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Madhya Pradesh High Court · body

2008 DIGILAW 1399 (MP)

Khushi Ram v. State of M. P.

2008-12-03

A.K.SHRIVASTAVA, K.S.CHAUHAN

body2008
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 18.1.1997 passed by learned Special Judge, Chhindwara in Special Case No. 3/94, convicting the appellant under section 8 of the Prevention of Corruption Act, 1988 (in short' the Act') and thereby sentencing him to suffer rigorous imprisonment of two years and fine of Rs. 3,500/-, in default of payment of fine, further RI of six months, this appeal has been preferred by him under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that in the intervening night of 25th and 26th of November, 1994 Assistant Sub-Inspector Parasnath Yadav was posted at Police Chowki Delakhari of Police Station Tamiya. In the late night said ASI checked Vehicle No. MP 22-B/4491 and found that the truck was containing 5 quintals of Achar Chironji (forest produce) kept in 11 bags having value of rupees one lac. The transit pass was found in the name of one Vinay Kumar and Chironji was being sent to Gujarat by appellant. According to prosecution, appellant himself was carrying on the business and was using the name of one Vinay Kumar in whose favour the transit pass was issued, for evasion of sales tax. It is the further case of prosecution that in order to release the truck and Chironji appellant offered bribe of Rs. 3,500/- to said ASI and as such he has committed offence as envisaged under section 7 of the Act, as a result of which on the basis of information sent by ASI to Dy. S.P. a case was registered under section 12 of the Act against the appellant. 3. After investigation was over, a charge-sheet was submitted in the Special Court and the learned Special Judge framed charge punishable under section 12 of the Act against the appellant which he denied and requested for trial. 4. In order to prove the charge, prosecution examined as many as nine witnesses and placed Exs. P-l to P-12, the documents on record. 5. The defence of appellant is of false implication as well as that he was having a valid transit pass and he was carrying the goods (Chironji) in the truck for Vinay Kumar, who is his brother-in-law and hence he has not committed any offence. P-l to P-12, the documents on record. 5. The defence of appellant is of false implication as well as that he was having a valid transit pass and he was carrying the goods (Chironji) in the truck for Vinay Kumar, who is his brother-in-law and hence he has not committed any offence. Further defence and the explanation which has been put-forth by him during the cross-examination of prosecution witnesses as well as in his statement recorded under section 313, CrPC is that despite showing transit pass to ASI (complainant), he did not agree to release the truck, on the contrary he took out currency notes of Rs. 3,500/- from his pocket and was demanding more money. In support of his defence, appellant also examined Vinay Kumar Sahu as DW 1 in whose name transit pass of the impugned goods was issued by the Forest Department. 6. Learned Special Judge on the basis of oral and documentary evidence placed on record came to hold that the appellant did commit the offence for which he was charged and eventually convicted him and passed the sentence which we have mentioned here-in-above. 7. In this manner the appellant has preferred this appeal assailing the impugned judgment of conviction and order of sentence passed by learned Special Judge. 8. It has been argued by Shri Amit Shukla, learned counsel appearing for the appellant that despite appellant showed valid transit pass to complainant ASI Parasnath Yadav (PW 8), illegally he seized the truck and goods as well as false complaint under section 12 of the Act was reduced in writing in Roznamcha and same was sent to Dy. S.P. and accordingly FIR was registered against the appellant. Learned counsel has also invited our attention to the testimony of complainant ASI Parasnath Yadav (PW 8) in order to demonstrate that indeed transit pass was shown by the appellant to him, but despite seeing the transit pass false case was registered against him. Learned counsel has further invited our attention to the testimony of Dy. Ranger Forest R.K. Dike (PW 7) and has submitted that the transit pass was in the name of Vi nay Kumar and the same can be carried by any other person and that action of the said person cannot be said to be an illegal act. Hence, according to learned counsel, looking to the evidence of Dy. Ranger Forest R.K. Dike (PW 7) and has submitted that the transit pass was in the name of Vi nay Kumar and the same can be carried by any other person and that action of the said person cannot be said to be an illegal act. Hence, according to learned counsel, looking to the evidence of Dy. Ranger Forest R.K. Dike (PW 7) no offence has been committed by the appellant because he was having a valid transit pass and if that is the position, why he will offer bribe. 9. On the other hand, Shri G.P. Singh, learned Public Prosecutor appearing for the respondent-State argued in support of the impugned judgment. 