Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 551 (MP)

Jaiveer Singh Yadav v. State of M. P.

2003-04-16

P.C.AGARWAL

body2003
JUDGMENT AGRAWAL, J. 1. Appellant stands convicted under sections 7 and 13 (1) (d) read with section 13 (2) of Prevention of Corruption Act ('Act' for short) and sentenced to undergo RI for three years and fine of Rs.2,000/-, in default to further undergo RI for one year. Bribe amount of Rs.500/- was confiscated. Period of detention was ordered to be set off in the sentences. 2. As per prosecution, Samrath Singh (PW 4) and Nathuram (PW 5) had applied for electric connections for their electric pumps. Samrath Singh (PW 4) had deposited Rs.758.70 paise on 24.11.1986 and Rs.698.70 paise on 3.12.1986. Nathuram (PW 5) had deposited Rs.758.70 paise on 21.11.1987. Both of them had filed application for connections and filled in the prescribed proforma agreements. Still no connection was provided to them. Appellant demanded Rs.900/- as bribe before connection could be given to them. Both these farmers approached M.K. Raut (PW 9), SDO Ashoknagar and complained vide Ex.P-15. M.K. Raut (PW 9) proceeded to prepare for trapping the appellant. 3. M.K. Raut (PW 9) initialled five currency notes of Rs.100/- each vide memo Ex. P-21. Harcharan Sahu (PW 7) a junior Sub-Inspector of PS Ashoknagar and one Naib Tahsildar, an Executive Magistrate also accompanied M.K. Raut (PW 9) to the house of appellant. Samrath Singh (PW 4) was sent with the initialled currency notes of Rs.500/- to the house of the appellant. He kept these currency notes on the table of the appellant. M.K. Raut (PW 9) entered inside the house and recovered these currency notes from the table of the appellant vide Ex. P-13, recovery memo. Appellant was arrested the same day vide Ex. P-20. 4. On 26.11.1987, R.K. Shivhare (PW 8) SDO (P) Ashoknagar seized receipts of deposit money from Nathuram(PW 5) and Samrath Singh (PW 4) vide Ex. P-12. On 30.11.1988 R.S. Dhakare, SDO (P), Ashoknagar seized office copies of money receipts and other record of MPEB vide Ex. P-18. Later, on 17.1.1989 original applications and agreements for connection were collected from MPEB. On 16.11.1990 sanction for prosecution was obtained from MPEB vide Ex. P-19 under signatures of Secretary of the Board, under directions of the Board. 5. Appellant pleaded not guilty. According to him he had neither demanded the bribe amount nor had received the same. No sanction for his prosecution was granted' in year 1990. Sanction for prosecution had been incompetent and invalid. 6. P-19 under signatures of Secretary of the Board, under directions of the Board. 5. Appellant pleaded not guilty. According to him he had neither demanded the bribe amount nor had received the same. No sanction for his prosecution was granted' in year 1990. Sanction for prosecution had been incompetent and invalid. 6. However, the Court below believed the prosecution story and convicted and sentenced the appellant as aforesaid. 7. It is well settled that both demand of bribe as well acceptance of bribe by the accused have to be proved before recording conviction under the Act: Rimal Kumar Gupta v. Special Police Establishment Lokayukt [ 2001 (1) JLJ 276 ]. Demand of bribe should be proved by substantive evidence. Mere recovery of money divorced from the circumstances under which the same was paid is not enough : Suresh Kumar Shrivastava v. State of M.P. [ 1994 JLJ 247 ], wherein Surajmal v. The State (Delhi Administration) [ AIR 1979 SC 1408 ] and Sitaram v. State of Rajasthan [ AIR 1975 SC 1432 ] were relied upon. Certainly, demand of bribe must also be proved by substantive evidence: Arjun Singh v. State of M.P. [1997 (I) MPWN 194], State of M.P. v. Vishnudayal [1998 (1) MPWN 243]. 8. In the present case, both Samrath Singh (PW 4) and Nathuram (PW 5) have not supported the case of prosecution. They do not admit that the appellant had demanded Rs.900/- from them as bribe. None of them admits that Ex. P-15 complaint was filed by any of them to M.K. Raut (PW 9), the SDO, Ashoknagar. They have merely admitted their signatures on back of Ex. P-15. According to them, they had signed on blank paper. Both of them have been declared hostile by the learned Public Prosecutor and have been cross-examined and confronted with their previous statements recorded by 10 which they have denied. Certainly R.K. Shivhare (PW 8) SDO (P) the investigating officer has proved correct recording of the statement. Yet no statement recorded under section 161 of the Code of Criminal Procedure is substantive evidence during the trial. Thus, demand of bribe by the appellant has not been proved. State of M.P. v. J.B. Singh [2000 (2) Vidhi Bhasvar 196 = AIR 2000 SC 3562 ] and Suresh Kumar Shrivastava v. State of M.P. [ 1994 JLJ 247 ] can usefully be cited in this reference. 9. Thus, demand of bribe by the appellant has not been proved. State of M.P. v. J.B. Singh [2000 (2) Vidhi Bhasvar 196 = AIR 2000 SC 3562 ] and Suresh Kumar Shrivastava v. State of M.P. [ 1994 JLJ 247 ] can usefully be cited in this reference. 