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Madhya Pradesh High Court · body

2008 DIGILAW 1252 (MP)

Ramkrishna Pandey v. State of M. P.

2008-10-23

A.K.SHRIVASTAVA

body2008
JUDGMENT A.K. Shrivastava, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 22-1-1996 passed by learned V Additional Sessions Judge and Special Judge, Jabalpur in Special Case No. 06/95 convicting appellant under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (in short 'the Act') and sentencing him to suffer RI of one year and fine Rs. 15000/-for the offence under Section 7 of the Act and further sentencing him to suffer RI for two years and fine Rs. 20,000/-, in total three years RI and fine Rs. 35,000/-, in default, one year RI under each section, the appellant has knocked the door of this Court by preferring this appeal under Section 374(2) of Code of Criminal Procedure, 1973. 2. In brief, the case of prosecution is that appellant at the relevant point of time was serving on the post of Dy. General Manager and Dy. Chief Engineer (Civil) in Northern Coal Fields Limited, Jayant Project, Singrouli District Sidhi. During the year 1993 in the above capacity as a public servant, he demanded and accepted illegal gratification amounting to Rs. 30,000/- on 19-8-1993 from contractor Rakesh Kumar Singh (hereinafter referred to as 'the complainant') of Jayant Project by expediting the detained payment and allowing the extension of contract without imposing any penalty. Since the complainant was not keen to give any bribe to the appellant, he met Additional Superintendent of Police who arrived at Baidhan and complainant submitted written complaint to him. On submitting the complaint, the Panch witnesses R.L. Sutrakar and B.L. Purohit were called and they were introduced with the complainant and thereafter written complaint of complainant was given to Panch witnesses who after going through the complaint and making certain enquiry from the complainant, decided that a trap should be arranged. 3. Eventually 60 currency notes of Rs. 500/- each (in total Rs. 30,000/-) were submitted by the complainant, the description whereof was noted down in the pre-trap Panchnama. On these currency notes phenolphthalein powder was applied and a demonstration of the change of colour of the solution of sodium carbonate coming into the contact of phenolphthalein powder was made. 3. Eventually 60 currency notes of Rs. 500/- each (in total Rs. 30,000/-) were submitted by the complainant, the description whereof was noted down in the pre-trap Panchnama. On these currency notes phenolphthalein powder was applied and a demonstration of the change of colour of the solution of sodium carbonate coming into the contact of phenolphthalein powder was made. These currency notes were kept in the pocket of the shirt of the complainant and he was pacified that he should not come in contact of these treated currency notes till the demand of bribe is made by the appellant. The witness R.L. Sutrakar was made as surveillance witness to see and overhear the transaction of giving and taking of the bribe with a further direction that after the transaction of illegal gratification is completed, signal may be given to the members of the trap party by itching the head. 4. Thereafter the trap party at about 16.10 hours by two vehicles went to Northern Coal Field where they reached at 16.40 hours. After reaching at the spot as per the plan Shri Dubey, Dy. Superintendent of Police instructed the members of the team as well as to witness B.L. Purohit to take the convenient position inside the office premises and nearby the chamber of appellant. The complainant and surveillance witness R.L. Sutrakar went inside the chamber of the appellant, however, appellant directed complainant to come after an hour as a result of which both of them came out from his chamber. After an hour again complainant and surveillance witness R.L. Sutrakar went inside the chamber of the appellant. On being asked by appellant about the shadow witness R.L. Sutrakar, complainant introduced him as his friend. Thereafter appellant asked to give the bribe and by giving answer in affirmative by the complainant, complainant took out the treated currency notes of Rs. 30,000/- from his pocket and handed over it to the appellant which he received from his right hand and kept in the right side drawer of the table. Thereafter complainant requested that his work be done, on this appellant replied that very soon his work will be done and he need not to worry. Appellant and surveillance witness came out from the chamber of the appellant and gave signal to the members of the trap party. Thereafter complainant requested that his work be done, on this appellant replied that very soon his work will be done and he need not to worry. Appellant and surveillance witness came out from the chamber of the appellant and gave signal to the members of the trap party. On receiving the signal, police personnel and members of the trap party entered inside the chamber of the appellant and his hands were caught from the wrist. The members of trap party introduced themselves and thereafter the hands of appellant were dipped in the solution of sodium carbonate and on dipping the fingers of his hand, the colour of the solution turned to pink which was collected in a separate sealed bottle. The fingers of the hands of the complainant were also washed in the solution of sodium carbonate and his hand wash was also turned to pink which was also collected in a separate sealed bottle. The surveillance witness R.L. Sutrakar informed that the amount of bribe has been kept by appellant in the drawer of the table and on the direction of Dy. Superintendent of Police, R.L. Sutrakar took out the treated currency notes from the drawer and their numbers were tallied with the pre-trap Panchnama and the numbers were found to be the same. A post-trap Panchnama was also prepared. 