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Madhya Pradesh High Court · body

2008 DIGILAW 716 (MP)

Navkant Sharma v. State of M. P.

2008-06-09

A.K.SHRIVASTAVA

body2008
ORDER 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 27.11.2001 passed by learned Special Judge, Gwalior in Special Case No.2/2001 convicting the appellant under sections 7, 13(a)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (in short "the Act") and sentencing him to suffer rigorous imprisonment of 1 year and fine of Rs.2,500/- in default further rigorous imprisonment of six months on first count and rigorous imprisonment of 1 year with a fine of Rs.2,500/- in default further rigorous imprisonment of 6 months on second count with a further stipulations that both the sentences shall run concurrently, the appellant has knocked the doors of this Court by preferring the appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of the prosecution is that Dashrath Singh Rawat (hereinafter referred to as "complainant") was having an electric connection provided by Madhya Pradesh Electricity Board in his flour mill. The electric meter become disordered as a result of which vide EX.P-4 dated 1.8.2000, he submitted an application to change the electric meter, since, the new electric meter was not available in the market. This application was addressed to Assistant Engineer of M.P. Electricity Board. In order to install a new meter, complainant met the appellant on 2.8.2000. It is said that appellant made a demand of illegal gratification of Rs.1,500/- from the complainant. Since the complainant was not desirous to give illegal gratification and was keen enough to get the appellant caught red handed, he submitted an application before the Special Police Establishment, Lokayukt, Gwalior which is EX.P-5 making complainant in it that appellant is making demand of illegal gratification of Rs.1,500/- in order to replace the electric meter. 3. On the basis of written complaint Ex.P-5, the law and the procedure envisaged under the Act as well as under Criminal Procedure Code set in motion. A tape-recorder was provided to the complainant by the Office of Special Police Establishment in order to record the conversation of bribe, as a result of which according to the prosecution again the complainant approached the appellant, who made the demand of illegal gratification from him. The transcript of tape-recorded conversation is EX.P-8. Thereafter, complainant again submitted another complaint EX.P-9 and on the basis of which, a Dehati Nalish Ex.P-10 was registered against the appellant. 4. The transcript of tape-recorded conversation is EX.P-8. Thereafter, complainant again submitted another complaint EX.P-9 and on the basis of which, a Dehati Nalish Ex.P-10 was registered against the appellant. 4. The Panch witnesses B.L. Karare (not examined) and Narayan Prasad Kori (PW8) were called in the Office of the Special Police Establishment and before them the complaint was read over. Thereafter, a demonstration of the change of colour of phenolphthalein powder test was conducted in presence of these Panch witnesses and on submitting the two currency notes having denomination of Rs.500/- each and five currency notes having denomination of Rs.100/- each by the complainant, they were treated by phenolphthalein powder. The treated currency notes were kept in the pocket of the shirt of the complainant and he was specifically directed that before the demand of bribe is made by the appellant, he should not touch the treated currency notes. 5. According to the case of prosecution, the trap party proceeded to the Office of the appellant. The complainant was directed to go inside the Office and to give the treated currency notes to the appellant when he makes demand of bribe. The complainant was also accompanied by two Police Constables viz., Siyaram Sharma (PW7) and Ummaid Singh (not examined) to overhear what actually is being transpired between the complainant and the appellant at the time of transaction of giving and taking of the bribe. 6. It is the further case of the prosecution that complainant went inside the chamber of appellant but he was not found there and the complainant was informed that appellant is sitting in the chamber of Assistant Engineer viz., Mohan Babu Jain (PW3). The complainant thereafter, entered inside the chamber of the Assistant Engineer and called the appellant outside. It is said that when appellant made the demand of bribe, the complainant took out the treated currency notes from his pocket and tried to handover the same to the appellant, but, the appellant directed complainant to give the same to acquitted co-accused Assistant Lineman Naresh Savita. On the direction of the appellant, the treated currency notes were given by the complainant to acquitted co-accused Naresh Savita. 7. On the direction of the appellant, the treated currency notes were given by the complainant to acquitted co-accused Naresh Savita. 7. Thereafter, on completion of the transaction of bribe, a signal was given by the complainant to the members of the trap party and immediately thereafter, the above said two constables viz., Siyaram Sharma (PW7) and Ummaid Singh (not examined) caught hold the hands of the acquitted co-accused Naresh Savita. It is said, that Naresh Savita told to the members of the trap party that at the instance of the appellant, he has accepted the amount. The hands of the acquitted co-accused, were subjected to phenolphthalein powder test and on dipping the fingers of the accused in the solution of Sodium Carbonate the colour of the solution turned to pink. The tinted hand wash of the acquitted co-accused was collected in a separate sealed bottle. 