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Madhya Pradesh High Court · body

2006 DIGILAW 586 (MP)

State of M. P. v. K. K. Pandey

2006-04-24

S.A.NAQVI

body2006
ORDER 1. Non-petitioner KK Pandey retired Executive Engineer and Chief Executive Officer, District Panchayat, Kolaras, District Shivpuri has been acquitted under section 7 and section 13 (1) (d) read with section 12 (2) of the Prevention of Corruption Act by Special Judge, Shivpuri by passing judgment dated 1.7.2005 in Case No.1 of 2004. 2. As per prosecution, non-petitioner KK Pandey on 16., 17.1.2003 was Chief Executive Officer Janpad Panchayat, Kolaras, District Shivpuri and he was a public servant. Village Sesai Khurd falls within Janpad Panchayat Kolaras. Mukesh Bai w/o Shri Bhanupratap Singh was Sarpanch of Village Sesai Khurd. On 16.1.2003 and before that, construction work was going on. Sarpanch of Village Sesai Khurd applied for construction of road to non-petitioner KK Pandey. Accused KK Pandey demanded Rs. 5,000/- (Rs. five thousand) as illegal gratification from said Mukesh Bai through her husband. Consequently, Bhanupratap Singh filed an application Ex. P-1 before Superintendent of Police, Lokayukta, Gwalior. Thereafter, all formalities were completed and panchnama was prepared. Ten notes of Rs. 500/- (Rs. five hundred) each in all Rs. 5,000/- (Rs. five thousand) were treated with phenopthellein powder and they were given to Bhanupratap Singh to deliver accused. After delivering notes, he was directed to give signal to trap party. Trap party was constituted. Bhanupratap Singh went to the office of accused and handed over him ten notes of Rs. 500/- (Rs. five hundred) each. He was caught red handed. Notes were seized from the spot. On washing accused's fingers by sodium carbonate solution, it turned pink. After completing formalities and investigation, charge-sheet under section 7 and section 13 (1) (d) read with section 12 (2) of the Prevention of Corruption Act has been filed after taking due sanction for prosecution against accused. Charge under above said sections has been framed against accused KK Pandey. He abjured the guilt and pleaded that he has been falsely implicated. 3. After recording evidence and completion of trial, learned trial Court acquitted non-petitioner KK Pandey from the offence levelled against him. Aggrieved by the impugned order, State filed this More under section 378 (3) of CrPC for grant of special leave to appeal. 4. I have heard both the parties at length, perused the impugned judgment and record of the trial Court. 5. It has been argued by learned counsel for the State that learned trial Court committed illegality and perversity in passing impugned judgment. 4. I have heard both the parties at length, perused the impugned judgment and record of the trial Court. 5. It has been argued by learned counsel for the State that learned trial Court committed illegality and perversity in passing impugned judgment. There is sufficient evidence on record to convict non-petitioner KK Pandey. Learned trial Court did not appreciate prosecution evidence and documentary evidence as per law and prayed for to grant special leave to appeal. Learned counsel for the non-petitioner on the other hand supported impugned judgment and prayed for dismissal of MCr case. 6. Bhanupratap Singh (PW 1) and his wife Smt. Mukesh Bai (PW 5) turned hostile. They did not support prosecution case. Both of them deposed that no demand of bribe is made by k.K. Pandey though Bhanupratap Singh admitted his signatures on Ex. P-l to P-5 which are applications given by him to Superintendent of Police, (Lokayukta) and Panchnama prepared pertaining to formalities of the trap. In crossexamination, Bhanupratap Singh deposed that his signatures were taken on plain papers and he never went to Gwalior to complain against KK Pandey and Kolaras Police asked him to sign papers and therefore, he signed those papers. Even Bhagwati Prasad (PW 2), Ummed Singh (PW 3), Ravindra Singh (PW 4), Haridas Shakya (PW 6), J.B.S. Yadav Sub Inspector (PW 7), Khaliq Mohd. (PW 8), Rabhunandan Singh (PW 9), S.C. Meena (PW 11), Kailash Narayan Thengle, Dr. S.M. Tripathi (PW 13) and Hukum Singh Yadav (PW 15) did not support prosecution