Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 719 (MP)

Harilal Rajpoot @ Haridas Baba v. State Of M. P.

2008-06-09

A.K.SHRIVASTAVA

body2008
JUDGMENT : Feeling aggrieved by the judgment of conviction and order of sentence dated 11-7-2003 convicting the appellant under sections 7, 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988 (for brevity 'the Act') and sentencing him to suffer R.I. of one year and fine Rs. 2000/-, in default, further R.I. of three months on first count and R.I of one year and fine of Rs.2000/-, in default, further R.I. of three months on second count with a further stipulation that both the sentences shall run concurrently, the appellant has come up in this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that at the relevant point of time, the appellant was serving on the post of Patwari, Ramjilal (hereinafter referred to as 'the complainant') on account of death of his father submitted an application for mutation in the revenue record. On 11-1-1999 the Assistant Settlement Officer certified the mutation in the name of complainant. However, when complainant met to the appellant in order to endorse his name in pursuance to the order of Assistant Settlement Officer, he made demand of bribe of Rs. 7000/- and when 8 days prior to 19-2-1999 complainant again contacted the appellant, the negotiation was settled for Rs.1000/- between them. Since the complainant did not want to give any amount of illegal gratification to the-appellant and was desirous to get the appellant caught red handed, a written complaint on 19-2-1999 was submitted by him before the Superintendent of Police, Special Police Establishment, Lokayukta Gwalior, After preliminary enquiry a case was registered and a tape recorder was handed over to complainant to record the conversation of bribe between him and the appellant. The complainant was also accompanied by one constable Ravindra Singh. In between 19-2-1999 and 20-2-1999 complainant could not meet the appellant, however, on 21-2-1999 the complainant succeeded in meeting the appellant at 4.00 P.M. in Tehsil Office, Dabra where he again made a request to the appellant to endorse his name in the revenue record. The complainant was also accompanied by one constable Ravindra Singh. In between 19-2-1999 and 20-2-1999 complainant could not meet the appellant, however, on 21-2-1999 the complainant succeeded in meeting the appellant at 4.00 P.M. in Tehsil Office, Dabra where he again made a request to the appellant to endorse his name in the revenue record. At that juncture, it is said that appellant again made demand of bribe of Rs.1000/- from the complainant and it was settled between complainant and appellant that the amount of bribe would be given on 22-2-1999 and thereafter the Rin Pustika a statutory document under section 114-A of the M. P. Land Revenue Code would be given to the complainant which was kept by the appellant 8 days prior to 19-2-1999. 3. It is the further case of prosecution that again a written complaint was submitted by the complainant in the office of Special Police Establishment and thereafter the law and the procedure prescribed under the Act and Criminal Procedure Code set in motion. 4. Two witnesses, namely, J. K. Dubey (PW-6) and Hariom Chaturvedi (PW-12) who are Assistant Teachers were made Panch Witnesses and before these witnesses the complaint of the complainant was read over. Thereafter on submitting 10 currency notes having denomination of Rs. 100/-, phenolphthalein powder was applied on each currency note and these treated currency notes were kept in the pocket of the Trouser of the complainant. The complainant was directed not to come in contact with these treated currency notes and he should hand over these treated currency notes to the appellant only when he (appellant) makes demand of illegal gratification. Thereafter the trap party proceeded to Tehsil Office, Dabra where the appellant was serving on the post of Patwari. It is said that on being made demand of bribe by the appellant, the complainant took out the treated currency notes and handed over the same to the appellant who after receiving, started counting them. Thereafter, the complainant gave signal to the members of the trap party as a result of which the police constables arrived and on seeing them, the appellant threw the currency notes on the floor and they were seized. The Rin Pustika was also seized from the appellant. 5. Thereafter, the complainant gave signal to the members of the trap party as a result of which the police constables arrived and on seeing them, the appellant threw the currency notes on the floor and they were seized. The Rin Pustika was also seized from the appellant. 