5. After the investigation was over and sanction to launch prosecution against the appellant was obtained, a charge-sheet was submitted before learned Special Judge who after going through it framed the charges punishable under Sections 7 and 13(1) read with Section 13(2) of the Act. Needless to emphasize the appellant abjured his guilt and pleaded complete innocence. 6. The defence of appellant is of false implication and in support of his defence, he examined Ram Mani Mishra (D.W. 1), S.K. Ghosh (D.W. 2) and Ramadhar Patel (D.W. 3). The further defence and explanation which has been put to the prosecution witnesses and in the statement recorded under Section 313, Cr.PC by the appellant is that he was serving on a reputed and senior post of Dy. Chief Engineer (Civil)/Dy. General Manager in Northern Coal Field, Jayant Project, Singrouli, District Sidhi and a conspiracy has been arranged against him so that he may not promoted. According to the appellant, complainant is having some relative in CBI Office and with the help of that relative, appellant has been falsely roped. Chief Engineer (Civil)/Dy. General Manager in Northern Coal Field, Jayant Project, Singrouli, District Sidhi and a conspiracy has been arranged against him so that he may not promoted. According to the appellant, complainant is having some relative in CBI Office and with the help of that relative, appellant has been falsely roped. The Senior Officers of his department has led a false trap in order to implicate the appellant so that he may not be promoted. The further defence which has been taken is that since appellant was serving on a very high post, responsible officers like Sub Divisional Officer etc. should have been made as Panch witnesses in place of calling the ordinary employees of the Bank to make them as Panch witnesses. Why the CBI party came to Baidhan, there is no explanation. According to the appellant, the alleged demand of bribe was made on 17-8-1993 and on the next day, i.e., 18-8-1993 complainant met to the CBI Authority at Baidhan and thereafter on 19-8-1993 a trap was arranged and therefore it can be inferred that at the insistence of complainant in order to give positive effect of pre-plan to implicate appellant falsely, the CBI Authority arrived at Baidhan and the stand which the CBI has taken that for some confidential work, they came to Baidhan is nothing but a false pretext and is also an eye-wash. The further explanation of the appellant in his statement under Section 313, Cr.PC is that when for the first time complainant and shadow witness R.L. Sutrakar came in the chamber of the appellant, some persons were sitting in his chamber and they were directed to wait for an hour, but, this fact is not corroborated by post-trap Panchnama (Exh. P-3)/recovery memorandum and the witnesses to Exh. P-3. According to the defence, the handle of the drawer was not washed in order to ascertain whether appellant accepted any bribe or not. 7. The learned Special Judge on the basis of the evidence placed on record came to hold that the charges are proved and eventually convicted the appellant and passed the sentence which I have mentioned hereinabove. 8. In this manner, the present appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 9. 7. The learned Special Judge on the basis of the evidence placed on record came to hold that the charges are proved and eventually convicted the appellant and passed the sentence which I have mentioned hereinabove. 8. In this manner, the present appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 9. It has been argued by Shri Ramesh Kumar, learned Counsel appearing for appellant that the evidence of prosecution witnesses particularly complainant and surveillance witness, is not at all reliable. It has also been put forth by him that since appellant was serving on a very reputed and high post of Dy. General Manager, ordinary persons like the employees of the Bank should not have been made as Panch witnesses but the services of responsible officers like SDO should have been taken by the Investigating Agency. Further, it has been argued that as a matter of fact, the trap is nothing but the outcome of the vile idea of the senior officers of the department to implicate the appellant falsely so that he may not be further promoted. On these premised submissions, it has been argued by learned Counsel that by allowing this appeal, appellant be acquitted and the impugned judgment be set aside. 10. On the other hand, Shri Jayant Neekhra, learned Counsel appearing for respondent has argued in support of the impugned judgment and has submitted that there is positive evidence of the witnesses proving the factum of making demand of bribe by the appellant and thereafter he accepted the bribe on the date of trap and this has been so proved by the surveillance witness. It has also been put forth by him that the defence and explanation which the appellant has taken is not at all probable. In support of his contention, learned Counsel for respondent has placed reliance on the decision of Supreme Court State of Maharashtra v. 2006 CriLJ 794. 11. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed in part. 12. I do not find any substance in the contention of learned Counsel for appellant that since appellant was serving on a high post of Dy. Chief Engineer (Civil)/Dy. General Manager, therefore, the trap witness and shadow witness should also enjoy the status of high office. 