovery was genuine. In crossexamination, he also admitted that he did not mention in his police statement that he had seen the accused/respondent taking the bribe money.

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PW-3 Pramod Kumar Goyal, also one of the panch witnesses, has stated that at 5:00 p.m., the complainant entered the office and about five minutes later, the complainant gave a signal, upon which, all members of the trap party entered the Office. At that time, accused/respondent was not present inside. After that, they proceeded to Dr. Dubey’s chamber, where the accused was present. The accused was apprehended and questioned regarding the currency notes, to which, he denied having accepted any bribe. Thereafter, a search was conducted there, but no money was recovered. Subsequently, the accused’s chamber was inspected, but there

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also nothing was found. He has further stated that the currency notes were lying on the ground behind the hospital which was seen by Mohan, the driver. Thereafter, the accused was asked to lift the same, upon which, he refused, then he retrieved the currency notes himself. After that, the recovered notes were seized and the panchnama was prepared in his presence.

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In the matter of Meena (supra), the Hon'ble Supreme Court has held in

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para 11 which reads as under:-

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“11. …....Mere recovery of the currency note of Rs.20/denomination, and that too lying on the pad on the table, by itself cannot be held to be proper or sufficient proof of the acceptance of the bribe, in the peculiar circumstances of this case which lend also credence to the case of the appellant that it fell on the table in the process of the appellant pushing it away with her hands when attempted to be thrust into her hands by PW-1. The results of phenolphthalein test, viewed in the context that the appellant could have also come into contact with the currency note when she pushed it away with her hands cannot by itself be considered to be of any relevance to prove that the appellant really accepted the bribe amount. With such perfunctory nature of materials and the prevaricating type of evidence of PW- 1 and PW-3, who seem to have strong prejudice against the appellant, it would be not only unsafe but dangerous to rest conviction upon their testimony...........”

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Thus, in the light of the aforesaid decision of the Supreme Court, coupled with the evidence available on record, it is quite evident that there are material contradictions and omissions in the testimonies of PW5/Complainant Khilawan Mishra, PW-1 Sunil Kumar Sharma, PW-2 N.S. Kanwar, and PW-3 Pramod Kumar Goyal and their statements do not corroborate with each other to establish the fact of the bribe accepted by the accused/respondent. Furthermore, there is also a contradiction regarding who actually recovered the envelope, whether it was lifted by the accused/respondent under compulsion, by Panch Witness PW-3 Pramod Kumar Goyal, or by Mohan (the driver), who was never examined. This

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creates serious doubt about the recovery of the alleged envelope containing currency notes. Apart from this, the statement of the complainant (PW-5) reveals that he himself admitted to having approached the accused/respondent 8–10 times within a short span of 15 days, requesting reposting to the Establishment Section. This admission shows that it was the complainant who was repeatedly seeking favors from the accused for his reposting in Establishment Section. Further, the transcription of the alleged conversation (Ex.P-10) held between the complainant and the accused/respondent shows that they were discussing the matter with respect to the PPO/Pension of another person. The conversation also shows that the accused/respondent told the complainant that he (complainant) had accepted money from the person concerned for PPO/Pension work, and nothing was discussed between the accused/respondent and the complainant about taking alleged bribe from him regarding his reposting in the Establishment Section. Moreover, the recovery of currency notes from an open place/verandah accessible to all further weakens the prosecution’s case and no independent witnesses were associated with the trap proceedings. Furthermore, from the evidence of PW-9 Satish Dubey, the Investigating Officer, it is evident that the bottles containing the hand-wash solution were kept in his almirah from 22.07.1997 to 01.08.1997 without any proof of proper sealing. In such circumstances, the possibility of tampering with the evidence cannot be ruled out. Apart from this, the essential ingredients of demand and acceptance of a bribe by the accused/respondent have not been proved by the prosecution beyond reasonable doubt. The learned trial Court has elaborately discussed the evidence led by the prosecution and, after analyzing the entire record, came to the conclusion that the prosecution has failed to prove beyond

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reasonable doubt the demand and acceptance of a bribe by the accused/respondent and as such, acquitted the accused/respondent of the said charges leveled against him.

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After considering the material available on record as well as the elaborate judgment impugned passed by the trial Court and being very much conscious of the existing legal position that in an appeal against acquittal if two views are possible on the basis of the evidence led by the prosecution and the trial Court taking one view favouring the accused, reversal of the findings of acquittal by the Appellate Court taking the other possible view into consideration, is not permissible in law, we are of considered opinion that the judgment impugned acquitting the accused/respondent herein of the said charges is just and proper and does not call for any interference.

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Accordingly, this appeal by the State / appellant against the acquittal of the accused/respondent herein is hereby dismissed.

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Sd/-

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(Radhakishan Agrawal)

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Judge

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Akhilesh

State of Chhattisgarh v. Dr. Nirwan Kumar Tiwari

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State of Chhattisgarh v. Dr. Nirwan Kumar Tiwari

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