10. Having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed. 11. In the present case complainant Parasnath Yadav (PW 8), who at the relevant point of time was serving on the post of ASI, though has admitted that when appellant offered bribe of Rs. 3,500/- to him and requested not to register any case and he be released, he (complainant) lodged written report which was reduced in writing in Roznamcha, however, this witness has admitted that original transit pass was shown by the appellant to him and it was said that because he is having requisite and valid transit pass his truck be released. When appellant was having valid transit pass, we failed to understand why he will offer bribe of Rs. 3,500/- to the complainant. In this context and at this juncture only, we would like to scan the testimony of Dy. Ranger Forest R.K. Dike (PW 7), who has categorically admitted and stated that valid transit pass was issued in the name of Vinay Kumar and in the cross-examination specifically admitted that any other person may carry the goods in the name of the person for whom transit pass was issued. Further this witness has admitted that appellant neither committed any illegality nor any irregularity in carrying the forest goods, hence the same was released by this witness to the appellant. 12. The appellant has also taken pains to examine Vinay Kumar Sahu (DW 1) in whose name transit pass was issued. According to this witness he was having transit pass to carry Chironji (forest produce). 12. The appellant has also taken pains to examine Vinay Kumar Sahu (DW 1) in whose name transit pass was issued. According to this witness he was having transit pass to carry Chironji (forest produce). The appellant is his brother-in-law and he entrusted and gave transit pass to appellant to carry Chironji with him to Nadiyad (Gujarat). Specifically this witness has stated that a person holding transit pass can carry forest produce irrespective of the fact for whom transit pass has been issued. It has also been stated by this witness that in the transit pass it is not necessary to mention the name of the person who is actually carrying the goods and the name of the person for whom transit pass is issued. The statement of defence-witness is also corroborated from the evidence of Dy. Ranger Forest R.K. Dike (PW 7) who has also admitted that any other person may carry the forest goods though transit pass is in the name of another person and the said action of that person would not come under the ambit and sweep of illegal and irregular act and, therefore, he returned Chironji (forest produce) to appellant. 13. Thus, according to us, the probable defence which the appellant has taken during the cross-examination of prosecution witnesses as well as in his statement recorded under section 313, CrPC that ASI (complainant) was making demand of bribe and when he did not give any bribe to him, he searched his pocket and took out currency notes of Rs. 3,500/- and when he made demand to return the money a false case' has been registered against him. In very specific words the explanation which appellant has offered is that he was not carrying any forest produce in contravention to forest law and, therefore, why he would offer any bribe. The Supreme Court in Punjabrao v. State of Maharashtra, AIR 2002 SC 486 has categorically held that if the defence is found to be probable, due weightage should be given to it and it should not be compared with the burden of proving the case beyond reasonable doubt which is required to be proved by the prosecution. Admittedly appellant was having valid transit pass and this has been so admitted by prosecution's own witness Dy. Ranger Forest R.K. Dike (PW 7) also. Admittedly appellant was having valid transit pass and this has been so admitted by prosecution's own witness Dy. Ranger Forest R.K. Dike (PW 7) also. It is also borne out from the testimony of PW 7 who is a responsible officer of the Forest Department and whose evidence is corroborated by the evidence of Vi nay Kumar Sahu (DW 1) for whom transit pass was issued by the Forest Department, that any person may carry forest produce having transit pass in the name of some other person. Thus, according to us, when appellant was having valid documents with him why he will offer any bribe to complainant. Hence, according to us, prosecution has failed to prove the charge under section 8 of the Act framed against the appellant. 14. Apart from what we have held, one important fact which cannot be marginalized and blinked away is that as per prosecution's own case a sum of Rs. 3,500/- which according to ASI (complainant) was offered towards bribe by appellant was seized, but these currency notes were not confronted to the complainant when he appeared as PW 8 in his evidence. According to us, this was very much essential in order to hold that the appellant has committed any offence. Apart from this, no Panchnama was prepared mentioning the numbers of those currency notes in order to prove that appellant offered bribe to AS!. According to us, Panchnama of the currency notes mentioning their numbers should have been prepared and the same should have been tallied in the Court by producing the currency notes and this should have been proved from the testimony of complainant. For this another reason, we are of the view that the charge framed against the appellant is not proved. 15. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction passed against the appellant holding him to be guilty for the offence under section 8 of the Act is hereby set aside and he is acquitted from the said charge. The appellant is on bail, his bail-bonds are discharged. The amount of fine, if deposited, be refunded to the appellant. The appellant shall be free to file necessary application before the learned Special Judge to obtain back Rs. 3,500/which were seized from him by ASI Parasnath Yadav (PW 8).