Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 578 (MP)

BAIJNATH PRASAD PATEL v. STATE OF M. P.

2008-04-11

A.K.SHRIVASTAVA

body2008
Judgment A.K. SHRIVASTAVA, J. ( 1. ) Feeling aggrieved by the judgment of conviction and order of sentence dated 10/11/1995 passed by learned Special Judge, Rewa in Special Case No. 3/92, convicting the appellant under sections 7 and 13 (1) (d) read with section 13 (2) of the Prevention of Corruption Act, 1988 (in short the Act) and thereby sentencing him to suffer rigorous imprisonment of one year and six months and to pay a fine of Rs.500/-, in default of payment of fine, further RI of six months, the appellant has knocked the door of this Court by preferring this appeal under section 374 (2) of the Code of Criminal Procedure, 1973. ( 2. ) In brief the case of prosecution is that on 3/11/1988 the appellant was serving on the post of Head Constable in Police Station Baikunthpur, District Rewa. A case was registered against complainant Kamalbhan Singh under sections 323, 294,341 and 506 IPC and complainant Kamalbhan Singh submitted an application for the grant of anticipatory bail which was allowed and he was directed to be enlarged on bail on his furnishing the bail bonds as directed by the Court which allowed the application. ( 3. ) It is said that in order to accept the papers of anticipatory bail the appellant made demand of illegal gratification of Rs.100/- from the complainant which he did not want to give, as such he submitted an application on 3/11/1988 before the Dy. Superintendent of Police, Special Police Establishment Lok Ayukta, Rewa making complaint that appellant is making demand of Rs. 100/- in order to accept the papers of anticipatory bail. ( 4. ) On lodging of the complaint (Ex.P-4) Office of Special Police Establishment came into action. A demonstration of trap was made and currency note of Rs.100/- covered by phenolphthalein powder was handed over to the complainant with the direction that he should not touch the currency note till the appellant makes demand of bribe. The complainant was pacified that after passing on the currency note to the appellant, he (complainant) will give signal to the trap party so that the appellant may be caught red-handed. Thereafter trap party proceeded in a jeep to the Police Station Baikunthpur where the appellant was posted. The complainant was pacified that after passing on the currency note to the appellant, he (complainant) will give signal to the trap party so that the appellant may be caught red-handed. Thereafter trap party proceeded in a jeep to the Police Station Baikunthpur where the appellant was posted. Complainant Kamalbhan Singh told the appellant that he has brought the bribe of Rs.100/- for him as such he (appellant) told that let us go towards the hotel (restaurant) to have a cup of tea. It is said that in the restaurant shadow witnesses Jawahar and Pushparaj Singh were already sitting. At the hotel appellant made demand of bribe, eventually, in the restaurant currency note of Rs. 100/- covered by phenolphthalein powder was handed over by the complainant to the appellant which was kept by the appellant in the pocket of his trouser. Thereafter a signal was given by the complainant to the trap party, as a result of which the members of trap party rushed towards the restaurant. On the interrogation made by the trap party, appellant threw currency note on the bench. However, the appellant was caught and his hands were washed in the solution of sodium carbonate and the hand wash solution turned to pink colour. ( 5. ) After completing investigation a charge-sheet was submitted in the Special Court. The learned Special Judge on the basis of allegations made in the charge- sheet framed charges punishable under sections 7 and 13 (1) (d) read with section 13 (2) of the Act which he denied and requested for trial. ( 6. ) In order to prove the charges prosecution examined as many as ten witnesses and placed Exs.P-1 to P-18, the documents on record. ( 7. ) The defence of the appellant is that he has been falsely implicated because the complainant was keen enough and was insisting him to close the case for which the appellant was not ready and, therefore, he has been falsely roped in the present case. ( 8. ) Learned Special Judge on the basis of oral and documentary evidence placed on record came to hold that the appellant did commit the offences for which he was charged and eventually convicted him and passed the sentence which I have already mentioned here-in-above. ( 9. ( 8. ) Learned Special Judge on the basis of oral and documentary evidence placed on record came to hold that the appellant did commit the offences for which he was charged and eventually convicted him and passed the sentence which I have already mentioned here-in-above. ( 9. ) In this manner the appellant has preferred this appeal assailing the impugned judgment of conviction and order of sentence passed by learned Special Judge. ( 10. ) The contention of Shri Shobhitaditya, learned counsel