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2010 DIGILAW 278 (CHH)

ASHA VERMA v. STATE OF M. P. (NOW C. G. )

2010-12-01

MANINDRA MOHAN SHRIVASTAVA

body2010
JUDGMENT 1. This appeal is directed against judgment of conviction and order of sentence dated 06-09-1996 passed by the 151 Additional Sessions Judge-Bilaspur in Special Case No.5/1992, by which, the Court below after holding the appellant guilty for commission of offence punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act") sentenced to undergo rigorous imprisonment for one year for each of the offences found proved, to run concurrently. 2. It is not in dispute that on the date of the incident, the deceased appellant-Madan Kishore was posted and working on the post of Clerk in Tehsil Office at Bilha. The story of the prosecution is that while the deceased-appellant- ' Madan Kishore was posted and working on the post of Clerk in the Tehsil Office at Bilha, a case involving complainant-Anand Ram was pending in the Court of Tehsildar and the complainant was interested in bringing the said litigation to an end. On 03-02-1990, when complainant-Anand Ram attended revenue proceedings in the Tehsil Office at Bilha, he requested the accused to 'manage the dismissal of the case, upon which, the accused demanded illegal gratification of Rs.200/- for getting the case dismissed. Further case of the prosecution is that finally, the deal was struck at Rs.100/- and on 20-02-1990 i.e. the next date of hearing, the complainant was asked to come with Rs. 100/-. As the complainant-Anand Ram was not inclined to satisfy the demand of bribe, he submitted, a written complaint EX.P-1 on 19-02-1990 in the Vigilance Office at Bilaspur before the D.S.P. (Vigilance). On such written complaint being lodged, C. B. Singh, P. W.I and another government witness were summoned and introduced to the complainant. After arriving at prima facie satisfaction with regard to genuineness of the complainant-Anand Ram, the concerned D.S.P. (Vigilance) proceeded to make arrangement for trap proceedings. A pre-trap demonstration was arranged in the Vigilance Office wherein solution of Sodium Carbonate was prepared in a glass. On dip of water paper, colour did not change. Thereafter, another peace of paper containing Phenolphthalein Powder was again dipped in the solution of Sodium Carbonate, which turned the solution pink in colour. A Panchnama of pre-trap proceedings were prepared vide Ex.P-2. On dip of water paper, colour did not change. Thereafter, another peace of paper containing Phenolphthalein Powder was again dipped in the solution of Sodium Carbonate, which turned the solution pink in colour. A Panchnama of pre-trap proceedings were prepared vide Ex.P-2. After giving such demonstration, the complainant was asked to present currency note of Rs.100/- which was placed, on which, Phenolphthalein Powder was smeared and kept in the pocket of the complainant. The complainant was also informed and guided as to how the trap would be arranged and the role which he is required to play in the trap proceedings. The number noted in the currency note of Rs.100/- was also recorded in the pre-trap proceedings, vide Panchnama EX.P-2. 3. After preparing panchnama of arranging trap proceedings in Ex.P2, the trap team proceeded towards Tehsil Office at Bilha where the complainant was asked to come with bribe of Rs.100/- by the accused. The vehicle in which. members of the trap team proceeded along with the complainant, stopped near Bilha Railway Station and the complainant was asked to proceed to the spot i.e. Tehsil Office at Bilha for giving bribe and the members of the trap team gathered around the Tehsil Office at different places in order to witness the incident. The accused and the complainant were found in a hotel and the complainant-Anand Ram gave currency note of Rs.100/- to the accused. Thereafter, receiving trap signal, members of the trap team immediately arrived at the spot and caught hold of the accused and currency note of Rs.100/- was recovered and was seized vide EX.P-3 along with some more currency notes and the clothes of the accused appellant. Vide Ex.P-4, records of proceedings of case pending before the Executive Magistrate, Bilha were seized from the possession of the accused appellant and were given on supurdnama of Tehsildar, Bilha vide Ex.P-4(B) for being produced during the course of trial as and when required. Vide Ex.P-5, other records relating to disputes where complainant was a party and were pending in the Tehsil Office at Bilha relating to mutation proceedings, were also seized. Vide Ex.P-6, some other relevant documents including notes and order passed in Civil proceedings were seized. Panchnama of the trap proceedings carried out by the trap team was prepared vide Ex.P7. 4. Hands of the accused were washed in the Sodium Carbonate solution. which turned pink. Vide Ex.P-6, some other relevant documents including notes and order passed in Civil proceedings were seized. Panchnama of the trap proceedings carried out by the trap team was prepared vide Ex.P7. 