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Madhya Pradesh High Court · body

2010 DIGILAW 202 (MP)

Bupendra Kumar v. State of M. P.

2010-02-17

S.K.SETH, S.L.KOCHAR

body2010
JUDGMENT Kochar, J. 1. By this appeal under section 374 of the Code of Criminal Procedure, the appellant seeks to challenge his conviction under section 161 of the Indian Penal Code and consequent sentence of rigorous imprisonment for six months with fine of Rs. 1,000/- and in default of payment of fine to suffer additional S.I. for three months vide judgment dated 15.11.1995 passed in Special Case No. 34/1991 by the learned Additional Sessions and Special Judge, (West Nimar) Mandleshwar. 2. According to the prosecution case, the appellant was posted Assistant Surgeon in village Segaon Primary Health Centre on 18.03.87. The complainant Uma Shankar was serving as Dresser at the same centre. Uma Shankar applied for advance of GPF money for which the appellant demanded bribe. Uma Shankar applied for advance of Rs. 5,000/- on which 25 percent i.e. an amount of Rs. 1,250/- was demanded by the appellant, but ultimately he agreed for Rs. 500 rupees. From the G.P.F. account of Uma Shankar, Rs. 4,000/- were sanctioned on which the appellant demanded 400 rupees. Uma Shankar was not willing to give Rs. 400/- therefore, he made a complaint before the Sub Divisional Magistrate, Khargone supported by an affidavit. The complainant was able to manage only Rs. 350/- for the purpose of trap. Investigating Officer prepared a memorandum in presence of witnesses and written the numbers of the currency notes and arranged a trap of the appellant. SDO (P), SDM, complainant and other witnesses as per fixed schedule, reached to the appellant for giving bribe and trapping him red -handed. It is said that the appellant received Rs. 350/- from the complainant and kept the same in the table drawer. After acceptance of bribe money by the appellant, the complainant gave signal to the trap - party who reached on the spot and at the instance of the appellant recovered Rs. 350/- from the drawer of the table. The number of currency notes were tallied with the numbers mentioned in the initial memorandum and thereafter, the same were seized. Appellant was arrested and released on bail by the Investigating Officer. On completion of investigation, appellant was charge - sheeted for the offences under section 161 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act, 1988. 3. Appellant was arrested and released on bail by the Investigating Officer. On completion of investigation, appellant was charge - sheeted for the offences under section 161 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act, 1988. 3. Appellant refuted the charges and submitted that the complainant was a mischievous employee having inimical terms with him because of which, he lodged a false complaint and concocted a false case. Learned trial Court while acquitting the appellant from the charge under section 5(1)(d) of the Prevention of Corruption Act; 1947, convicted and sentenced him as indicated herein above. 4. We have heard learned counsel for the parties and also perused the record of the trial Court. 5. Learned counsel for the appellant has submitted that the conviction under section 161 of the Indian Penal Code is not sustainable, because the same was deleted from the Indian Penal Code by Amendment Act No. 49 of 1988. The Prevention of Corruption Act of 1988 (Act no. 48 of 1988) came into force with effect from 31.03.88, whereas the appellant has been convicted by the impugned judgment dated 15.11.95 which is illegal because on the date of judgment, section 161 was not in existence in the Indian Penal Code. 6. Learned Counsel has also submitted that the complainant has turned hostile to the prosecution, therefore, in absence of his evidence, his conviction is not sustainable. 7. On the other hand, learned counsel appearing for the State has submitted that the incident occurred on 18.03.87. At that time Prevention of Corruption Act 1988 was not in existence, therefore, the appellant, can be convicted under section 161 of the Indian Penal Code which was very well in statute. 