Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1267 (MP)

Bapulal S/O Kishoreji Fagna v. State Of M. P.

2009-11-12

S.K.SETH, S.L.KOCHAR

body2009
JUDGMENT : S.L. KOCHAR, J. : By this appeal, the appellant seeks to challenge his conviction under section 161 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act (hereinafter referred to as the Act) and consequent sentences of R.I. for two years and fine of Rs. 1,000/- and R.I. for two years and fine of Rs. 1,000/- respectively and in default of payment of fine, to suffer additional R.I. for three months on each count vide judgment dated 3-7-1996 passed in Special Criminal Case No. 6/87 No. by the learned Additional Sessions Judge, Garoth. 2. The prosecution case in narrow compass was that the complainant Nanda (PW-6) resident of village Khajuri, Tehsil Manasa, submitted an application in Irrigation Department for grant of lease/Patta of his own submerged land in Gandhi Sagar Dam for agricultural purposes, which was rejected by the irrigation department, but the appellant assured complainant that if he pays him Rs. 1,400/- then he would get permission for the land on Patta. The matter was settled in Rs. 1,100/-. Complainant was not inclined to give this amount to the appellant, therefore, he submitted a complaint to the SDO, Manasa PW-8 Shri B. S. Rawal. Shri Rawal (PW-8) called SDO(P), Manasa and issued instructions for proceedings. SDO(P) directed the complainant Nanda to bring Rs. 1,100/-. Complainant reached to the Sub Divisional Officer (Revenue) as well as the SDO(P), Manasa and gave Rs. 1,100/-. Both the officials made their signatures on those 1,100/- rupees currency notes. They also instructed the complainant for giving this very money to the appellant and after payment to raise signal to this effect. On 22-8-1983, the complainant Nanda approached the appellant and both went to Shanti Niketan Hotel situated in the area of Gandhi Sagar Dam. Complainant made the payment of Rs. 1,100/- to the appellant and thereafter gave signal to this effect, which attracted the Sub Divisional Officer as well as the SDO(P). Both these officials along with the witnesses reached inside the hotel and seized the amount from the appellant. The proceedings of seizure were drawn and appellant was arrested. Police registered the criminal case for commission of offence punishable under section 161 of the Indian Penal Code and 5(2) of the Act. On completion of investigation, charge-sheet was filed against the appellant. 3. Appellant denied the charges. He did not examine any witness in defence. The proceedings of seizure were drawn and appellant was arrested. Police registered the criminal case for commission of offence punishable under section 161 of the Indian Penal Code and 5(2) of the Act. On completion of investigation, charge-sheet was filed against the appellant. 3. Appellant denied the charges. He did not examine any witness in defence. His contention was that the President Ramgopal and Member Bal Kavi Bairagi of Twenty Point Programme Committee had pressurized him for receiving agreement of so many persons, which was denied by him because of which he was falsely implicated. Now the complainant at their instance and witnesses were speaking against him because of political pressure. On conclusion of trial, learned trial Court finding the prosecution case proved, convicted and sentenced the appellant as indicated herein-above. 4. We have heard learned counsel for the parties and also perused the entire record carefully. 5. Learned counsel for the appellant has submitted that the prosecution has failed to establish motive on the part of appellant and there are contradictory statements given by the witnesses about seizure of currency notes. It is also submitted that before arranging trap, date, place and time were not fixed by the members of the trap-party and independent witness PW-5 Prakash has not supported the prosecution case, therefore, conviction of the appellant is not sustainable. 6. On the other hand, learned counsel for the State has supported the impugned judgment and finding arrived at by the learned trial Court and also argued that the appellant was working in the Irrigation Department and made the complainant to believe for getting the work done, therefore, sufficient motive has been proved by the prosecution. It is also submitted by him that money was seized from the possession of appellant and complainant has fully supported the prosecution case regarding demand and payment of money to the appellant. Learned counsel has also argued that merely because independent witness has not supported the prosecution case, the entire prosecution case cannot be thrown over the board and there is no reason for not placing reliance on the testimony of member of trap-party, PW-7 Chhatarpal Singh, PW-8 B. S. Rawal, SDM and PW-9 R. K. Gupta, SDO(P) who have fully supported the version of the complainant (PW-6) Nandlal. 7. PW-1 Bherulal has proved the seizure of record of Irrigation Department, Gandhi Sagar, Dam vide seizure memo Ex.P/1 to P/4. 