5. According to the prosecution, the hands of the appellant were subjected to phenolphthalein powder test and the result was found to be positive since on dipping the fingers of the hands of appellant in the solution of sodium carbonate, the colour of the solution turned to pink. Similarly, the fingers of the hands of complainant were also dipped in the solution of sodium carbonate and on dipping the fingers the colour of the solution turned to pink. The tainted hand wash of the appellant as well as of complainant were kept in separate sealed bottle and they were sent for chemical examination. 6. 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 against the appellant framed charges punishable under sections 7, 13(1) (d) read with section 13(2) of the Act which appellant denied and requested for the trial. 7. In order to bring home the charges, the prosecution examined as many as 18 witnesses and placed Ex. P/1 to P/34 the documents on record. 8. The defence and the explanation which appellant offered in his statement recorded under section 313, Criminal Procedure Code as well as during the cross-examination of the witnesses of the prosecution is that indeed a case of encroachment of Government land was filed against the complainant in which the Naib Tehsildar, Circle Pichhore passed an order on 18-12-1998 imposing fine of Rs. 1000/- on the complainant and it was directed to the Patwari i.e. appellant to submit the report of dispossession. The further defence of appellant is that ceiling limit was given to him that he should realize the amount of fine of Rs. 1000/- from the complainant till 22-2-1999 and the amount of Rs. 1000/- which has been seized by the appellant is the amount of fine which was imposed upon the complainant and which was required to be realized from him by this date i.e. 22-2-1999. In support of his defence, the appellant filed certified copy of the order of Tehsildar. Ex. 1000/- from the complainant till 22-2-1999 and the amount of Rs. 1000/- which has been seized by the appellant is the amount of fine which was imposed upon the complainant and which was required to be realized from him by this date i.e. 22-2-1999. In support of his defence, the appellant filed certified copy of the order of Tehsildar. Ex. D/10 dated 18-12-1998, recovery notice Ex. D/11 issued against the appellant as well Ex. D/12 which is Kishta Band Khatoni (revenue record) in respect to recovery against the complainant in regard to certain other taxes and land revenue. The appellant also submitted an application Ex.D/14 addressed to Naib Tehsildar, Dabra dated 22-2-1999 which was received on 23-2-1999 indicating therein that in pursuance to the order against the complainant, he received an amount of Rs. 1000/- towards fine from the complainant but he was caught by the Lokayukta persons and they did not accept the explanation offered by the appellant and since the amount of Rs. 1000/- has been taken away by the members of the trap party, he is unable to deposit the amount. The appellant also examined Jai Narain (DW-1) and Manoj Kumar Sharma (DW-2) in support of his defence. 9. The learned Special Judge on the basis of the evidence placed on record came to hold that the appellant committed the offence for which he was charged and eventually convicted and passed the sentence which I have already mentioned hereinabove. In this manner the present appeal has been filed by the appellant. 10. The contention of Shri Atul Gupta, learned counsel for the appellant is that the amount which has been received from appellant is towards the payment of the amount of fine which he (appellant) was required to realize from the complainant up to 22-2-1999 and if that would be the position the learned trial court erred in convicting the appellant. By placing reliance on the testimony of Revenue Inspector Kailash Narain Shrivastava (PW-8) as well as the finding of learned trial Court in para 46, it has been propounded by learned counsel that there was no motive for the appellant to make the demand of bribe because the name of the complainant was already endorsed in the statutory document of Rin Pustika and therefore there was no occasion for the appellant to make any demand of bribe. 11. 