12. I do not find any substance in the contention of learned Counsel for appellant that since appellant was serving on a high post of Dy. Chief Engineer (Civil)/Dy. General Manager, therefore, the trap witness and shadow witness should also enjoy the status of high office. There is no law as such nor any such law has been pointed out by learned Counsel for the appellant. Indeed, the precaution should be taken by the Investigating Agency in a trap case that the Panch witness and surveillance witness should be independent and respectable persons. In this context, the decision of Supreme Court Raghbir Singh v. 1976 CriLJ 172, may be taken into consideration wherein the Supreme Court has specifically held that the Panch witness and surveillance witness should be independent and respectable. Why the surveillance witness R.L. Sutrakar (P.W. 4) who at the relevant point of time was serving on the post of Assistant Manager in State Bank of India, Baidhan Branch, cannot be said to be an independent or respectable witness on the basis of test laid down by the Supreme Court in Raghbir Singh (supra). Similarly why the Panch witness B.L. Purohit (P.W. 5) who was serving on the post of Head Cashier in the State Bank Branch Baidhan cannot be said to be an independent and respectable witness as held by the Supreme Court in the said decision. On going through, the complaint (Exh. P-1), it is revealed that appellant called the complainant with the money till 19-8-1993 and therefore when complainant came to know that CBI party had arrived at Baidhan, he approached and submitted written report (Exh. P-1) mentioning the factum of making demand of bribe by the appellant in it. This report (Exh. P-1) has been proved by complainant when he appeared in the Court as P.W. 1. It be seen that Baidhan is a Tehsil of District Sidhi and therefore, if the Investigating Agency chose R.L. Sutrakar (P.W. 4) and B.L. Purohit (P.W. 5) who were serving on the post of Assistant Manager and Head Cashier respectively in the State Bank, their testimony cannot be thrown out merely on this ground that they are not enjoying the status of very high office. I am of the view that these two witnesses are totally independent and are respectable since they are the employees of the State Bank. I am of the view that these two witnesses are totally independent and are respectable since they are the employees of the State Bank. The surveillance witness R.L. Sutrakar (P.W. 4) is also an officer as he was serving on the post of Assistant Manager in the Bank. The Supreme Court in Hazarilal v. 1980 CriLJ 564, in Para 8 has categorically held that merely because panch witnesses are holding clerical post, it cannot be said that they are not independent witnesses. Thus, for all practical purpose, these two witnesses are held to be independent and respectable witnesses. 13. The question would now arise whether the prosecution has proved the demand of bribe made by appellant and also whether he accepted the same. In order to come to any conclusion in that regard, I would like to see that what is required to be proved by the prosecution when a charge under Section 7 of the Act has been framed against the appellant. To me the main ingredients of the charge of an offence under Section 7 of the Act as observed by Hon'ble Shri Justice Ranganath Misra as His Lordship then was in R.S. Nayak v. 1986 CriLJ 1922 , are: (1) that the accused was a public servant; (2) that he must be shown to have obtained from any person any gratification other than legal remuneration, and (3) that the, gratification should be 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 function, favour or disfavour to any person. It is immaterial whether amount is receive before or after the favour is done. To constitute an offence under this Section, it is enough if: (a) the public servant who accepts the gratification, takes it by inducing a belief or hold out that he would render assistance to the giver, and (b) the giver gives the gratification under that belief. 14. Testing the above said tests and essential ingredients to constitute the offence under Sections 7 and 13(1)(d) read with Section 13 (2) of the Act on the touchstone and anvil of the evidence which has been adduced by the prosecution in this case, I shall now examine the testimony of the witnesses. 15. In the present case, complainant Rakesh Kumar Singh has been examined as P.W. 1. 15. In the present case, complainant Rakesh Kumar Singh has been examined as P.W. 1. According to him, the work contract which was undertaken by him was to be completed on or before 27-4-1993 but it could not be completed because the department did not provide the entire cement quota to him. Later on, the work was completed on 27-5-1993. Thereafter complainant met appellant to extend the period of completion of the work contract and in this regard he submitted written application but appellant did not give its reply. On 17-8-1993 he met with appellant in this regard who told complainant that since the work was not completed within the prescribed period, complainant is required to give penalty and in order to save the penalty and in order to get the work period extended a demand of bribe of Rs. 30,000/- was made by him. A date 19-8-1993 was also settled to give the bribe and the place was also fixed since this amount was decided to be given in the office. Thereafter this witness went to the Bank where he came to know that CBI persons have come and thereafter he met to Dy. Superintendent of Police, Shri Dubey and submitted a written report (Exh. P-l) to him. This witness has also proved his written complaint (Exh. P-l) in which demand of bribe made by appellant of Rs. 30,000/- has been stated. This witness has also proved the entire procedure which was conducted prior to the trap including the introduction of Panch witness R.L. Sutrakar (P.W. 4) and B.L. Purohit (P.W. 5). According to this witness, Panch witness