7. PW-1 Bherulal has proved the seizure of record of Irrigation Department, Gandhi Sagar, Dam vide seizure memo Ex.P/1 to P/4. These documents were seized from Divisional Accountant Shri Sawant and Shri Sawant in cross-examination has deposed that every-year submerged land of Gandhi Sagar Dam were given on lease to the agriculturists and this work was being looked after by the Revenue Section of the Irrigation Department. At that time appellant was working under SDO (First) Bherulal has denied defence suggestion specifically that the appellant was working at that time in Audit Department. It is clear that the appellant was working in Irrigation Department and he has not filed any document or examined any witness of Department to show that he was working in Audit Department. Complainant PW-6 Nandlal has specifically stated that when he reached in the office of Irrigation Department he came to know that his application was dismissed and for correction of his application and grant of Patta he had a talk with the appellant and appellant demanded 1,400/- rupees for correction of applications which were already rejected. Further say of the complainant is that he made a complaint and he was called by the Sub Divisional Officer and he was given 1,100/- rupees after signing on nine notes of Rs. 100/- denomination and four notes of Rs.50/- denomination. In cross-examination, he has deposed that he came back with Rs. 1,100/- from his house and the same were again given to him by the police. He denied the defence suggestion that the notes were taken out from, his pocket by the police. He has proved the complaint Ex.P/9 and seizure of the amount from the possession of appellant Ex.P/10. His signatures are available at portion marked A to A on this document. He has also proved his application for a grant of Patta Ex.P/3. He has also denied the defence suggestion that he had given money to Qureshi Babu in the hotel. It is clear from his cross-examination that the appellant has admitted payment of money by complainant to Qureshi Babu. If this was correct, then there was no reason for the complainant to name him. Right from the beginning he complained against the appellant and in para 2 of his statement, he specifically stated that he met the appellant in the hotel and gave the amount of Rs. If this was correct, then there was no reason for the complainant to name him. Right from the beginning he complained against the appellant and in para 2 of his statement, he specifically stated that he met the appellant in the hotel and gave the amount of Rs. 1,100/- to him as his fee and also asked him for getting his work done. In cross-examination para 5, he has deposed that the appellant met him in Chambal Office and they came to the hotel where he put the rupees on the table thereafter, came out of the hotel and gave signal to the trap-party. On the said table appellant alone was present. On the basis of the statement of complainant PW-6 Nanda, demand and payment of money to appellant as illegal gratification is sufficiently proved. It is also clear that the appellant was serving in Irrigation Department which was directly or indirectly related with the work for which assurance was given to the complainant. Supreme Court in the case of R.S. Nayak vs. R. Antule and another, AIR 1986 SC 2045 has pointed out following ingredients to prove the case of taking of illegal gratification :- (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 be any official act or for showing or forbearing to show, in the exercise of his official function favour or disfavour to any person." The Supreme Court has further observed that. - "Ordinarily, when the first two ingredients are established by evidence, a presumption arises in respect of the third. - "Ordinarily, when the first two ingredients are established by evidence, a presumption arises in respect of the third. For the offence under section 165, Indian Penal Code the essential ingredients are :- (i) the accused was a public servant; (ii) he accepted or obtained or agreed to accept or obtain a valuable thing without consideration "or for an inadequate consideration knowing it to be inadequate; (iii) the person giving the thing must be a person concerned or interested in or related to the person concerned in any or business transacted or about to be transacted by the government servant or having himself or of any public servant to whom he is subordinate; and, (iv) the accused must have knowledge that the person giving the thing is so concerned or interested or related." 8. There is no dispute that the appellant was a public servant working in the same Department. Even if he was not directly authorized to do the concerned work, but he took the amount by inducing a belief to render assistance for getting the work of complainant done. We, therefore, hold that the appellant was having motive for accepting the bribe. 9. Though PW-2 Laxmi Narayan, owner of the hotel has turned hostile, but in clear words he has admitted arrival of the appellant along with complainant Nanda in his hotel on the date of incident. There was no reason for the complainant to go to the hotel along with the appellant. Thus, this circumstance is corroborating the version of the complainant. 