Allowed

Vijay Kumar Tiwari (Died and deleted) Through Lr v. State of Chhattisgarh

Chhattisgarh HC1 Sept 2025CRA/1033/2004

Case brief

AI extract

What is this about?

Appeal against conviction of a Sub-Tehsil employee for demanding and accepting a Rs.500 bribe for a certified copy. The court found demand not proved since the accused lacked authority to issue copies, recovery evidence was contradictory, and acquitted the deceased appellant setting aside the trial court judgment.

What did the court decide?

Impugned conviction and sentence set aside; deceased-accused acquitted of charges under Sections 7 and 13(1)(d)/13(2) Prevention of Corruption Act.

Vijay Kumar Tiwari (Died and deleted) Through Lr Vs State of… — Corruption | Chhattisgarh HC (2025)

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Reserved on : 02/04/2025 Pronounced on : 02/09/2025

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Cr.A.No. 1033 of 2004

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1 - Vijay Kumar Tiwari (Died And Deleted) Through Lr As Per Honble Court Order Dt. 08-03-2021.

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1.1 - Smt. Sushila Tiwari, W/o Late Shri Vijay Kumar Tiwari (Accused), aged about 72 Years House Wife, Resident of Adarsh Colony, Near Singh House, Old High Court Road, Bilaspur Thana City Kotwali Bilaspur (Chhattisgarh) Tahsil And District Bilaspur (Chhattisgarh),

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---- Appellant

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Versus

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State of Chhattisgarh Through Special Police Establishment, Lokayukta Office Bilaspur, District : Bilaspur, Chhattisgarh

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--- Respondent

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________________________________________________________________________ For the Appellants : Shri Akhil Mishra, Advocates. For State/ Respondent : Shri Ankur Kashyap, Dy. G.A..

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Hon'ble Shri Justice Sachin Singh Rajput CAV Judgment

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This appeal under section 374 of the Code of Criminal Procedure, 1973 (for short CrPC) was filed by the appellant – Vijay Kumar Tiwari who died during pendency of the appeal and his legal representative was brought on record. The instant appeal is presented against the judgment dated 19/11/2004 passed by the I Additional Sessions Judge (Special Judge), Bilaspur (C.G.), in

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Special Case No. 05/2002 by which the deceased/appellant has been

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convicted and sentenced in the following manner :

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Conviction		Sentence
Under Section 7 of the Prevention of Corruption Act	R.I. for Rs.500/- payment R.I. for 01	1 year and fine of and in default of of fine additional month
Under Sections 13(1) (d) read with Section 13(2) of Prevention of Corruption Act	R.I. for Rs.500/- payment R.I. for 01	1 year and fine of and in default of of fine additional month
Both the senten	ce to run c	oncurrently

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Facts of the case, in nutshell, are that, complainant – Shankar Lal Luniya (PW-4) R/o Village – Ghutku, made a written report (Ex.P/4) on 02/06/2001 to the Superintendent of Police - Lokayukt, Branch - Bilaspur that a case in respect of Government Pond is pending in Sub-Tehsil Office, Ganiyari. An application for obtaining the certified copy was made by the complainant to the Tehsildaar, Takhatpur on 27/04/2001, upon which Tehsildaar – Takhtpur called for the records from the O/o Sub-Tehsil, Ganiyari. The application was submitted by the complainant to the deceased/appellant on 04/05/2001 and he also obtained the receipt. The deceased/appellant demanded Rs.500/- from the complainant on 05/05/2001 on the pretext that after receiving the said amount he would prepare the certified copy and deliver it to him. Complainant on 29/05/2001 again requested the deceased/appellant to send the record upon which he demanded to bring Rs.500/- by evening on 02/06/2001 in Sub-Tehsil Office – Ganiyari. On the basis of said complaint, FIR was registered vide Ex.P/6. The proceedings for trap were carried out, the trap party went to the spot, five currency notes coated with philhellene powder of 100 denomination were given to the complainant after noting down the