4. Hands of the accused were washed in the Sodium Carbonate solution. which turned pink. Upon pocket part of the shirt of the accused being washed, the same also turned in light pink colour. Thereafter, solution of hand wash of the accused was kept in a bottle and sealed and clothes were also sealed. The samples were thereafter sent for examination to the Forensic Science Laboratory. After completing the trap proceedings and the investigation and after obtaining sanction for prosecution vide Ex.P-8 against the accused-appellant, charge sheet was filed. The report Ex.P-15 received from the office of Director, Forensic Science Laboratory, Sagar, reported positive test of the bottles containing hand wash and cloth wash of the accused, contained in the sealed bottles sent to Forensic Science Laboratory. 5. The learned trial Court framed charges for the alleged commission of offence punishable under Section 7, 13(1 )(d) read with Section 13(2) of the Act. The accused appellant abjured his guilt. In order to prove its case, the prosecution examined as many as 9 witnesses. In his examination under Section 313 of the Cr.P.C., upon being confronted with the incriminating evidence appearing against the appellant, the appellant denied having demanded or accepted bribe and said that he has been falsely implicated. 6. By the impugned judgment of conviction and order of sentence, the learned appellate Court relying upon the case of the prosecution and holding the same to be proved from the evidence of C. B. Singh, P.W.I, Durga Prasad Parashar, P.W.2 , held the appellant guilty for the alleged commission of offence punishable under Section 7,13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo R.I. for one year for each of the offences and the sentence were ordered to run concurrently. 7. In order to hold the appellant guilty for commission of offence, the learned trial Court has mainly relied upon the evidence of C. B. Singh, P.W.1, Ram Bahadur Singh, P.W.4, R. J. Toppo, P.W.9 and the complainant-Anand Ram, P.W.6 and also Forensic Science Laboratory report showing presence of phenolphthalein powder in the hand wash and cloth wash of the accused appellant as corroborative evidence. 8. 8. Learned counsel for the appellant vehemently argued that the prosecution has failed to prove by clinching evidence that any demand was made by the appellant. He submitted that the prosecution has failed to prove beyond reasonable doubt that any bribe was accepted by the appellant, and therefore, presence of phenolphthalein power and mere recovery of currency note from the possession of the appellant. cannot be made basis for his conviction. It has also been argued that none of the prosecution witnesses, particularly the independent witnesses, who were brought by the trap team for the specific purpose to watch the incident of bribe giving and also as to what transpired between the complainant and the accused appellant, have deposed that any demand was made by the appellant or the bribe offer was accepted by him. It was next contended by learned counsel for the appellant that there was no motive for the appellant to demand bribe as he was not the Clerk-In charge of the proceedings and it was not within his authority to pass any order or to get the case dismissed. 9. Leaned counsel for the appellant next submitted that there was another Clerk, who was Incharge and looking after the concerned proceedings, which the complainant was interested in getting dismissed. It was only on 1601 - 1990 that in the absence of the concerned Clerk, the appellant looked after his work. Further contention of learned counsel for the appellant is that the dates on which, demand is said to have been made, the complainant was not even present in the office as evident from the order sheets of the proceedings, and therefore, the complainant's version that demand was made by the appellant is wholly concocted and afterthought. Further submission of learned counsel for the appellant is that the entire case of the prosecution suffers from serious and inherent contradiction in so far as the demand, acceptance and recovery is concerned. He submits that the prosecution witnesses including independent witnesses brought along with the trap team have not supported the case of the prosecution on material aspects and their statement is not only contradictory but also contradicts the story of the trap team, as deposed by other witnesses. Learned counsel for the appellant further argues that different places of giving bribe have been deposed which renders the entire case of the prosecution highly doubtful. 10. Learned counsel for the appellant further argues that different places of giving bribe have been deposed which renders the entire case of the prosecution highly doubtful. 