10. PW-3 Radha Kishan has also turned hostile on the issue of payment of bribe amount to the appellant and its recovery, but he has stated that the appellant was preparing agreement for the submerged land. This shows that the villagers were knowing the appellant as a public servant who was related with grant of lease or Patta of submerged lands. He has also stated that Nanda had told him about payment of Rs. 1,100/- for agreement of submerged land to the appellant and Nanda took the appellant in the hotel. He has also stated about the proceedings drawn at Dak Bungalow by the Sub Divisional Officer and other officials about writing of number of currency notes, thereafter giving of said amount of Rs. 1,100/- to Nanda and Nanda was saying that he would give this amount to the appellant towards his fees. He has also stated about the proceedings drawn at Dak Bungalow by the Sub Divisional Officer and other officials about writing of number of currency notes, thereafter giving of said amount of Rs. 1,100/- to Nanda and Nanda was saying that he would give this amount to the appellant towards his fees. It is well settled legal position that part of evidence of hostile witness can be used if found relevant in the context of evidence of other witnesses. In the instant case, the statements of Nanda is corroborated by this witness in regard to preparation of document for submerged land, going to hotel with the complainant and preparation of Panchnama by writing numbers of currency notes which were given to the complainant. 11. PW-5 Prakash, though has turned hostile, has also supported part of the prosecution case viz. Preparation of document Ex.P/7, writing of numbers of currency notes putting initials or signing thereon by the Sub Divisional Officer Shri Rawal (PW-8) and the SDO (P) Shri Gupta (PW-9). He was the witness of giving and acceptance of bribe, thereafter, its seizure coupled with preparation of memorandum Ex.P/7, but regarding payment and seizure of money he has not supported the prosecution case. 12. PW-7 Sub Inspector Shri Chhatrapal Singh had accompanied the SDO Shri Rawal and SDO(P) Sahri Gupta. He has fully supported the prosecution case with regard to seizure of bribe amount of Rs. 1,100/- from the possession of appellant. His evidence has been criticized as an interested witness being police officer. It is trite law that evidence of police officials cannot be discarded only on this count. In the instant case, this witness was not the Investigating Officer nor he had arranged the trap. He had accompanied his superior officer and there is no reason for him to speak a lie against the appellant. 13. PW-8 Shri B. S. Rawal was the Sub Divisional Officer (SDM) on 22-8-1983. He deposed that the complainant had made a compliant to him about demand of bribe by appellant for preparation of agreement on which he called the SDO(P) and asked him to guide complainant Nanda. On next day, i.e. 22-8-1983, complainant came to him and gave complaint Ex.P/9. He proved preparation of memorandum of amount of Rs. 1,100/- and signing the currency notes. On next day, i.e. 22-8-1983, complainant came to him and gave complaint Ex.P/9. He proved preparation of memorandum of amount of Rs. 1,100/- and signing the currency notes. He has also deposed about going of the appellant with the complainant in the hotel and thereafter raising of signal by the complainant on the basis of which trap-party went inside the hotel and caught the appellant. He proved seizure of currency notes (Articles from A/1 to 13) bearing his signatures which were given to the complainant with instruction to give the same to the appellant as bribe. He proved seizure of pant of appellant vide Ex.P/11. He identified the currency notes and the pant in Court marked as Article A/1 to /14). He has been cross-examined in detail, but there is absolutely nothing to doubt the testimony of this witness. He was not serving in the Police Department. He was discharging duel duty that is (1) as Executive Magistrate (SDM) and (2) Sub Divisional Officer (Revenue). He was a Gazetted Officer. There was no reason for him to speak lie against the appellant. He has denied the defence suggestion that he acted under the pressure of one Bal Kavi Bairagi. 14. PW-9 Shri R.K. Gupta SDO(P) has also narrated the entire story and supported the version of complainant. He proved the complaint Ex.P/9, preparation of Panchnama Ex.P/7 regarding number of currency notes and signing by him as well as the SDO PW-8 Shri Rawal. In Court he identified the currency notes Articles A/1 to A/13 and proved his signatures on them. Learned counsel for the appellant has submitted that according to this witness on search being made, the bribe money was found in right side pant pocket of the appellant whereas Shri Chhatra Pal Singh has deposed in para 2 that on asking by the SDO regarding search of the appellant, the appellant himself took out money from, his pant pocket and the same was seized. Thus, there is contradiction about seizure of money between the statements of these two witnesses, therefore, the recovery of bribe amount is doubtful. 15. We are not impressed by this argument. If the statement of Chhatra Pal Singh and SDO(P) Shri Gupta are read together, the only conclusion would be drawn that the bribe amount was found in possession of appellant and the same was seized and there is no contradiction on this issue. 