Ganesh Ram (Ganesh Rao) Shendey (Now Dead) through Spouse Smt. Gopikala Shendey Vs the State of M.P.

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(Cr.A.No.3324/1999)

Digitally signed by 2025:CGHC:30793 SISTA SISTA SOMAYAJULU SOMAYAJULU Date: 2025.07.09 11:05:29 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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AFR

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CRA No. 3324 of 1999

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(Arising out of judgment dated 6-12-1999 passed by the Special Judge under the Prevention of Corruption Act, Raipur in Special Case No.11/1992)

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Ganesh Ram (Ganesh Rao) Shendey (now dead), through Spouse Smt. Gopikala Shendey, W/o Late G.R. Shendey, Aged about 70 years, R/o Pachpedi Naka, Lakshan Kuti, Near Tanya Palace, Police Station Tikrapara, Raipur, District Raipur (C.G.)

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... Appellant

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versus

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The State of M.P. (now the State of C.G.), through Police Establishment, Loka Ayukya Karyalaya, Bhopal, Branch Raipur (M.P.) (now C.G.)

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... Respondent

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For Appellant : Mr. Sunil Pillai, Advocate. For Respondent/State : Mr. Rahul Tamaskar, Government Advocate and Mr. Amit Buxy, Panel Lawyer.

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Hon’ble Shri Justice Sanjay K. Agrawal

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Judgment on Board

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04/07/2025

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Feeling aggrieved and dissatisfied with the judgment of conviction recorded and order of sentence awarded dated 6-12-1999 passed by the Special Judge under the Prevention of Corruption Act, Raipur in Special Case No.11/1992, the sole appellant Ganesh Ram Shende (now deceased) being represented by his wife Smt. Gopikala Shende, had

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(Cr.A.No.3324/1999)

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preferred this appeal under Section 374(2) of the CrPC calling in question the legality, validity and correctness of the same by which he was convicted for offence under Sections 7 & 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the PC Act’) and sentenced to undergo rigorous imprisonment for three years & pay fine of 2,000/-, in default of payment of fine to further undergo₹ additional simple imprisonment for three months, on both the counts with a direction that both the sentences shall run concurrently.

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Case of the prosecution as unfolded during the course of trial and accepted by the trial Court is as under: -

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On 8-4-1990, Jaitram, S/o Ghasiya Sahu, aged about 45 years, R/o Thurikona, Police Station Basna, lodged an FIR against Sahniram, S/o Bisetram and his two sons namely, Nakul & Bheem, R/o Village Thurikona, Police Station Basna, alleging the date of incident to be 7-41990 at 7.30 p.m., which was registered under Crime No.90/1990 vide Ex.P-1 in the Crime Register by the Station House Officer i.e. the present appellant – Ganesh Ram and immediately thereafter, on the same day, since the offence under Section 324 read with Section 34 of the IPC was bailable at that point of time, the three persons namely, Sahniram, Nakul & Bheem were released on furnishing personal bond finding the offence to be bailable by the appellant herein which was duly rerecord in the roznamcha sanha No.341/9-4-90 vide Ex.P-21. Thereafter, one of the three accused persons in Crime No.90/1990

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(Cr.A.No.3324/1999)

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registered for offence under Section 324 read with Section 34 of the IPC, who was released on bail namely Bheemlal Sahu, on 10-4-1990 lodged a complaint to the Superintendent of Police, Lokayukta, Raipur that though his brother Nakul and his father Sahniram were released on bail, but for releasing him (Bheemlal), 1,000/- was demanded₹ and he was called back with an amount of 1,000/- on 10-4-1990 in₹ the police station which he does not want to give and therefore he came to the Office of the Lokayukta with the said amount pursuant to which the wheels of trap proceeding started moving and trap proceeding was initiated and preliminary panchnama was prepared vide Ex.P-3 and thereafter, trap panchnama was prepared vide Ex.P-4 in presence of Mr. P.K. Shrivastava & Mr. R.S. Mishra and currency notes were seized vide Ex.P-5 in presence of the aforesaid two witnesses and the appellant was found accepting 1,000/-. ₹ The trap party entered into the office of the appellant. After introducing themselves, hands of the accused were caught hold by the trap party. Solution of sodium carbonate was prepared. Hands of the appellant were washed with solution of sodium carbonate which turned into pink colour. Currency notes were took out by the trap party. Numbers of currency notes were tallied with primary panchnama and they were found correct. Thereafter other necessary investigation was completed and sanction for prosecution was obtained vide Ex.P-11. After investigation, charges were prepared for the aforesaid offences.