8. After the investigation was over and requisite sanction to prosecute the appellant was obtained, a charge-sheet was submitted before the learned Special Judge, who on going through the averments made in the charge-sheet framed charges punishable under section 7, 13(1)(d) read with section 13(2) of the Act against the appellant. Similar charges were also framed against the acquitted co-accused Naresh Savita. Needless to emphasize that both the accused persons abjured their guilt and pleaded complete innocence. The defence of the appellant is that neither he made any demand of bribe nor accepted the same. The further defence, which has been setforth during the cross-examination of the prosecution witnesses is that the amount of Rs.1,500/- was being demanded by the appellant towards the meter charges because the old meter of the complainant was burnt. 9. The learned Special Judge on the basis of the oral and documentary evidence placed on record came to hold that the charges framed against Assistant Lineman Naresh Savita are not proved and eventually, acquitted him from all the charges. However, on the basis of the evidence placed on record, learned Special Judge came to hold that the appellant did commit the offences for which he was charged and eventually convicted him and passed the sentences, which I have already mentioned hereinabove. 10. In this manner the present appeal has been filed. 11. However, on the basis of the evidence placed on record, learned Special Judge came to hold that the appellant did commit the offences for which he was charged and eventually convicted him and passed the sentences, which I have already mentioned hereinabove. 10. In this manner the present appeal has been filed. 11. The contention of Shri Rakesh Sharma, learned counsel for the appellant is that in the present case there is no clinching evidence of the prosecution that appellant ever made any demand of bribe and accepted the same. The contention of the learned counsel for the appellant is that in order to prove the charges under section 7, 13(1)(d) and 13(2) of the Act, it was incumbent upon the prosecution to prove that appellant ever made demand of the bribe and accepted the same. Since this has not been proved by the prosecution, the learned Special Judge erred in convicting the appellant. It has also been contended by him that appellant was not having any domain over the supply of electric meter which was required to be installed and therefore, there was no occasion to make the demand of bribe. In support of his contention, learned counsel has placed heavy reliance on the decision of Supreme Court Ram Prakash Arora v. State of Punjab [1972 CAR 344 (SC)]. He has further placed reliance on the another judgment of the Supreme Court State v. K. Narasimhachary [ 2006 CrLJ 518 ]. Lastly, it has been submitted that since the defence which has been put-forth by the appellant during the cross-examination of the prosecution witnesses is probable, due weight-age should be given to it. In this context he has placed reliance on the decision of Supreme Court Punjabrao v. State of Maharashtra [ AIR 2002 SC 486 ]. 12. On the other hand Shri B.D. Mahore, learned Deputy Government Advocate argued in support of the impugned judgment and has submitted that looking to the testimony of the complainant, it is proved that appellant made demand of illegal gratification and on his instance, the complainant handed over the amount of bribe to acquitted co-accused Naresh Savita and if this is the position, the learned trial Court did not err in passing the impugned judgment and, therefore, it has been prayed that appeal be dismissed. 13. 13. Having heard the learned counsel for the parties; I am of the view that the appeal deserves to be allowed. 14. The charge-sheet was submitted against the present appellant as well as Naresh Savita, however, learned Special Judge did not find the charges to be proved against Naresh Savita and eventually, he has been acquitted by the impugned judgment. I may further mention here that the evidence of tape-recorded conversation of appellant and complainant has been disbelieved by learned Special Judge. 15. In order to convict the appellant for the charges framed against him, it was incumbent upon the prosecution to prove that any demand of bribe .was made by the appellant at the time of acceptance of money. In this context, I may profitably place reliance on two decisions of the Supreme Court they are Om Prakash v. State of Haryana [2006(II) MPWN 1= 2006(2) SCC 250 ], and V. Venkata Subbarao v. State represented by Inspector of Police A.P. [ AIR 2007 SC 489 ]. On the basis of law laid down by the Supreme Court in the aforesaid two decisions I shall now examine the evidence of the complainant as well as the evidence of other prosecution witnesses. Before marshaling the evidence of the complainant it would be apposite to mention that Narayan. Prasad Kori (PW8) who is the trap witness has stated that what actually transpired between the appellant and the complainant when the appellant directed the complainant to give the treated currency notes to acquitted co-accused Naresh Savita, he could not hear. There is no other witness in order to corroborate the statement of the complainant in this regard. The contention of learned counsel for the appellant is that the testimony of complainant has not been corroborated by any independent witness and it would be highly unsafe to place reliance on the uncorroborated testimony of the complainant whose status is not better than that of an accomplice. In this context the decision of Supreme Court in case of Panalal Damodar Rathi v. State of Maharashtra [ AIR 1979 SC 1191 ], has been placed reliance. However, it is equally true that if the testimony of complainant inspire full confidence and is clear, cogent and trustworthy, the conviction cannot be said to be illegal, merely it proceeds upon the uncorroborated testimony of the accomplice. However, it is equally true that if the testimony of complainant inspire full confidence and is clear, cogent and trustworthy, the conviction cannot be said to be illegal, merely it proceeds upon the uncorroborated testimony of the accomplice. At this juncture, it will also be fruitful to read illustration (b) to section 114 of the Evidence Act which says that "an accomplice is unworthy of credit, unless he is corroborated in material particulars". Thus, from the very beginning the law has developed that the corroboration of the evidence of an accomplice is a rule of prudence. 