15. We are not impressed by this argument. If the statement of Chhatra Pal Singh and SDO(P) Shri Gupta are read together, the only conclusion would be drawn that the bribe amount was found in possession of appellant and the same was seized and there is no contradiction on this issue. It is just an individual way of describing the search and seizure and nothing more. 16. We also do not find any substance in the arguments advanced by the learned counsel for the appellant that no date, place and time was fixed for trapping of the appellant. It is clear from the document proved by the witnesses and their statements that the trap was arranged on 22-8-1983 and after preparation of Panchnama Ex.P7 regarding description of bribe amount, they all proceeded Gandhi Sagar and Complainant Nanda went to Irrigation Office and from Irrigation Office along with the appellant went to hotel where bribe was given and the appellant was trapped. It is argued by the learned counsel that no proper sanction was taken for prosecution of the appellant, therefore, this trial and conviction are bad in law. Learned trial Court has discussed this issue in para 21 of the impugned judgment and held that the sanction Ex.P/16 was taken in consonance with section 6 of the Act under which the appellant was prosecuted. Learned trial Court has also specifically held that the appellant could be removed by competent officer viz. Superintending Engineer Middle Chambal Division Ujjain. Supreme Court in the judgment rendered in the case of Central Bureau of Investigation vs. V.K. Sehgal and another, (1999) 8 SCC 501 has held, while discussing the provisions of old Act of 1947 and new Act of 1988, section 6 of General Clauses Act as well as section 465 of the Code of Criminal Procedure, that :- "Thus, the legal position to be followed, while dealing with the appeal filed against the conviction and sentence of any offence mentioned in 1947 Act, is that no such conviction and sentence shall be altered or reserved merely on the ground of sanction, much less on the ground of want of competency of the authority who granted the sanction." In view of this legal position, conviction and sentence of the appellant cannot be reserved only on the ground of want of competency of the authority who accorded the sanction. 17. 17. It is clear from the record that at the initial stage, sanction to prosecution was not challenged and the appellant has failed to establish as to how his case was prejudiced. Therefore, on this count, his conviction and sentence cannot be challenged. (Also see : Supreme Court judgment passed in the case of State of M. P. vs. Jiyalal, JT 2009(12) SC 425. 18. It is also clear from the statements of prosecution witnesses that the appellant has failed to establish his defence of false implication because of political pressure by preponderance of probability. The appellant has not adduced any oral or documentary evidence in his defence in this behalf. 19. Learned counsel or the appellant has placed reliance on the Supreme Court judgment passed in the case of State of Punjab vs. Sohan Singh, (2009) 6 SCC 444 wherein the accused was acquitted by the High Court on the ground that the learned Special Judge failed to consider specific statement of PW-9 that the accused had no role to play in grant of electric connection out of turn, the statement of PW-1 regarding insertion of currency notes forcibly in the pocket of the accused, and non-examination of independent witnesses and prosecution failed to prove the demand. Such is not the situation in the instant case. This case, is therefore, of no avail to the appellant. 20. For the foregoing reasons we do not find any merit in this appeal. Learned counsel for the appellant relying on the Supreme Court judgment in the case of State of Maharashtra vs. Rashid B. Mukani, 2006(1) SC (Cri) 408, has submitted that lenient view may be taken in awarding jail sentence to the appellant. It is true that the appellant is facing this prosecution since last 26 years and now he is aged 56 years. He must have lost his job and he was a class-III employee, therefore, in view of Supreme Court judgment and the facts and circumstances of the case, we are of the considered view that the ends of justice would be served by reducing his jail sentence from two years to six months and fine of Rs. 1,000/- on each count though minimum jail sentence of one year is prescribed, but we are awarding less than this for the special reasons as mentioned hereinabove. 1,000/- on each count though minimum jail sentence of one year is prescribed, but we are awarding less than this for the special reasons as mentioned hereinabove. In default of payment of fine, he shall suffer additional R.I. For the one month on each count. The substantive jail sentences shall run concurrently. 21. In the result this appeal is dismissed with the observations indicated hereinabove. The appellant is on bail, he is directed to surrender to his bail bonds before the trial Court on 22-1-2010 and the learned trial Court is directed to send him to jail for serving out the remainder part of his sentence. On failure of the appellant to comply with this direction, trial Court shall take suitable action against the appellant and his surety in accordance with law under intimation to this Court. 22. Office is directed to send a copy of this judgment to the trial Court along with its record for compliance in due course.