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Madhya Pradesh High Court · body

2010 DIGILAW 1179 (MP)

Shravan v. State of M. P.

2010-11-25

I.S.SHRIVASTAVA, S.R.WAGHMARE

body2010
JUDGMENT Smt. S.R. Waghmare, J. -- 1. This appeal has been filed by appellant Shravan Kumar under S. 374 of the Criminal Procedure Code, challenging the judgment dated 27.1.2000 passed in Special Case No. 4/93 convicting the accused appellant for offence under S. 161 of the IPC and sentencing him to one year's RI with fine of Rs. 2,000/- and for offence under S. 5 (1) (d) read with S. 5 (2) of the Prevention of Corruption Act, 1947 and sentencing him to one year RI with fine of Rs. 2,000/-. Both the sentences were to run concurrently. 2. Brief facts of the prosecution case are that 10 years previously PW 1 Devlal had obtained a loan from the Regional Gramin Bank, Branch at Sandalpur for Rs. 3,000/- to run a small business of daily articles of Kirana, etc. (Manihari). The formalities were completed and accused appellant had demanded illegal gratification for release of said amount of loan and hence the complaint had been filed before the LokAyukta Police, Ujjain. The appellant was arrested on20.8.87 and released on grant of bail. The arrest memo is Ex. P 4 and 10 Jugal kishore Sharma PW 4 filed challan in the competent Court. 3. Considering the details and a brief history of the case we find that on 16.6.83 Shri R.S. Naigaonkar PW 5 was the staff officer of the Gramin Bank at Shajapur. Shri P.M. Joshi was the Chairman of the Bank in the year 1990 whereas Naigonkar was the secretary to Shri P.M. Joshi whereas accused Shravan Kumar was the Accountant and employee of the Bank and therefore a public servant. Inspector, Jagmohan Dhurve PW 7 had inspected the drawer of Shravan Kumar and recovered Rs. 2,050/- from his drawer as bank deposit and same amount was returned to the accused. Other concerned documents pertaining to transfer, appointment of the accused were recovered from the bank. The accused was identified by Shri R.N. Prasad PW 9. This witness has also been examined to prove that appellant Shravan Kumar Malviya was present at the bank on the date of incident i.e. 20.8.87. Rest of the proceedings have not been disputed. 4. The complainant has alleged that bank cashier had demanded Rs. 400/as illegal gratification for release of cheque for initial installment of the loan and complainant has alleged that Rs. 160/- were already paid to Shravan Kumar. Rest of the proceedings have not been disputed. 4. The complainant has alleged that bank cashier had demanded Rs. 400/as illegal gratification for release of cheque for initial installment of the loan and complainant has alleged that Rs. 160/- were already paid to Shravan Kumar. When complainant visited the bank on 18.8.87 for release of second installment, accused had demanded a sum of Rs. 240/-. Since the complainant did not want to pay any illegal gratification, he filed a complaint before the Lok Ayukta and upon receiving said complaint. offence was registered against appellant according to provision of law and a preparation was made to lay a trap. Preliminary Panchnama was duly prepared and complainant was duly instructed by the department and as already noted above, the trap was laid by the department and an amount of Rs. 240/- was recovered from the drawer of the accused Sharavan Kumar Malviya in the bank. During the investigation the statement of various witnesses were recorded and upon completion of investigation, the accused was charged for offence under Ss. 161 and 420 of IPC and under S. 5 (1) read with S. 5 (2) of the Prevention of Corruption Act, 1947. The accused abjured his guilt and stated that he was falsely implicated. The trial Court on considering the evidence, however convicted and sentenced the accused as herein mentioned above; hence the present appeal. 5. Counsel for appellant has attacked the impugned order mainly on the ground that demand of the illegal gratification as required under provisions of law has not been established. Complainant has turned hostile in the Court. Moreover, the demand was not specific and changed at times as alleged by the complainant first for Rs. 160/-. He stated that this amount was paid at home of the complainant then there is demand of Rs. 240/- and alleged sum has been received in the bank itself. The complainant is not steadfast in his testimony, the demand is not specific and the witness is shaky and trial Court has erred in relying on this witness for his conviction. Moreover, counsel urged that the trial Court had failed to consider the defence of the accused that the money was paid to him by the complainant to deliver to his superior the Bank Manager. The independent witness Dilmohan PW 2 has not supported prosecution case. The entire judgement in based on surmise and conjecture. Moreover, counsel urged that the trial Court had failed to consider the defence of the accused that the money was paid to him by the complainant to deliver to his superior the Bank Manager. The independent witness Dilmohan PW 2 has not supported prosecution case. The entire judgement in based on surmise and conjecture. No presumption under S.4 and 20 of PCA 1988 can be drawn and no reasonable cause has been shown by the prosecution as to why the accused could not have accepted the money on behalf of his superior. Counsel prayed that impugned judgment of conviction be set aside. 6. Counsel for respondent State on the other hand has stated that both demands of illegal gratification were made and under the circumstances it has been duly proved in accordance with law. And even if the complainant is considered to be partly hostile, he has admitted to having put his signatures on the complaint. Moreover, there are no malafides impugned in the present case to indicate as to why the complainant would implicate the present accused. Similarly a public officer in the course of his duty should not be unnecessarily doubted and no foundation has been made by the defence to establish any Malafides. Besides counsel urged that there is no lacuna in the procedure as prescribed under the law, on behalf of the officers of the department, and the recovery vide recovery memo Ex. P.3 clearly clinches the issues. Moreover he stated that the FSL report Ex. P.9 clearly proves the fact that the tainted currency notes were handled by accused Shravan Kumar and there is no need to doubt his complicity in the matter. So also counsel stated that the presumption under Ss. 4 and 20 of the PCA. Act were legal presumptions available to the respondent department and there was no illegality or infirmity in the impugned judgment of conviction. Counsel urged that