for the appellant is that if the evidence of complainant Kamalbhan Singh (PW-2) and shadow witness Pushparaj Singh (PW-3) is considered in proper perspective it is revealed that their evidence is inconsistent to each other on the material point of recovery of currency note and if that would be the position, learned Special Judge erred in convicting the appellant. In this context he has also invited my attention to the evidence of trap witness K.L. Gupta (PW-7) and has submitted that this trap witness has not stated about the giving of the signal by the complainant to the trap party and thus story which has been cooked by the prosecution would not implicate the appellant in the present case. ( 11. ) On the other hand, Shri Aseem Dixit, learned Public Prosecutor for the respondent/State has argued in support of the impugned judgment. ( 12. ) Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. ( 13. ) On going through complaint Ex.P-4 it is gathered that the same was lodged on 3/11/88 by complainant Kamalbhan Singh (PW-2) to the Dy. Superintendent of Police, Special Police Establishment, Lok Ayukta Office, Rewa Division, Rewa. In the complaint it has been stated by him that appellant is making demand of Rs. 100/- as bribe and has told that the papers of anticipatory bail would be accepted only if the amount of Rs. 100/- is given to him. This complaint has been proved by complainant Kamalbhan Singh when he appeared in the Court as PW-2. In his deposition he has specifically stated that after making complaint a trap was arranged and currency note of Rs.100/- covered by phenolphthalein powder was given to him and he was directed to hand over the same to the appellant only when he makes demand of bribe. In his deposition he has specifically stated that after making complaint a trap was arranged and currency note of Rs.100/- covered by phenolphthalein powder was given to him and he was directed to hand over the same to the appellant only when he makes demand of bribe. Thereafter in a jeep he along with the members of trap party went towards the Police Station Baikunthpur. Near the bus stand he was dropped from the jeep by the trap party and thereafter he alone went inside the police station. In the police station he told to the appellant that he has brought the money which he (appellant) has demanded. Further he has stated that he told to the appellant that after obtaining bribe, his papers of anticipatory bail may be accepted. Thereafter appellant suggested complainant to have a cup of tea first and thereafter he (complainant) along with the appellant went to the hotel of Ramji Gupta where shadow witnesses Jawahar and Pushparaj Singh were already sitting. In para 6 he has specifically stated that in the hotel on demand being made by the appellant, he (complainant) handed over the said amount to him which was kept by the appellant in the right pocket of his trouser. Thereafter this witness gave signal to the trap party, as a result of which they rushed to the hotel of Ramji Gupta and caught the appellant. The hands of the appellant were washed in the solution of sodium carbonate and the solution turned to pink colour. The currency note which was kept by the appellant in the pocket of his trouser was also recovered and the pocket of his trouser was also washed in the solution of sodium carbonate and on washing the same the solution turned to pink colour. A handkerchief which was also kept by the appellant in the pocket of his trouser was recovered. The pocket of trouser and handkerchief were also washed in the solution of sodium carbonate and the colour of the solution turned to pink. In para 30 of his cross- examination also he has stated the same version. True there are some omissions in his case-diary statement, but, according to me, they are minor and do not go to the root of the case. In para 30 of his cross- examination also he has stated the same version. True there are some omissions in his case-diary statement, but, according to me, they are minor and do not go to the root of the case. Very specifically in para 31 of his cross-examination complainant has stated that when he and appellant were drinking the tea and were eating the snacks, he (complainant) gave the amount of bribe to him and on giving signal to the trap party, members of the trap party rushed and caught the appellant. Thus I am of the view that from the evidence of the complainant not only the demand of bribe but also its acceptance has been proved. ( 14. ) The statement of complainant Kamalbhan Singh (PW-1)has been corroborated by the evidence of shadow witness Pushparaj Singh (PW-3), who has also stated that after passing on the money to the appellant, signal was given and trap party caught the appellant and when the hands of the appellant were washed colour of the chemical turned to pink. True it has been so stated by this witness in para 15 of his testimony that appellant threw currency note by taking out it from the pocket of his trouser, but this act of appellant will not dilute the