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(Cr.A.No.3324/1999)

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The prosecution, in order to prove the offence against the appellant, examined as many as 10 witnesses and brought on record 21 documents Exs.P-1 to P-21. The defence has neither examined any witness nor exhibited any document in support of its case.

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The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellant herein as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred.

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Mr. Sunil Pillai, learned counsel appearing for the appellant, would submit that complainant Bheemlal Sahu, his father Sahniram and his brother Nakul were arrested on 8-4-1990 duly recorded in roznamcha sanha Ex.P-21 and they were immediately released on bail on furnishing personal bond of ₹ 2,000/- each, as the offence was bailable at that time and as Kubu, S/o Kumharu Binjhwar, stood as guarantor and complainant of the offence (Crime No.90/1990) was sent for medical examination and as such, there was no demand made and since action was not taken on the complaint of one of the accused therein namely Bheemlal Sahu (PW-9), he fabricated a false story to implicate the appellant herein as a counterblast and he made complaint on 10-4-1990 and visited personally the office of the Superintendent of Police, Lokayukta, Raipur and made false report against the appellant pursuant to which the wheels of investigation started running and he was illegally trapped, neither money was

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(Cr.A.No.3324/1999)

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recovered nor it was proved in accordance with law and consequently, he was convicted by the trial Court. Meanwhile, during the pendency of appeal, the appellant also died. As such, it is a clear case where the appellant was falsely implicated and convicted as there was no recovery of tainted money from him. Therefore, the appellant is entitled for acquittal.

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Mr. Rahul Tamaskar, learned State counsel would oppose the appeal and submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt, therefore, the appeal deserves to be dismissed. He would further submit that though tainted money was recovered on 10-4-1990, it was for releasing Bheemlal (PW-9) on bail, therefore, it has a close connection with the alleged charged offence, as such, merely because he was released on bail on 8-4-1990 and the complaint was lodged on 10-4-1990, it would not absolve the original appellant from his criminal liability and, therefore, the appeal deserves to be dismissed.

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I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The original appellant was charged for offence under Sections 7 & 13(1) (d) read with Section 13(2) of the PC Act. Section 7 of the PC Act as it stood on the date of offence, states as under: -

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(Cr.A.No.3324/1999)

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“ 7. Public servant taking gratification other than legal remuneration in respect of an official act .—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.

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Explanations .—(a) “Expecting to be a public servant”. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

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(b) “Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money.

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(c) “Legal remuneration”. The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

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(d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

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(Cr.A.No.3324/1999)

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(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.”

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10.A careful perusal of the aforesaid provision would show that in order to

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establish an offence under this Section, it is necessary to prove that the public servant accepted or obtained or agreed to accept or attempted to obtain illegal gratification as a motive or reward for doing or for forbearing to do an official act or for showing any favour or disfavour to any person or for rendering any service or disservice to any person with

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a public servant as such. (See Dalpat Singh and another v. State of Rajasthan 1 and Bhanuprasad Hariprasad Dave and another v. The State of Gujarat 2.)