R.L. Sutrakar was made as surveillance witness and was sent with the complainant to see the transaction of bribe and to overhear the dialogue at the time of giving and taking of the bribe. This witness has also stated that on submitting currency notes of Rs. 30,000/- by him they were treated by the phenolphthalein powder and were kept in his pocket with a direction that these currency notes should not be touched before they are given to appellant. Thereafter this witness and surveillance witness along with the trap party went to the office of the appellant and these two persons were sent in his chamber. Other members of the trap party took their position. Thereafter this witness and surveillance witness along with the trap party went to the office of the appellant and these two persons were sent in his chamber. Other members of the trap party took their position. According to the complainant, surveillance witness R.L. Sutrakar was introduced to the appellant as his friend.-Thereafter appellant asked whether the arrangement has been made as directed by him, on this complainant replied that he has brought the amount which was demanded by appellant. Thereafter appellant received the treated currency notes from his right hand and kept those treated currency notes in the right drawer of the table. Complainant also stated that he is worried and his work be done early, on this appellant told that complainant should now be rest assured and his work will be done without any delay. Thereafter, both these persons came out from the chamber of the appellant and gave signal to the members of the trap party by itching hand on the head. Immediately the police personnel and the members of the trap party entered inside the chamber and they introduced themselves to the appellant. The hands of the appellant were caught by the police personnel and the fingers of his hand were dipped in the solution of sodium carbonate. On dipping the fingers of the hands of appellant, colour of the solution of sodium carbonate turned to pink which was collected in a separate sealed bottle. The fingers of the hands of the complainant were also dipped in the solution of sodium carbonate which turned to pink and the same was collected in a separate sealed bottle. 16. The surveillance witness stated to the members of the trap party that the treated currency notes of bribe are kept in the drawer and he was directed to take out those treated currency notes. The fingers of the hands of the surveillance witness were also thereafter dipped in the solution of sodium carbonate which turned to pink and the same was collected in a separate sealed bottle. 17. The numbers of the treated currency notes were also tallied with the pre-trap Panchnama and they were found to be the same. In cross-examination Para 13, complainant has stated that when he entered inside the office of the appellant some persons were sitting and therefore he was directed to sit outside the chamber by the appellant. 17. The numbers of the treated currency notes were also tallied with the pre-trap Panchnama and they were found to be the same. In cross-examination Para 13, complainant has stated that when he entered inside the office of the appellant some persons were sitting and therefore he was directed to sit outside the chamber by the appellant. According to this witness, he waited for an hour. Thereafter, again this witness along with the surveillance witness entered inside the chamber of the appellant and handed over the treated currency notes to him on being asked by the appellant whether he has brought the money. The suggestion put to this witness that in the absence of appellant the treated currency notes were kept in the drawer of his table has been emphatically denied by this witness. 18. The evidence of complainant has been corroborated by the testimony of surveillance witness R.L. Sutrakar (P.W. 4) who has categorically stated that he along with complainant went inside the chamber of appellant but appellant told them to come after an hour and thereafter they again went inside the chamber of appellant when he was alone and on being asked by the appellant about this witness he was introduced as Supervisor of the complainant. Thereafter, complainant took out the treated currency notes from his pocket and handed over the same to appellant which he received and kept in the right side of the drawer of his table. Thereafter these two persons came out from the chamber and gave signal to the members of trap party. Further this witness has stated that on the insistence of the CBI persons he took out the treated currency notes from the drawer of the table and thereafter his hands were subjected to phenolphthalein powder test and on dipping the finger of his hands, colour of the solution of sodium carbonate turned to pink which was collected in a separate sealed bottle. 19. The evidence of complainant and surveillance witness has been corroborated by another witness B.L. Purohit (P.W. 5) who has also stated that he was standing nearby steno room of the appellant from where he was observing what is being happened. Though from that place the inside scene of the room was not very clear but he was observing the activity. According to this witness he saw appellant bending towards the complainant and was receiving something in his hand. Though from that place the inside scene of the room was not very clear but he was observing the activity. According to this witness he saw appellant bending towards the complainant and was receiving something in his hand. Immediately thereafter complainant and surveillance witness came out from the chamber and gave signal. The police personnel immediately caught hold the hands of the appellant and his hands were subjected to phenolphthalein powder test which was found to be positive. The treated currency notes were taken out from the drawer of the appellant and their numbers were also tallied with pre-trap Panchnama and they were found to be the same. 20. Thus, the evidence of the complainant is corroborated by the testimony of surveillance witness and the evidence of trap witness. It has been proved that appellant made demand of bribe and accepted the same. Before taking the bribe money from complainant he asked complainant whether he has made all arrangement, on this complainant told that the money has been brought by him. Thereafter appellant received the treated currency notes and kept it in the drawer of his table and therefore, I am of the view that in the light of the evidence placed on record, the charges framed against appellant are proved. 