11. On the other hand, Shri. Mahore, learned Deputy Govt Advocate, argued in support of the impugned judgment and has submitted that the defence, which has been set forth by the complainant is afterthought because the document Exh.D-14 which is an application addressed to Naib Tehsildar was given on the next date viz. 23-2-1999 and not on the date of the trap which is 22-2-1999 and therefore learned Special Judge did not err in not accepting the defence put forth by the appellant. The contention of the learned Deputy Govt. Advocate is that since there is a recovery of Rs.1,000/- from the appellant and which has also been so admitted by him, section 20 of the Act would come into play and it would be presumed that the appellant has accepted the amount of bribe. On these premised submissions, it has been argued by the learned Deputy Govt. Advocate that this appeal sans substance and the same be dismissed. 12. Having heard the learned counsel for the parties. I am of the view that this appeal deserves to be allowed. 13. In order to hold that the appellant has committed the offence under sections 7, 13(1)(d) read with section 13(2) of the Act, it is necessary for the prosecution to prove by placing cogent evidence that the appellant made demand of bribe and accepted the same. In order to prove these essential ingredients, the prosecution examined complainant and the Panch witnesses J. K. Dubey (PW-6) and Hariom Chaturvedi (PW-12). I shall now examine the testimony of these witnesses one by one. 14. So far as the evidence of the complainant is concerned, he is not worth reliable as he has not supported the case of the prosecution and he was declared hostile. In very specific words, in para 8, complainant (PW-9) has stated that the amount of Rs. 1000/- was demanded by the appellant was towards the encroachment. Thereafter, this witness was declared hostile and nothing crept out from his testimony in order to hold that he has supported the case of the prosecution. Thus, the evidence of complainant is not at all useful to the prosecution. 15. 1000/- was demanded by the appellant was towards the encroachment. Thereafter, this witness was declared hostile and nothing crept out from his testimony in order to hold that he has supported the case of the prosecution. Thus, the evidence of complainant is not at all useful to the prosecution. 15. So far as the evidence of surveillance witnesses namely J. K. Dubey (PW-6) and Hariom Chaturvedi (PW-12) is concerned, suffice it to say that J. K. Dubey (PW-6) in paras 17 and 18 has specifically stated that what actually transpired in between the appellant and the complainant at the time of giving and taking of the money, he was unable to hear. This witness has put his inability to state that whether the amount of Rs.1,000/- was demanded by the appellant towards the payment of fine which was imposed on the complainant. Similarly, the shadow witness Hariom Chaturvedi (PW-12), in para 27, has stated that he did not hear what actual transpired between the complainant and the appellant. Thus, there is mystery that what actually transpired in between the appellant and complainant at the time of accepting Rs. 1000/-. The Supreme Court in the case of Smt. Meena Balwant Hemke vs. State of Maharashtra, AIR 2000 SC 3377 , in para 9, has specifically held that it should come in the testimony of the prosecution witnesses that what actually transpired between the complainant and the appellant at the time of alleged offence and acceptance of bribe. In the present case also, there is no evidence of prosecution witness in this regard. The complainant has been declared hostile and the Panch witnesses J.K. Dubey (PW-6) and Hariom Chaturvedi (PW-12) did not say what actually transpired in between the appellant and the complainant when the alleged demand of bribe was given. 16. Much reliance has been placed by Shri. Mahore, learned Deputy Govt. Advocate, on the transcript of the tape-recorded evidence but the said evidence cannot be accepted because no scientific test has been applied whether in the cassette the voice is of the appellant and the complainant. Apart from this, on going through the transcript Exh.P-17 on page 3, it is revealed that the conversation which took place is that the complainant would be in difficulty in not giving (depositing) the money he (appellant) is least bothered because he is not going to be benefited in any manner. Apart from this, on going through the transcript Exh.P-17 on page 3, it is revealed that the conversation which took place is that the complainant would be in difficulty in not giving (depositing) the money he (appellant) is least bothered because he is not going to be benefited in any manner. Thus, from the transcript also it is not clear that the amount which the appellant was insisting to give was towards the bribe. 