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Similarly, Section 13(1)(d)(i) of the PC Act states as under: -

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“ 13. Criminal misconduct by a public servant .—(1) A public servant is said to commit the offence of criminal misconduct,—

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(d) if he,—

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(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or”

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At this stage, it would also be appropriate to notice Section 20 of the PC Act, which provides for presumption where public servant accepts

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1 AIR 1969 SC 17

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2 AIR 1968 SC 1323

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(Cr.A.No.3324/1999)

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gratification other than legal remuneration. Section 20 of the PC Act which stood as on the date of offence, states as under: -

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“ 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 (1) or section 13 it is proved that an accused person has accepted or obtained or has 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 is proved, that he accepted or obtained or agreed to accept or attempted to obtain that 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 for a consideration which he knows to be inadequate.

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(2) Wherein any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that 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 for a consideration which he knows to be inadequate.

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(3) Notwithstanding anything contained in sub-sections (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.“

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A careful perusal of the aforesaid provision would show that what the

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prosecution has to prove before asking the Court to raise a presumption against an accused person is that the accused person has received a ‘gratification other than legal remuneration’.

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Page 9 of 15

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(Cr.A.No.3324/1999)

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The Supreme Court recently in the matter of State of Karnataka v.

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Chandrasha 3, while dealing with Section 20 of the PC Act, held that Section 20 would come into operation only when there is no nexus

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between the demand and the action performed or sought to be performed and observed as under: -

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“23. … Section 20 would come into operation only when there is no nexus between the demand and the action performed or sought to be performed. But, when the fact of receipt of payment or an agreement to receive the gratification stands proved, there is a clear case of nexus or corroboration and the presumption itself is irrelevant. Section 20 gets attracted when it is proved that the public servant has accepted or agreed to accept any gratification other than legal remuneration and in that case, presumption is that it is the motive or reward for any of the acts covered under Section 7, 11 or 13(1)(b) of the Act. ...”

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Similarly, their Lordships of the Supreme Court in the matter of Neeraj

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Dutta v. State (Government of NCT of Delhi) 4 held as under: -

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“66. Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression “shall be presumed” in subsection (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act, etc. if the condition envisaged in the former part of the Section is satisfied. The only condition for drawing a legal presumption under Section 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification . The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification.”

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4 (2023) 4 SCC 731

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3 2024 SCC OnLine SC 3469

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Page 10 of 15

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(Cr.A.No.3324/1999)

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Their Lordships while clarifying the presumption under Section 20 of

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the PC Act, observed as under: -

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“88.8. ( h ) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5( e ), above, as the former is a mandatory presumption while the latter is discretionary in nature.”

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After having noticed the legal provisions as well as their interpretation

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and the principles as laid down by their Lordships of the Supreme Court in this regard, it is quite vivid that in the instant case, charges

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framed against the appellant herein state as under: -

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ÞizFke& fnukad 10&04&1990 dks Fkkuk cluk esa rqe Fkkuk izHkkjh cluk dh gSfl;r ls vFkkZr yksd lsod gksrs gq, vius yksd lsod ds dRrZO; djrs gq, Hkheyky lkgw vkRet lkguhjke xzke VwVhdksuk ls Fkkuk cluk esa mlds vkSj mlds HkkbZ udwy ds fo:) ntZ tqeZ Ø0 90@90 /kkjk 324 Hkk0n0fo0 esa mUgsa tekur ij fjgk djus ds fy;s oS/k ikfjJfed ls fHkUu vFkkZr fj’or esa 1000@& :0 dh ekax fd;s rFkk fj’or esa mDr jkf’k mlls izkIr fd;kA ,slk dj rqeus Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 dh /kkjk 7 ds rgr naMuh; vijk/k fd;kA

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f}rh;& mDr LFkku ij] mDr vof/k esa rqe Fkkuk izHkkjh cluk dh gSfl;r ls vFkkZr yksd lsod gksrs gq, voS/k :i ls Hkheyky lkgw ls fj’or esa 1000@& :0 izkIr dj vijkf/kd nqjkpj.k fd;kA ,slk dj rqeus Hkz"Vkpkj fuokj.k vf/kfu;e dh /kkjk 13¼1½¼n½¼1½ dk mYya?ku dj mlh vf/kfu;e dh /kkjk 13¼2½ ds rgr naMuh; vijk/k fd;kAÞ