16. In the present case in order to take out the grain from the chaff, it is to be ascertained that what actually transpired between the complainant and the appellant when the complainant tried to handover the money to the appellant. In this context para 8 of the evidence of the complainant is very much material. On close scrutiny of this para it reveals that nowhere appellant made demand of illegal gratification from the complainant and this much only he has stated that he has managed the amount and requested appellant to accept the money which appellant directed to give it to acquitted co-accused Naresh Savita. Indeed there is no independent corroboration of the statement of the complainant and even if his statement is accepted to be true, it is difficult to hold that appellant made any demand of bribe from the complainant. The Supreme Court in the case of Smt. Meena Balwant Hemke v. State of Maharashtra [ AIR 2000 SC 3377 ], in para 9 has categorically held as under: ".... The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case...." 17. In the present case also there is no independent corroboration of the testimony of complainant in this regard that what actually transpired between the complainant and the appellant at the time when complainant tried to give the money to the appellant. 18. The defence of appellant is that the amount which was being demanded by appellant was towards the replacement of new electric meter since it was burnt. 18. The defence of appellant is that the amount which was being demanded by appellant was towards the replacement of new electric meter since it was burnt. The Assistant Engineer Mohanaabu Jain (PW3) has categorically stated in para 8 of his testimony that in case the meter is burnt, Rs.1,500/- is required to be deposited and if the electric meter is not in working condition, the same is required to be replaced and in that situation no amount is taken from the subscriber. The Assistant Engineer (PW3) has further admitted that since the electric meter of the complainant became short, therefore, it would come under the ambit and sweep of 'Burnt". True, later on in para 9 he states that without holding any test he could not say whether the said meter was burnt or not. Thus, it is clear that this witness has not at all examined the impugned electric meter. The prosecution did not take any pains to submit any report of the expert whether the impugned electric meter was burnt or it was otherwise became unusable. This was very much essential because if the electric meter became unusable on account that it had burnt, Rs.1,500/- was required to be deposited by the subscriber. At the cost of repetition I may again mention here that as per the case of prosecution a demand of illegal gratification of Rs.1,500/- was made by the appellant, which is exactly equivalent to the cost of electric meter. Hence, it cannot be said that the amount which was being demanded by the appellant was for the bribe or the costs of the replacement of new electric meter, which was already burnt. 19. The Supreme Court in the case of Bal Krishan Sayal v. State of Punjab [ AIR 1987 SC 689 ], has held that the amount of bribe alleged to have been offered, if it is almost equal to the amount which the complainant was required to deposit towards legal charges, it would be difficult to hold that the amount which was demanded by the accused was towards bribe. Thus, the defence which has been set forth by the appellant appears to be probable. The Supreme Court in the case of Punjabrao (supra), has categorically held that if the defence is found probable, due weight-age should have been given to it. Thus, the defence which has been set forth by the appellant appears to be probable. The Supreme Court in the case of Punjabrao (supra), has categorically held that if the defence is found probable, due weight-age should have been given to it. In the case of V. Ventaka Subbarao (supra), also the similar view has been taken by the apex Court in para 25 that "the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution". In this case the Supreme Court placed reliance on its earlier decision M.S. Narayana Menon @ Mani v. State of Kerala and another [ (2006)6 SCC 39 ], wherein it has been held as under : "Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding." 20. In the complaint Ex.P-4 the complainant has stated that electric meter has become disordered and it has not been stated by him that it has been burnt. But it is equally true that complainant has not taken any opinion and report of any expert that the meter was not burnt. Apart from this, on bare perusal of complaint EX.P-4 it is gathered that complainant was directed to purchase a new meter which would mean that meter was totally became unusable and therefore, inference could be drawn that it was burnt. 21. For the reasons stated hereinabove, I am of the view that the charges framed against the appellant are not proved. Eventually, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed against the appellant is hereby set aside and the appellant is acquitted from all the charges. The appellant is on bail, his bail bonds are discharged. The amount of fine, if deposited, be refunded to him.