case of prosecution. Because, looking to the circumstances, even if it is held that appellant threw the currency note, it cannot be said that charges are not proved. If the appellant has thrown the currency note on seeing the trap party, his act of throwing the currency note would rather strengthen the case of prosecution. It can be inferred that in order to demonstrate himself to be an innocent person he threw the currency note on seeing the trap party. ( 15. ) Similar type is the evidence of K.L.Gupta (PW-7) who is a witness to the trap. I do not find any substance in the submission of learned counsel for the appellant that trap witness K.L. Gupta (PW-7) has not stated that after receiving signal, trap party went to catch the appellant and therefore it raises a doubt in regard to the implication of appellant in the alleged offence. The demand of bribe and its acceptance has been proved from the testimony of complainant Kamalbhan Singh (PW-2) and shadow witness Pushparaj Singh (PW-3) and there is also recovery of currency note of Rs. The demand of bribe and its acceptance has been proved from the testimony of complainant Kamalbhan Singh (PW-2) and shadow witness Pushparaj Singh (PW-3) and there is also recovery of currency note of Rs. 100/- from appellant. It is immaterial whether it was thrown by the appellant or it was recovered from the pocket of his trouser. ( 16. ) Under section 20 of the Act there is statutory presumption of acceptance of bribe if the offence under section 7 of section 11 or clause (a) or (b) of sub- section (1) of section 13 is proved and it is for the accused to explain and rebut the presumption. Though the defence of appellant in his statement recorded under section 313, Cr.P.C is that in order to get the criminal case closed against complainant for which he was not agreeing, he has been falsely implicated, but in support of this defence, he has not examined any witness. From the statement of prosecution witnesses the defence is not found to be probable because only suggestion has been made in this regard. The Supreme Court in the case of Girja Prasad v. State of M.P. (2007) 7 SCC 625 has held once it is proved that the amount has been received by the accused, presumption under section 4 (corresponding section 20 of the Act of 1988) would get attracted. In such a case,it would be wholly immaterial whether the said acceptance of amount was for him or for someone else. It would also be immaterial whether the accused was or was not in a position to oblige the complainant. The Supreme Court has further held that an accused can rebut the said presumption by leading evidence. In paras 21 and 31 of the said decision the Supreme Court has laid down the law that the doctrine of preponderance and probability would not be applicable where no evidence was adduced by the accused to rebut the statutory presumption. The Apex Court held that merely by taking the defence of total denial and false application the said doctrine would not be attracted. In the present case also no evidence has been led by the appellant in regard to his defence. Hence the decision of Girja Prasad (supra) is fully applicable in the present case. ( 17. The Apex Court held that merely by taking the defence of total denial and false application the said doctrine would not be attracted. In the present case also no evidence has been led by the appellant in regard to his defence. Hence the decision of Girja Prasad (supra) is fully applicable in the present case. ( 17. ) Learned counsel for the appellant has placed reliance on two decisions of the Supreme Court; they are Subash Parbat Sonvane v. State of Gujrat 2002 Cri.L.J. 2787 and Kewal Krishan v. State of Punjab AIR 1989 SC 950 . In the case of Kewal Krishan (supra) the evidence of complainant was not found trustworthy and hence the accused was acquitted. In the present case the evidence of complainant Kamalbhan Singh (PW-2) and shadow witness Pushparaj Singh (PW-3) is found to be quite reliable. The decision of Subat Parbat Sonvane (supra) is also not applicable because in the present case there is overwhelming evidence that not only the appellant made demand of illegal gratification but it has also been accepted by him coupled with other important circumstance that recovery of Rs.100/- from him is also proved. Thus, I am of the view that learned Special Judge did not err in convicting the appellant for the charges imposed on him as they are proved. ( 18. ) However, looking to the age of the appellant as he appears to be near about 79 years today, he is directed to suffer minimum jail sentence of one year. The sentence of fine imposed is set aside. It is made clear that the jail sentence of one year would be simple imprisonment. ( 19. ) With the above-said modification in the sentence, this appeal is found to be bereft of any substance and the same is hereby dismissed. The appellant is on bail, his bail-bonds are cancelled. He is directed to surrender before the trial Court to serve out the sentence. Appeal dismissed.