17. Now, I shall consider the defence which has been set forth by the appellant. It is borne out from the record that a case of encroachment of Govt. land was instituted against the complainant and the same was decided by Naib Tehsildar and an order was passed by the Naib Tehsildar on 18-12-1998 (Ex.D-10) imposing fine of Rs. 1,000/- on the complainant since he encroached the Govt. land. Thereafter, vide Exh.D-11, a recovery order in terms of the provisions of M. P. Land Revenue Code was issued against the complainant in which Rs. 1,000/- was directed to be realised towards the amount of fine and Rs. 2/- towards the process fee in total Rs. 1002/-. This recovery order Exh. D.-11 was issued on 6-2-1999. In this document, it was directed to the complainant to deposit an amount of Rs. 1,002/- within fifteen days and 22-2-1999 the date was fixed to submit the report. It is pertinent to mention here that the date of the alleged trap is also 22-2-1999 and the defence of the appellant is that he was insisting the complainant to deposit the amount of fine Rs. 1,000/-. 18. On going through the arrest memo Exh.P-23, it is gathered that appellant was arrested at 6:15 pm on 22-2-1999 and naturally sometime must have been spent to complete the entire proceeding and by that time the night hours would have started and therefore it was not possible for the appellant to submit any application to Naib Tehsildar though the application Exh.P-14 is dated 22-2-1999 but the same was received by Naib Tehsildar on 23-2-1999. Since on 22-2-1999 the post trap proceedings were completed after the office hours and it could be inferred that night hours must have started and therefore no option was left to the appellant except to submit the application Exh.D-14 on the next date viz. 23-2-1999. Since on 22-2-1999 the post trap proceedings were completed after the office hours and it could be inferred that night hours must have started and therefore no option was left to the appellant except to submit the application Exh.D-14 on the next date viz. 23-2-1999. On going through the Exh.D-14, it is revealed that the explanation which has been given by the appellant is that in pursuance to the order of Naib Tehsildar to realise the amount of fine Rs.1,000/-, the appellant made the demand of Rs. 1,000/- from the complainant which he gave to deposit and as soon as he obtained the amount, the Lokayukta persons came and caught hold and seized the money from him and as such he is unable to deposit the amount. It has also been stated in this document that though the appellant gave explanation to the members of the trap party but they did not accept the same. Thus, proper explanation has been accorded by appellant that the amount of Rs. l,000/- which he has received is not towards the bribe but for the deposit of the amount of fine imposed on the complainant on account of trespassing the Govt. land. The Supreme Court in the case of Punjabrao vs. State of Maharashtra, AIR 2002 SC 486 has categorically held that if the defence is probable due weightage should be given to it. Similarly, the Supreme Court in the case of V. Venkata Subbarao vs. State represented by Inspector of Police, A. P., AIR 2007 SC 489 , in para 25, has held that in a trap case the burden on accused does not have to meet the same standard of proof as is required to be made by the prosecution. The Supreme Court placed reliance on an earlier decision M. S. Narayana Menon alias Mani vs. State of Kerala and another, (2006) 6 SCC 39 , in which it has been held by the Apex Court that the onus on an accused is not as heavy as that of the prosecution. The Supreme Court further explained that such onus can be compared with a defendant in a civil proceeding. To me, there is no evidence on record in order to hold that the demand of Rs. 1,000/- which was made by the appellant was towards the illegal gratification. 19. I do not find any substance in the submission of learned Deputy Govt. To me, there is no evidence on record in order to hold that the demand of Rs. 1,000/- which was made by the appellant was towards the illegal gratification. 