regarding demand of bribe by non-petitioner KK Pandey. It has been argued by learned counsel for the State that a trap has been arranged and KK Pandey was trapped and Rs. 5,000/- (Rs. five thousand) were seized from the spot and on washing hands of non-petitioner by Sodium Carbonate, it turned pink. All these circumstances indicate that non-petitioner demanded Rs. 5,000/- (Rs. five thousand) as bribe from Bhanupratap Singh and his wife and he received bribe money Rs. 5,000/from B.P. Singh on 15.1.2005. It is settled principle of law that first information report is not substantive piece of evidence. On the basis of first information report, accused cannot be held guilty. There is no evidence on record for demand of bribe by non-petitioner KK. Pandey from complainant. 5,000/from B.P. Singh on 15.1.2005. It is settled principle of law that first information report is not substantive piece of evidence. On the basis of first information report, accused cannot be held guilty. There is no evidence on record for demand of bribe by non-petitioner KK. Pandey from complainant. In 1997 (1) MPWN 194 [Arju Singh v. State of M.P.], it has been held by a bench of M.P. High Court that the averment not supported by the complainant, first information report does not form part of substantive evidence and on the basis of that, accused cannot be convicted for taking bribe. The burden to prove that non-petitioner demanded bribe from complainant is on the prosecution and this fact must be proved by substantive piece of evidence but there is no evidence on record that non-petitioner KK Pandey demanded bribe from complainant. If no demand of bribe is made, only recovery of currency notes would not give any presumption against non-petitioner regarding demand of bribe or receiving bribe money. In 1994 CRLJ 1258 [Balakrishnan v. State] it has been held by Madras High Court that if there is no evidence as to demand of bribe, accused cannot be convicted of the offence receiving bribe. In 1998 (1) MPWN 243 [State of M.P. v. Vishnudayal] it has been held that if demand of bribe is not established, no offence under section 7 and section 13 (1) (d) read with section 12 (2) of the Prevention of Corruption Act is proved I against accused. 7. On going through the impugned judgment, record of the trial Court, documentary evidence and oral evidence adduced by both the parties, I am of the view that there is no sufficient evidence on record to prove that non-petitioner K.K. Pandey demanded Rs. 5,000/- (Rs. five thousand) bribe to sign construction of road work. Only on the basis of recovery of Rs. 5,000/- (Rs. five thousand) from the office of non-petitioner, it cannot be presumed that non-petitioner K.K. Pandey demanded Rs. 5,000/- (Rs. five thousand) as bribe from Bhanupratap Singh and he received Rs. 5,000/-(Rs. five thousand) illegal gratification. Learned trial Court appreciated evidence adduced by prosecution legally. Impugned judgment is also not suffering from any perversity or illegality. Prosecution witnesses Bhanupratap Singh and Mukesh Bai have also not supported prosecution story. 5,000/- (Rs. five thousand) as bribe from Bhanupratap Singh and he received Rs. 5,000/-(Rs. five thousand) illegal gratification. Learned trial Court appreciated evidence adduced by prosecution legally. Impugned judgment is also not suffering from any perversity or illegality. Prosecution witnesses Bhanupratap Singh and Mukesh Bai have also not supported prosecution story. As per above discussion, no case is made out for any interference and prosecution has failed to prove beyond reasonable doubt that bribe was demanded by the accused/non-petitioner or the same was accepted by him. Since demand of bribe is not established by cogent and reliable evidence by prosecution, thus the case and charge is completely demolished. Learned Panel Lawyer has failed to show that the judgment suffers from any perversity. No other view is possible from the material available on record. 8. Consequently, appeal has no force and no ground is made out to grant special leave to appeal. Application filed by the State i.e. MCrC is not liable to be admitted and consequently, dismissed. Impugned judgment passed by learned trial Court is hereby confirmed.