8. On thorough examination, we do not find any merit in the arguments advanced by the learned counsel for the appellant that on the date of judgment (15.11.95) since section 161 of the Indian Penal Code was not in the statute, therefore, the appellant cannot be convicted. It is clear that as per provision under section 31 of the Prevention of Corruption Act, 1988 section 161 of the Indian Penal Code was deleted from the statute by Act. It is clear that as per provision under section 31 of the Prevention of Corruption Act, 1988 section 161 of the Indian Penal Code was deleted from the statute by Act. No. 49 of 1988 which came into force on 31.03.88 and in view of section 30 read with section 31 of the Act as well as Section 6 of the General Clauses Act, all proceedings pending for the offences under sections 161 to 165 -A (both inclusive) shall remain in force and conviction of the appellant by the impugned judgment dated 15.11.95 would not be affected by repeal of sections 161 to 165-A of the Indian Penal Code. By provisions of sections 30 and 31 of the Act, section 6 of the Prevention of Corruption Act, 1947 so far as offence under section 161 of the Indian Penal Code is concerned is not repeated and it remained protected. 9. Now we consider the next limb of the argument of the learned counsel for the appellant that because of hostility of the complainant in Court no case is made out for conviction of the appellant. The appellant has been convicted by the learned trial Court only under section 161 of the Indian Penal Code which reads as under: - 161. Public servant taking gratification other than legal remuneration in respect of an official act - Whenever, being or expecting to be a public servant, accepts., or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive of reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with [the Central or any State Government or Parliament or the Legislature of any State], [or with any local authority, corporation or Government company referred to in section 21], or with any public servant as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 10. 10. In view of the aforesaid provision, if a public servant accepts, or obtains, or agrees to accept, or attempts to obtain from any person illegal gratification then he is liable for conviction and punishment under section of the Indian Penal Code. PW-1 Uma Shankar has specifically stated that for forwarding the application, appellant demanded Rs. 400/- and the same was settled between them, but in cross-examination para 13, he has deposed that he had a talk with the appellant on 10.03.87, thereafter, his application was forwarded with recommendation and before 17.03.87, the application was accepted as well as payment voucher was also prepared. He has also stated in para 14 that the bill was submitted to the Treasury for withdrawal of the amount by the Accountant. His this statement is contradictory to the statement given in para 3 of his examination-in-chief that the appellant demanded bribe in advance for forwarding the application. 11. Learned trial Court in para 29 of the impugned judgment has given finding that recovery of bribe amount from the exclusive possession of the appellant is not proved beyond reasonable doubt and mere recovery of money from the table drawer of the appellant would not be sufficient for acceptance of bribe. In view of this finding and contradictory statement given by the complainant about demand of bribe for forwarding the application, in our view, even agreement for taking bribe amount between the appellant and the complainant is not established by the prosecution, therefore, the appellant deserves to be acquitted. 12. It is also pertinent to mention here that in the complaint Ex. P/1, the complainant has mentioned about demand of five hundred rupees by the appellant whereas in Court he changed his version and deposed that he demanded only four hundred rupees. On confrontation with the contents of Ex. P/l, he denied portion marked D to D wherein it is mentioned that he submitted five hundred rupees before the Collector. He has also admitted that the contents at portion marked D to D were false. In examination-in-chief he has deposed about giving of 350 rupees to the appellant. Because of several contradictions in this court - statement with his complaint Ex. P/l he was declared hostile by the prosecution. 13. For foregoing discussion, in our considered view, the prosecution has failed to establish that the appellant agreed to accept the bribe of Rs. 400/-. In examination-in-chief he has deposed about giving of 350 rupees to the appellant. Because of several contradictions in this court - statement with his complaint Ex. P/l he was declared hostile by the prosecution. 13. For foregoing discussion, in our considered view, the prosecution has failed to establish that the appellant agreed to accept the bribe of Rs. 400/-. This appeal, therefore, deserves to be and is hereby allowed. Conviction and sentence of the appellant as passed by the learned trial Court, are hereby set aside. The appellant is on bail. His bail and surety bonds shall stand discharged. Let a copy of this judgment be sent to the trial Court along with its record for compliance immediately.