21. I do not find any force in the submission of learned Counsel for appellant that because N.K. Dubey, Dy. Superintendent of Police, CBI (P. W. 6) in his cross-examination did not disclose the reason why CBI party came to Baidhan and has said that for some confidential work the CBI party came to Baidhan and has also refused to state what was that confidential work therefore, it should be inferred that appellant has been falsely roped. To me, it was not necessary for Dy. Superintendent of Police to state why he came to Baidhan looking to the nature of his job and the post which he was holding. 22. The defence and the explanation which appellant has offered that he has been falsely roped by some official persons so that he may not be promoted is not at all proved by him by placing cogent evidence. Hence, the decision Rashid B. Mulani (supra), placed reliance by Shri Neekhra, learned Counsel for respondent is squarely applicable in the present case. The defence and the explanation which appellant has offered that he has been falsely roped by some official persons so that he may not be promoted is not at all proved by him by placing cogent evidence. Hence, the decision Rashid B. Mulani (supra), placed reliance by Shri Neekhra, learned Counsel for respondent is squarely applicable in the present case. Since the demand of bribe and acceptance of the same has been proved by the prosecution, statutory presumption under Section 20 of the Act would be drawn against the appellant that he has accepted the bribe. In the latest pronouncement Raj Rajendra Singh Seth v. State of Jharkhand and Anr. 2008 AIR SCW 5442, it has been held by the Apex Court that evidence of the complainant clearly showing that appellant made demand of bribe and this has also been witnessed by the surveillance witness and the currency notes were also recovered from the possession of the appellant, therefore, the accused was rightly convicted. The decision Raj Rajendra Singh Seth (supra), is squarely applicable in the present case also. At this juncture, I may also place reliance on another decision of Supreme Court Girja Prasad (dead) by L.Rs. v. State of M.P. (2007) 7 SCC 625 . 23. I do not find any merit in the contention of learned Counsel for appellant that the handle of the drawer should have been washed in the solution of sodium carbonate in order to ascertain whether the bribe was accepted or not because if after receiving the treated currency notes, the same were kept inside the drawer, definitely on coming into contact with the handle of the drawer some particles of the powder must have fallen on the handle of the drawer. According to me, if the handle would have been washed in chemical solution of sodium carbonate at the most it would have been an additional evidence. However, the question is why overwhelming evidence proving the guilt of the appellant should be ignored and I do not find any reason to disbelieve it. 24. I also do not find any merit in the contention of learned Counsel for appellant that the work contract which complainant undertook was not to construct the bridge but only to construct only a wall and the total cost of construction was Rs. 4,42,327/- and, therefore, why an amount of Rs. 30,000/-would be given for the bribe. 24. I also do not find any merit in the contention of learned Counsel for appellant that the work contract which complainant undertook was not to construct the bridge but only to construct only a wall and the total cost of construction was Rs. 4,42,327/- and, therefore, why an amount of Rs. 30,000/-would be given for the bribe. True, on going through the file Article 'G', it is revealed that entire bridge was not undertaken to be constructed by the complainant but particular area of the wall was required to be constructed by him and the cost of the work order was Rs. 4,42,327/-. But looking to the facts and circumstances, since the demand of bribe was made by appellant and the same was accepted by him and there is overwhelming evidence to that effect, I do not find any merit in this contention. 25. I have also gone through the reasonings assigned by the learned Special Judge and I find them to be quite cogent as they are based on correct appreciation of evidence. However, I find that the sentence awarded by learned Special Judge to be harsh. It appears that appellant has already lost his job and, therefore, to meet the ends of justice he is directed to suffer one year R.I. and fine Rs. 1,000/-, in default of payment of fine, two months simple imprisonment on all counts. Let the balance amount of fine if deposited by the appellant, be refunded to him. 26. The appeal is allowed in part. 27. The conviction of appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Act is hereby upheld. However, the sentence is reduced to the extent as indicated herein above. The appellant is on bail, his bail bonds are cancelled and he is directed to surrender for serving out the sentence.