10. Learned counsel for the appellant argued that in the absence of there being due corroboration on material aspects and without corroboration of testimony of the complainant which himself is accomplice and keenly interested to implicate the appellant, the conviction of the appellant is illegal and unsustainable in the eye of law. Learned counsel for the appellant lastly submitted that no presumption that the amount was accepted as bribe could be drawn by. taking recourse to the provisions contained in Section 20 of the Prevention of Corruption Act, 1988, in the absence of there being proof of demand and acceptance by the appellant. In support of his submissions, learned counsel for the appellant has relied upon the judgment in the case of Dr. A. Y. Prasad Vs. State, Sunil Kumar Sharma Vs. State (CBI), Arjun Bajirao Kale Vs.• State of Maharashtra, K. Giri Vs. State of A.P, State of Lokayuktha Police, Mandya Vs. K. M Gangadhar"', State of Karnataka Vs. A. V. Sathish, Hari Dev Sharma Vs. State (Delhi Administration)', Ganapathi Sanya Naik Vs. State of Karnataka, State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, A. Subair Vs. State of Kerala, C. M Girish Babu Vs. CBI, Cochin, High Court of Kerala, V. Venkata Subbarao Vs. State represented by Inspector of Police, A.P. and State Inspector of Police, Visakhapatnam Vs. Surya Sankaram Karri. 11. On the other hand, learned State counsel supported the judgment of conviction and order of sentence by submitting that the prosecution has led clinching and reliable evidence in order to prove demand, acceptance and recovery. Learned State counsel further submitted that from the trustworthy evidence of Anand Ram, P.W.6 i.e. the complainant, it has been proved that the appellant demanded illegal gratification for getting the case dismissed which led to filing of complaint by the Anand Ram, P.W.6 in the Vigilance Office at Bilaspur, which has been duly proved. It has also been argued that the proceedings of trap have been duly proved not only by the complainant, P. W.6 but also by other independent witnesses, P.W.1, C. B. Singh, Ram Bahadur Singh, P.W.4 as also from the evidence of R.J. Toppo, P.W.9. It has also been argued that the proceedings of trap have been duly proved not only by the complainant, P. W.6 but also by other independent witnesses, P.W.1, C. B. Singh, Ram Bahadur Singh, P.W.4 as also from the evidence of R.J. Toppo, P.W.9. Learned counsel for the State further argued that the case of the prosecution is fully corroborated from the Phenolphthalein Powder test, in respect of hand wash and cloth wash of the accused appellant which have been found positive. Learned counsel for the State submits that as the demand has been proved and acceptance and recovery of currency notes from the possession of the appellant, is also proved, conviction of the appellant could not be assailed on certain minor and trivial contradictions and omissions, as on all material aspects with regard to demand, acceptance and recovery, the evidence of the prosecution has remained unshaken and trustworthy. Learned State counsel places reliance upon the judgment of the Supreme Court in the case of State Rep. by C.B.I., Hyderabad versus G. Prem Ral. 12. Durga Prasad Parashar, P.W.2 has proved grant of sanction for prosecution of the appellant accused vide order dated 23-01-1992, EX.P-8 by S. C. Gupta, the Additional Secretary, Law and Legislative Affairs, Govt. of M.P., Bhopal. The accused appellant has also not disputed grant of sanction for his prosecution. 13. In order to prove its case of demand of illegal gratification, acceptance and recovery of currency note, the prosecution has mainly relied upon the testimony of C. B. Singh, P.W.I, Ram Bahadur Singh, P.WA, Anand Ram, P.W.6 and R. J. Toppo, P.W.9. The learned Special Court has also held the demand, acceptance and recovery proved mainly relying upon the testimony of aforesaid prosecution witnesses. Out of these, Anand Ram, P. W.6 is the complainant and the star witness of the prosecution to prove demand of illegal gratification by the appellant. It would therefore be necessary to scrutinize the evidence of Anand Ram, P. W.6 as also other witnesses to find out whether the prosecution has succeeded in proving demand of illegal gratification beyond reasonable doubt in order to bring home the charges and prove the guilt of the appellant. 14. In Pannalal Damodar Rathi Vs. State of Maharashtra, the Supreme Court observed as under: "There could be no doubt that the evidence of the complainant should be corroborated in material particulars. 14. In Pannalal Damodar Rathi Vs. State of Maharashtra, the Supreme Court observed as under: "There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165A of the IPC making the person who offers bribe guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon." The status of person offering bribe and the caution required while assessing his evidence implicating a government servant was examined by the Supreme Court in a subsequent decision of M O. Shamsuddin Vs. State of Kera/aI6, wherein it was held : "In tap cases, if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices il1 that sense but are only partisan or interested witnesses who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested which may vary from case to case and the corroboration in the case of such interested witnesses can be in a general way and not as one required in material particulars as in the case of an approver... In such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within the discretion of the Court depending upon the facts and circumstances of each case. However, as a rule of prudence, the Court has to scrutinise the evidence of such interest witnesses carefully." 