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A careful perusal of the charges would show that on 10-4-1990, the

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original appellant herein having been posted in Police Station Basna as Station House Officer i.e. a public servant, in performance of his legal duty in connection with Crime No.90/1990 for offence under Section 324 of the IPC, in order to release complainant Bheemlal Sahu (PW-9)

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(Cr.A.No.3324/1999)

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on bail, obtained 1,000/- gratification other than legal remuneration₹ and thereby committed the offence under Section 7 of the PC Act and also committed criminal misconduct under 13(1)(d)(i) of the PC Act which is also punishable under Section 13(2) of the PC Act. However, as per the document filed by the prosecution, the story is otherwise. Admittedly, offence under Section 324 read with Section 34 of the IPC was registered under Crime No.90/1990 vide Ex.P-1 against complainant Bheemlal Sahu (PW-9), his brother Nakul – not examined and his father Sahniram – not examined, at the instance of Jaitram on 8-4-1990 for the incident which took place on 7-4-1990 at 7.30 p.m. and on the same day, after arrest having been made as recorded vide Ex.P-2 which was proved by O.P. Dubey (PW-10), all the three persons including complainant Bheemlal Sahu (PW-9) were released on bail on furnishing personal bond duly recorded in the roznamcha sanha Ex.P21, which states as under: -

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Þ/kkjk 324@34 rk0 fg0 fujh{k.k ?kVuk --- iqNrkN izkFkhZ cuke xokgu tIrh vkjksihx.k is’k djus ij ,d Vaxyh ykVh vijk/k lcqr fxj0 vi0 3 uQj fjgk tek0 eqp0 ij foospuk tkjh }kjk T.I. 'ks.MsÞ

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18.Thereafter, complainant Bheemlal Sahu (PW-9), his father Sahniram & brother Nakul were released on bail and the victim of that case namely, Jaitram Sahu was subjected to medical examination and information was also sent to the jurisdictional Magistrate. As such, on 8-4-1990, immediately after arrest, complainant in this case Bheemlal Sahu (PW-

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9), his brother Nakul and father Sahniram were released on bail on

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Page 12 of 15

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(Cr.A.No.3324/1999)

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furnishing personal bond, as at that point of time, offence under Section 324 read with Section 34 of the IPC was the bailable offence. Therefore, as per the admitted document produced on behalf of the prosecution, it is quite vivid that the complainant along with his father and brother was released on bail immediately after their arrest since the offence being bailable, as recorded in roznamcha sanha Ex.P-21 and two days thereafter, the complainant appeared physically before the Superintendent of Police, Lokayukta, Raipur and made complaint that the original appellant herein demanded 1,000/- and called him₹ on 10-4-1990 to the police station which he does not want to give and wanted the appellant to get him trapped. The complainant also complained that he also made oral report to Mr. Shende/SHO, but he did not accept the same and then he gave written report to Inspector Tiwari which was given to the present appellant and thereafter, the appellant along with Tiwari, Jaitram & Kaushal went to Village Bhutikona for inquiry.

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The question is, whether the appellant had demanded illegal gratification for releasing Bheemlal (PW-9) on bail on 10-4-1990?

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The fact remains that Bheemlal (PW-9) was already released on bail on 8-4-1990 on furnishing personal bond duly recorded in Ex.P-21 and therefore there was no occasion or reason for the appellant to make demand of 1,000/- as illegal gratification for releasing him on₹ bail. As such, since the appellant had already released Bheemlal (PW-

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(Cr.A.No.3324/1999)

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9), his father and brother on bail immediately on 8-4-1990 itself, the question of money having been demanded on 10-4-1990, as framed in the charge, does not arise. Therefore, the official act of releasing Bheemlal (PW-9) had already been performed by the appellant on 8- 4-1990 itself and no charge has been framed that on 10-4-1990, the appellant demanded any sort of money for releasing Bheemlal (PW-9), as he had already been released on bail on 8-4-1990 itself on furnishing personal bond.