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numbers thereof to be given to the deceased accused on demand, and a tape recorder with cassette was also given to the complainant for recording the conversation. The complainant was thereafter sent to the office of the deceased accused with an instruction to given signal at the time of giving the currency notes to the appellant deceased. On which, complainant went to the said office and the currency notes were handed over to the accused deceased. After taking the currency notes when the accused deceased started counting the same, the complainant gave the signal to the trap party standing outside. Accordingly, the trap party entered the office and recovered the said amount from the possession of the appellant deceased. Hands of the accused were washed in the solution of sodium carbonate which turned pink. The solution was preserved, and the currency notes on being matched were found to be the same as given tot he complaisant. Tape recorder with cassette was also seized. Thus after due investigation the charge-sheet was filed for the same offence as per the FIR followed by framing of charge accordingly.

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Prosecution in order to bring home the guilt of the deceased appellant, examined as many as 16 witnesses and exhibited 55 documents. Statement of the deceased accused under section 313 of the CrPC was recorded in which he denied the charge claimed trial. He also examined two persons namely Ganesh Das and Anubhav Dewangan as defence witnesses in support of his case.

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The learned trial court after due appreciation of evidence, convicted and sentenced the deceased appellant as stated above by the impugned judgment which is assailed in this appeal.

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Learned counsel for the accused/appellant vehemently argued that the

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prosecution could not bring home the guilt of the deceased/appellant beyond reasonable doubt. He further submits that the learned trial court has not appreciated the evidence available on record in its proper perspective and erroneously convicted him as detailed above. He submitted that there are several discrepancies with regard to case of the prosecution including the demand and acceptance of the bribe amount which has not been established by the prosecution. He submits that the transcript (Ex. P-11) of the conversation between the deceased appellant and the complainant itself was disbelieved by the trial court. He further submits that the deceased appellant was not competent to issue certified copies, hence there was no occasion for him to make demand of any illegal gratification from the complainant. He further submits that the complainant (PW-4) himself was the Sarpanch of the Village and he was well aware of the proceedings that the deceased appellant could not have issued the certified copy he was in need of. He submits that the complainant is in the habit of making false complainants against several Government Officials, therefore, it is evident that the deceased appellant has been falsely implicated. He submits that Onkar Prasad Mishra (PW-2) has stated that the application (Ex.P-2) said to have been given by the complainant for certified copy of the order is not mentioned in the office record. He submits that the trial Court has also given a finding that the money was kept on the file pad lying on the table, but no question to this effect has been put to the accused deceased while recording his statement under section 313 of the Cr.P.C., and therefore this piece of the evidence cannot be relied to uphold the conviction. He submits that to prove the case under sections 7 and 13(1) read with Section 13(2) of Prevention of Corruption Act demand and acceptance of illegal gratification is required to be established, which the prosecution has

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utterly failed to do. He further submits that the deceased appellant who unfortunately died during the pendency of the appeal be acquitted giving benefit of doubt and the appeal may be allowed. In support of his submissions, he placed reliance upon the judgment of the Supreme Court in case of B.Jayaraj Vs. State of A.P. reported in (2014) 13 SCC 55 and in case of C.M. Girish Babu Vs. CBI, Kochin reported in AIR 2009 SC 2022.

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Per contra, learned State counsel vehemently argued that the prosecution has been able to bring home the guilt of the appellant beyond reasonable doubt. He submits that the written complaint was made by the complainant (PW-4) which indicates that the demand was made by the appellant for transmitting the records from Sub-Tehsil – Ganiyari to Tehsil – Takhatpur for preparation of the certified copy. He submits that even if the appellant was not authorized to issue certified copy but however he was instrumental in sending the record from Sub-Tehsil – Ganiyari to Tehsil – Takhatpur for preparation of certified copy. Therefore, it cannot be said that the accused deceased had no role to play in preparation of the certified copy. He submits that mere different words being used by the complainant would not mean that the appellant has not demanded the bribe amount. He submits that the money was recovered from the table of the appellant deceased and even if such question was not put to him, from the evidence on record it is established that as the demand was made, money was delivered and when the hands of the trap party were washed the solution did not change and remained colorless but when the hands of the deceased/appellant was washed, it turned pink, therefore from the evidence gathered by the prosecution meritorious finding recorded by the trial Court does not require interference.