9. It is true that M.K. Raut (PW 9) the then SDO Ashoknagar has stated on oath that two farmers had complained to him that Shri Yadav of MPEB is demanding Rs.900/- as bribe for the connection, whereupon he had prepared for trapping and had initialled 5 currency notes of Rs.100/- each and had accompanied them with one Naib Tahsildar, i.e., Executive Magistrate and a police officer, i.e., Harcharan Sahu (PW 7) who was then Junior Sub-Inspector. It is noteworthy that the concenned Naib Tahsildar or Executive Magistrate has not come before the Court to depose to support M.K. Raut (PW 9). However, Harcharan Sahu (PW 7) has supported M.K. Raut (PW 9) about laying of trap. According to him, M.K. Raut (PW 9) had heard the talk of complainants and the appellant concealing himself behind the wall yet M.K. Raut (PW 9) had not said a word in the Court about such a talk. Harcharan Sahu (PW 7) has claimed that appellant had protested the tender of Rs.500/- only as Rs.900/- were agreed to be paid and had told that he would work only when remaining Rs.400/- are paid to him. However, Samrath Singh (PW 4) has not supported the prosecution on this count. Both M.K. Raut (PW 9) and Harcharan Sahu (PW 7) have claimed that currency note of Rs.500/- were kept on-the table of the appellant and were recovered there from. Certainly this amount was not seized from person of the appellant. The recovery of currency notes from the table of appellant in these circumstances does not establish that the appellant had actually accepted the money. It can well be that Samrath Singh (PW 4) might have left the currency notes without knowledge of the appellant. As the facts of the case are, phenolphthalein powder was not used in the present case, there has been no evidence other then the oral statement of Harcharan Sahu (PW 7), that the appellant had accepted the currency notes. It can well be that Samrath Singh (PW 4) might have left the currency notes without knowledge of the appellant. As the facts of the case are, phenolphthalein powder was not used in the present case, there has been no evidence other then the oral statement of Harcharan Sahu (PW 7), that the appellant had accepted the currency notes. To avoid such a quandary or situation, usefulness of taking help of phenolphthalein powder, i.e., scientific mehtod has been emphasized in Raghbir Singh v. State of Punjab [ AIR 1976 SC 91 ] and Somprakash v. State of Delhi [ AIR 1976 SC 989 ]. 10. It is made clear at the risk of repetition that M.K. Raut (PW 9) has not said a word about the talk between Samrath Singh (PW 4) and the appellant. Samrath Singh (PW 4) himself has not supported the prosecution, Harcharan Sahu (PW 7) has been a member of trap party. He had been a very junior police officer. His statement could not be accepted on its face value. Certainly, no statements of any member of trap party could be accepted without independent corroboration as from the very nature of the case, members of trap party are naturally interested in the success of their trap cases. They cannot be termed as independent witnesses : Omprakash v. State of Punjab [ AIR 1992 SC 665 ], Panalal Damodar Rathi v. State of Maharashtra [ AIR 1979 SC 1191 ] and Khilli Ram v. State of Rajasthan [ AIR 1985 SC 79 ]. 11. R.K. Tiwari (PW 12) was posted as Secretary of MPEB. According to him, the case of appellant was placed before him and he had studied the same and granted sanction vide Ex. P-19. He has admitted that earlier on 7.5.1990, the Board had refused to grant such sanction vide its letter Ex. D-2. That time, grant of sanction was not considered proper. Prosecution Officer was also of the view that chances of success of prosecution had been bleak. R.K. Tiwari (PW 12) admits that thereafter no more evidence was collected by the Board. Such santion was granted under pressure of several officers including the Collector, Guna and Secretary level officer of the State Government. Prosecution Officer was also of the view that chances of success of prosecution had been bleak. R.K. Tiwari (PW 12) admits that thereafter no more evidence was collected by the Board. Such santion was granted under pressure of several officers including the Collector, Guna and Secretary level officer of the State Government. He submits that such sanction was granted by the Board and its earlier decision was modified under pressure and the order is neither impartial nor independent decision of the Board. 12. Certainly in these circumstances of the case, grant of sanction of prosecution against the appellant has not been proper exercise of his discretion. The same is not granted after application of mind by the sanctioning authority. He has acted under dictation and pressure of the Secretariate. As such, the grant of sanction is improper and thus incompetent and invalid. State of T.N. v. M.M. Rajendran [1998 SCC (Cri) 1000] and Gopikant Chowdhary v. State of Bihar [2000 SCC (Cri) 1158] can usefully be quoted on the point. 13. Thus, from evidence on record, no offence under sections 7, 13 (l)(d) and 13 (2) of the Act has been proved against the appellant. His appeal merits to be allowed. Appellant is entitled to acquittal. 14. Thus appeal is allowed, appellant is acquitted. Sentence awarded to him is set aside, fine amount, if paid, be returned back to him. His bail bond and surety bond are disoharged.