it was based on valid and cogent reasons and there was proper marshalling of evidence. He prayed for dismissal of the appeal. To bolster his submission counsel for respondent department has relied on AIR 2004 SC 1242 -- T Shankar Prasad v. State of A.P whereby it is held that even if the demand is not proved but there is acceptance and recovery from the accused then the accused is liable for the offence u/ss. He prayed for dismissal of the appeal. To bolster his submission counsel for respondent department has relied on AIR 2004 SC 1242 -- T Shankar Prasad v. State of A.P whereby it is held that even if the demand is not proved but there is acceptance and recovery from the accused then the accused is liable for the offence u/ss. 5 (1) (b) and 5 (2) of the Prevention of Corruption Act. 7. We have scrutinized the records and the impugned judgment and bestowed our anxious consideration to the evidence on record and we find that the impugned judgment convicting the accused under Ss. 5 (1) (d) and S. 5 (2) of the IPC needs to be set aside for the reasons as detailed below. Primarily we find that the complaint Ex. P 1 by the complainant Devlal PW I is not proved for the simple fact that he has turned hostile in Court and specifically stated in para 2 of his deposition in Court that the illegal gratification of Rs.400/- had been demanded by the Branch Manager "Bade Babu" and not the present accused Shrivan Kumar who was known as "Chote Babu". Then it has come in his evidence that since he could not find the Branch Manager he had paid Rs. 160/- to the accused at his home in Sandalpur to be delivered to the "Bade Babu". Then we also find that the learned judge of the trial Court has also considered the fact in impugned para 22 of the judgment that the complaint Ex. P 1 was not scribed by PW 1 Devlal. According to the instructions of the complainant Devlal since he has categorically stated in Court that no demand for illegal gratification was made by the accused, then why has the complaint mentioned the name of the accused and not the name of the Bank Manager who made the demand according to the complaint Devlal PW 1. This fact certainly raises a doubt regarding the genesis of the prosecution case and we find substance in the submission of the counsel for the accused appellant that the entire prosecution case is manipulated and it has miserably failed to prove it case. We are reinforced in our findings with regard to the fact the complaint Ex. This fact certainly raises a doubt regarding the genesis of the prosecution case and we find substance in the submission of the counsel for the accused appellant that the entire prosecution case is manipulated and it has miserably failed to prove it case. We are reinforced in our findings with regard to the fact the complaint Ex. P.1 does not appear to be bonafide and is not proved in accordance with law, by the fact that the complainant himself has turned hostile in Court although he has admitted to having put his signatures on the same. The other important fact that can be marginalised or blinked away is that independent witness Dilmohan PW 2 the panch witness of the trap laid, the recovery, has turned hostile in Court and denied knowing the accused and that the currency notes were recovered before him. Then considering the next question whether the demand for illegal gratification by the accused has been established we find that the evidence of complainant Devlal PW 1 cannot be relied on for the reason that he turned hostile in Court, and this witness is not steadfast upon cross-examination. He has stated the accused "Chote Babu" never made any demand for money from him, it was the Bank Manager who had raised the demand and then in the complaint Ex. P1 it is stated that he did not wish to pay Rs. 400/- as demanded by the accused; he has changed his version in Court itself and hence the trial Court found that apparently this witness has been won over and we find thus that he cannot be relied on for convicting the accused of the aforesaid offence. This bring us to the last lap of the matter at hand regarding acceptance of the illegal gratification. We find the officers of the trap party Banshidhar Joshi PW 6, Inspector Jugal Kishore Sharma PW 4 and Dy. Collector Jagmohan Dhurve PW 7 have established the recovery of Rs. 240/- currency notes from a drawer in the bank. However, the learned trial Court has erred in holding that the alleged demand has been made and the acceptance was there even if the money has been accepted on behalf of the superior officer, (Bank Manager) of the accused. Collector Jagmohan Dhurve PW 7 have established the recovery of Rs. 240/- currency notes from a drawer in the bank. However, the learned trial Court has erred in holding that the alleged demand has been made and the acceptance was there even if the money has been accepted on behalf of the superior officer, (Bank Manager) of the accused. The conclusion is based on surmises and the Court has sought recourse to offence under S. 161 of the IPC whereas S. 161 of the IPC has been repealed by the Act of 1988 on the date of the impugned judgment. So, also the presumption under S. 20 of the New Act. 1988 (i.e. prevention of Corruption Act) are rebuttable and not available to the respondent department. Moreover, we find that it is not the case of the prosecution that the accused was a habitual go between in facilitating acceptance on behalf of his superior the Bank Manager, and moreover the tainted money is recovered from the drawer of a table in the bank and not from the person of the accused then benefit 0 doubt accrues in favour of the plaintiff in the suspicious circumstances of the prosecution already noted above. (Bimal Kumar Gupta v. Sp. Police Estahlishment. Lokayukta; 2001 (1) JLJ 267 relied on). Consequently, we find that the demand for illegal gratification has not been properly established, the complainant has himself turned hostile. the material witness of the trap party has not supported the prosecution, the acceptance has also not been proved satisfactorily; the conviction of the accused seems to be on the basis of per functionary nature of materials and prevaricating type of evidence and the findings are based on conjectures and suffers from infirmities mentioned above. Then under the circumstances the conviction of the accused needs to be set aside. 8. Accordingly, the appeal is allowed. The impugned judgment convicting accused for offence under S. 161 of IPC and Ss. 5 (1) (d) and 5 (2) of the Prevention of Corruption Act, 1947 is hereby set aside. He is thus acquitted from the above mentioned offence. The accused appellant is on bail his bail bonds are hereby discharged.