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Heard learned counsel for the parties, considered their rival submission

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and also perused the record with utmost circumspection.

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To constitute the offence of an illegal gratification, there are three essential ingredients (i) demand, (ii) acceptance and (iii) recovery.

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The Hon’ble Supreme Court in case of Satyanarayan Murthy v. District Inspector of Police, State of Andhra Pradesh and another reported in (2015) 10 SCC 152 observed as under :-

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“23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

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In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.”

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In another case of B. Jayaraj v. State of Andhra Pradesh (supra) Supreme Court has held as under:-

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“7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P., (2010) 15 SCC 1 and C.M. Girish Babu Vs. C.B.I., (2009) 3 SCC 779.

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In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.”

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In case of Dashrath Singh Chauhan v. Central Bureau of Investigation reported in (2019) 17 SCC 509 the Supreme Court observed as

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under:-

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“29) It is for the reason that in order to prove a case against the appellant, it was necessary for the prosecution to prove the twin requirement of “demand and the acceptance of the bribe amount by the appellant”. As mentioned above, it was the case of the prosecution in the charge that the appellant did not accept the bribe money but the money was accepted and recovered from the possession of Rajinder Kumar–coaccused (A-1).

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Since in order to attract the rigors of Sections 7, 13(2) read 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of “demand and acceptance of bribe money by the accused”, the proving of one alone but not the other was not sufficient. The appellant is, therefore, entitled for acquittal from the charges framed against him under the PC Act too. (See para 8 of M.K. Harshan vs. State of Kerala , (1996) 11 SCC 720)”

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Recently, in N. Vijayakumar v. State of Tamil Nadu reported in (2021)

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3 SCC 687 , reiterating the judgment of B. Jayaraj case (supra), it was held by the Supreme Court as follows:

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“26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI, (2009) 3 SCC 779 and in B. Jayaraj v. State of A.P., (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under

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Sections 7, 13(1)(d) (i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.”

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Having thus seen the aforesaid legal position, this Court now proceeds to examine the factual aspect of the matter.

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Complainant Shankar Lal (PW-4) has stated that on 04.05.2001 he had submitted an application before the deceased accused but the accused had demanded an amount of Rs. 500/- for doing the needful. When on 29.09.2001 complainant asked for the said copy, the accused/appellant repeated the said demand. Since the complainant did not want to give money to the accused, he went to the office of Lokayukt and made a written complaint to the Superintendent of Police regarding the demand made by the accused for said illegal gratification. It is worthwhile to mention here that the complainant has stated in paragraph 6 of his deposition that on the date of trap when he went to the office of the accused, he after taking money amounting to Rs. 500/-, he asked about the date on which the appliction was made. After the complainant told the date as 4.5.2001, he took out the application from his almirah and then wrote the case No. on it in his presence. However, no such case number alleged to have been mentioned on application (Ex.P-2) subsequently is appearing thereon. Thus the statement made by the complainant does not appear to be correct. Thereafter, the trap party was constituted, complainant was given five currency notes of 100 denomination coated