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In this regard, the decision of the Punjab and Haryana High Court in the matter of Deep Chand v. The State 5 may be noticed herein profitably in which the appellant therein granted bail to the complainant without demanding tip and tip is said to have been demanded after furnishing bail. The Punjab and Haryana High Court relying upon its earlier decision in the matter of Nitya Nand Prem Lal v. The State 6 held that no offence under Section 161 of the Penal Code, 1860 and Section 5(2) read with Section 5(1) of the Prevention of Corruption Act, 1947 is made out. It was observed as under: -

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“3. … In my view the present case is more or less of the some type as was decided by the Bench. It is true that there is nothing to show that it was customary to give a tip after bail has been taken in a bailable warrant but all the same on the evidence of the complainant himself the appellant never demanded any amount by way of reward or gratification before he finished the entire work of granting bail. It was only afterwords that he had asked for some tip which was clear from the language used by him “ for chai pani ”. ...”

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5 AIR 1966 P&H 302

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6 AIR 1964 Pun. 89

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Page 14 of 15

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(Cr.A.No.3324/1999)

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Coming to the facts of the case in light of the above-stated legal position, it is quite vivid that since Bheemalal (PW-9), his father and brother were already granted bail by the appellant on the date of their arrest in Crime No.90/1990 for offence under Section 324 read with Section 34 of the IPC on 8-4-1990 itself at 5 p.m. duly recorded in roznamcha sanha Ex.P-21 on furnishing personal bond, therefore, the act of Bheemlal (PW-9) that after two days, on 10-4-1990, he made complaint that the appellant had demanded 1,000/- from him for₹ releasing him on bail, not only appears to be an act of afterthought, but also an act to falsely implicate the appellant herein, as he was already granted the privilege of bail on furnishing personal bonds by the complainant (PW-9), his brother and father on 8-4-1990 itself as per the document of the prosecution Ex.P-21 (roznamcha sanha). As such, filing of complaint by complainant Bheemal (PW-9) on 10-41990, after two days from the date of granting bail, that the appellant demanded money for releasing him on bail was neither here nor there, it was open to the complainant (PW-9) to decline to give any money to the appellant and even if he had refused to do so, it would not have been within the power of the appellant to have cancelled the bail or do anything else in the matter of the official work which had already been performed and completed so far as the appellant was concerned by releasing Bheemlal (PW-9), his brother and father on bail.

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(Cr.A.No.3324/1999)

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Therefore, I am of the considered opinion that no offence is made out against the appellant, as the allegation against him was he demanded bribe for releasing Bheemlal (PW-9) on bail in connection with offence under Section 324 read with Section 34 of the IPC registered under Crime No.90/1990. The document Ex.P-21 would clearly show that Bheemlal (PW-9) was already released on bail on 8-4-1990 itself at 5 p.m. and therefore there was no question of demanding any bribe on 10-4-1990 for performance of the act which had already been finished and completed i.e. releasing of Bheemlal (PW-9) on bail. Furthermore, the complaint lodged by Bheemlal Sahu (PW-9) vide Ex.P-2 was a counterblast for arresting him and for not acting on his complaint which he had filed. As such, no offence under Sections 7 & 13(1)(d) read with Section 13(2) of the PC Act is made out against the original appellant, as sine qua non of demand is not proved and therefore the recovery etc., if any, is of no use to the prosecution, and he is entitled for clean acquittal, which I hereby direct and he is accordingly acquitted.

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In conclusion, conviction and sentences imposed upon the appellant under Sections 7 & 13(1)(d) read with Section 13(2) of the PC Act are hereby set aside and he is acquitted of the said charges.

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The criminal appeal stands allowed.

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Sd/(Sanjay K. Agrawal) JUDGE

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Soma

Ganesh Ram (Ganesh Rao) Shendey (Now Dead) through Spouse Smt. Gopikala Shendey v. the State of M.P.

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Ganesh Ram (Ganesh Rao) Shendey (Now Dead) through Spouse Smt. Gopikala Shendey v. the State of M.P.

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