19. I do not find any substance in the submission of learned Deputy Govt. Advocate that since there is recovery of money from the appellant section 20 of the Act would come into play and it would be presumed that appellant has accepted the bribe. The Supreme Court in the case of T. Subramanian vs. State of T. N., (2006) 1 SCC 401 , has categorically held that mere proof of receipt of money by accused in absence of proof of demand and acceptance of money as illegal gratification, the guilt is not established and if the accused offers reasonable and probable explanation based on evidence that the money was accepted by him other than an illegal gratification, accused will be entitled to acquittal. In the present case, the appellant has proved by preponderance of probabilities that the money of Rs. 1,000/- which has been paid to him is towards the deposit of the amount of fine imposed upon the complainant. In the case of V. Venkata Subbarao (supra), the Supreme Court in para 26 by placing reliance on its earlier decision in Union of India through Inspector, CBI vs. Purnandu Biswas, (2005) 12 SCC 576 held that in absence of proof of demand of illegal gratification by the accused, section 20 of the Act has no application and the said provision is not attracted. In this context, I may also profitably place reliance on another decision of the Supreme Court Omprakash vs. State of Haryana, 2006(2) SCC 250 . 20. On going through the evidence of Kailash Narayan Shrivastava (PW-8) who at the relevant point of time was serving on the post of Revenue Inspector as well as the finding rendered by the Special Judge in para 46, it is revealed that there was no motive for the appellant to make any demand of bribe. The Revenue Inspector (PW-8) has categorically stated that on 17-1-1999 viz. The Revenue Inspector (PW-8) has categorically stated that on 17-1-1999 viz. one month, five days prior to the date of trap, appellant after endorsing the name of the complainant in the Rin Pustika and thereafter on 17-2-1999 viz five days prior to the date of trap, submitted the Rin Pustika to him and on that date this authority put the signature which would mean that on 17-2-1999 the mutation order was carried out in favour of the complainant in the Rin Pustika and thereafter the same was returned back to the Patwari because this document is not given directly to the complainant. At this juncture, I would like to consider another important document Exh.D-12 which is Kisht-Band Khathani in respect to recovery and on close scrutiny of this document it is revealed that appellant and his three brothers were required to pay certain taxes and land revenue and in column No. 9 the name of complainant Ramjilal etc. has been mentioned and a date of payment has also been endorsed as 20-2-1999. This endorsement is also required to be made in the Rin Pustika and looking to the nature or the work of Patwari which is very heavy it is always not necessary that as soon as the endorsement in the Kisht Band Khatauni of recovery is made on the same date the endorsement should be made in the Rin Pustika. Therefore, if the Rin Pustika was kept by the appellant for another two days to make necessary endorsement it cannot be said that appellant made demand of illegal gratification. On going through the testimony of the Revenue Inspector Kailash Narayan Shrivastava (PW-8), it is revealed that no particular time and duration has been fixed under the law that within particular period, necessary endorsement should be made by the Patwari. Thus, the reason of keeping the Rin Pustika for two days by the appellant has been properly explained by him. Since the name of the appellant was already mutated and was also implemented by endorsing his name in the Rin Pustika, there was no occasion for the appellant to make any demand of bribe. In this context, the decision of Ganga Kumar Shrivastava vs. State of Bihar, (2005)6 SCC 211 , para 22, may be taken note of. Since the name of the appellant was already mutated and was also implemented by endorsing his name in the Rin Pustika, there was no occasion for the appellant to make any demand of bribe. In this context, the decision of Ganga Kumar Shrivastava vs. State of Bihar, (2005)6 SCC 211 , para 22, may be taken note of. In that case, there was a demand of money in respect to the restoration of electricity connection which according to the appellant of that case was already restored on 22-6-1985 and if the restoration of electric supply was already made on 22-6-1985 there was no occasion for the accused to make demand and to accept the bribe, thereafter either on 25-6-1985 or 28-6-1985. If the decision of Ganga Kumar Srivastava is tested on anvil of the present factual scenario it would reveal that much prior to 17-2-1999 the name of the appellant was already mutated and not only this his name was also endorsed in the Rin Pustika and therefore there was not occasion for the appellant to make any demand of bribe. 21. For the reason stated hereinabove, I am unable to uphold the conviction of the appellant. 22. Resultantly, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by the Special Judge convicting the appellant for the charges framed against him 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.