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with phenolphthalein powder and number of the same being noted down, for being given tot he accused on demand with an instruction to give signal while handing over the money to him. Accordingly, the complainant gave money to the accused and then gave signal to the trap party, which eventually apprehended the accused and seized money from him. His hands were washed in the sodium carbonate solution which turned pink. In cross examination, this witness has stated the same thing as in the examination in chief. Onkar Prasad Mishra (PW-2) who at the relevant time was working as Nayab Nazir in the Tehsil Office, Takhatpur has stated that the application given by the complainant for obtaining copy was seized from him. He has admitted that he had returned the application of the complainant saying that it was not carrying the complete details of the required information. To this effect, he also made a complaint to the concerned Tehsildar and then on his instructions he had forwarded the same. This witness has further stated that as the application given by the complainant was not containing complete information, he had asked him to mention the details of the information sought for. P.C. Singh (PW9) has stated that five currency notes of 100 denomination each were recovered from the pant pocket of the accused/deceased, which were found to be the same as given to the complainant mentioned in the Panchanama. He is also the witness of the procedural requirements meant for laying trap and followed in the case in hand, and thus has supported the case of the prosecution. Krishna Puri Goswami (PW-15) is also one of the members of the trap party who has stated that the accused deceased did not keep the money in his pocket, rather he had kept the it on the table when his hand was held by the trap party. Sudan Das Yadav (PW-11) Head Constable, R.P. Singh (PW-13) is the SP Lokayukt, Sita Ram Singh (PW-16) is the SDO (P) Bilaspur are the witnesses who formed the trap party, have described the manner in which the trap was conducted and thus supported the case

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of the prosecution.

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Thus as regards demand of illegal gratification in the case in hand, none of the witnesses has stated that the deceased accused had the authority to supply the copy sought for by the complainant, and since there was no authority to the accused, question of demand of any illegal gratification from the complainant does not arise. Further, the application made by the complainant for supplying the certified copy of a document has not been seized from the accused-deceased, rather it was seized from the possession of PW-2, who at the relevant time was posted as Nayab Nazir, in Tehsil Office, Takhatpur. The proof of demand of illegal gratification is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As regards recovery, there are contradictions in the evidence of the witnesses. PW-2 and PW-11 have stated that the money was recovered from the file pad kept on the table of the accused whereas according to PW-9 the recovery was made from the pant pocket of the accused. Thus there are serious contradictions as to the factum of seizure of the bribe amount. Even assuming for a moment that the recovery was made from the accused, since the demand has not been established to have been made by the accused, such recovery is not of much importance. The possibility of money being thrust in the pocket even without demand, cannot be ruled out. Furthermore, the task which the complainant wanted to get completed was not within the competence of the accused and therefore also the question of making any demand of illegal gratification does not arise. The accused/deceased in reply to question No. 34 of his statement recorded under Section 313 of the Code of Criminal

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Procedure has categorically stated that the copy being sought by the complainant was in the office of SDO Kota and he had no such record available. However, as the complainant was per force trying to put the bribe amount in his pocket therefore he had touched the same to return, and also shouted upon the complainant. Furthermore, the statements of the defence witnesses also go to show that the complainant came and tried to put the money in the pocket of the accused, but this fact has not been considered by learned trial Court.

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The golden principle which runs through the web of administration of justice in criminal cases, as held by the Supreme Court time and again is that the suspicion, howsoever grave it is, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture.

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Having thus seen the aforesaid factual and legal discussion, this Court is of the considered opinion that the prosecution has utterly failed to establish the three ingredients required for entailing conviction of an accused under the Prevention of Corruption which are – the demand, the acceptance and the recovery of illegal gratification from the accused. So also the trial Court has misdirected itself in appreciating the evidence adduced by the parties in the case, and thus abruptly recorded a finding of conviction of the accused-deceased. This of course cannot be sustained in law. Being all this, the impugned judgment is hereby set aside by allowing the appeal, and the deceased-accused is acquitted of the charge levelled against him. Consequences to follow.

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Ashish /J

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Digitally signed by ASHISH ASHISH TIWARI TIWARI Date: 2025.09.02 17:26:01 +0530

Vijay Kumar Tiwari (Died and deleted) Through Lr v. State of Chhattisgarh

Case brief

What is this about?

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Vijay Kumar Tiwari (Died and deleted) Through Lr v. State of Chhattisgarh

Case brief

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