15. The settled legal position which emerges is that the complainant's evidence has to be scrutinized carefully and if his evidence is found trustworthy, reliable and also finds corroboration on material aspects, the same can be acted upon. 16. The complainant Anand Ram, P.W.6 in his cross-examination in chief, has deposed that a case relating to his agricultural land was pending in the Court of Tahsildar, Bilha and in respect of the same land, civil case was pending at Bilaspur and he had submitted papers of the civil cases before the Tehsildar, Bilha and requested for closing the case. The complainant Anand Ram, P.W.6 in his cross-examination in chief, has deposed that a case relating to his agricultural land was pending in the Court of Tahsildar, Bilha and in respect of the same land, civil case was pending at Bilaspur and he had submitted papers of the civil cases before the Tehsildar, Bilha and requested for closing the case. He has also deposed that Tehsildar, Bilha was not present and the appellant used to give him dates. He has further deposed that when he asked the appellant to give him date as Tehsildar is not there, the appellant said that he is litigating and his work will not be done free of cost. At this, the appellant said that if he gives Rs.200/-, he would get the case dismissed. When he expressed his inability to give Rs.200/- but offered only Rs.100/-, the appellant agreed and said that he would get the case dismissed. Upon being asked, when he should give the money, he was told that whenever he arranges money, he may bring the same. Anand Ram, the complainant also deposed that after return to his village, he told about the said incident to Sarpanch, Tulsi Ram, and Tulsi Ram advised him to lodge a report whereafter he and Tulsi Ram came to Bilaspur and went to the Vigilance Office, Bilaspur and from there he went to the office of D.S.P.(Vigilance) and made a oral complaint. Upon being asked by the D.S.P. (Vigilance) to make the complaint in writing, the complainant requested Tulsi Ram to prepare the application and Tulsi Ram prepared application, on which, he put his signature and submitted before the D.S.P. (Vigilance). The aforesaid application has been proved and exhibited as Ex.P-1, on which, Anand Ram has admitted his signatures. The aforesaid document EX.P-I which complainant Anand Ram States to have submitted on 19-02-1990 before the D.S.P. (Vigilance) reads that in respect of the land in dispute R. K. Gupta S/o Gajadhar had instituted civil proceedings and has also instituted mutation proceedings in the Court of Tahsildar, Bilha. The document further reads that he had submitted the order of civil case in the Court of Tahsildar yet he has been asked to appear on the date of hearing. The document further reads that he had submitted the order of civil case in the Court of Tahsildar yet he has been asked to appear on the date of hearing. The said document importantly further reads that on 03-02-1990 which was the date of hearing, when the complainant went there, the appellant, who is clerk in the office of Tahsildar, stated that in order to get dismissed or case withheld, he will have to spend Rs.200/-, upon which, he has stated he is a poor man and he can give only Rs.100/-, on which, the appellant agreed and stated that the next date of hearing is on 20-02-1990, on which date, he may come with the money and his work would be done. 17. In his examination-in-chief, the complainant-Anand Ram states that the appellant demanded illegal gratification of Rs.200/- for getting the case dismissed, but in the application Ex.P-1, it is stated that the money was demanded for getting the case withheld. The complainant has not stated as to on which date, he met the accused appellant. Though, in his complaint Ex.P-1, it is written that he went to the office of Tehsildar, Bilha on 03-02-1990, in his examination-in-chief, he has nowhere stated. The complaint EX.P-l cannot be treated as substantive evidence and is only a former statement of the complainant which can only be used to corroborate the evidence of the complainant given in the Court or to contradict his evidence as held in the case of Suresh Kumar Shrivastava Vs. State of MP. In his cross-examination, the complainant Anand Ram has deposed that two cases in respect of the same land were going on in the Court of Tehsildar and he did not ask to get all the cases closed and when he asked the appellant to give early dates of hearing, the accused appellant said that it would not be done free of cost. He has further stated that the conversation with the accused was concerning mutation proceedings. He emphatically deposed that 03-02-1990 was the date of hearing in the mutation case. The concerned records were shown to the complainant on which, date of hearing is shown 16-01-1990. Ex.P-9 is the order sheets of the mutation proceedings and the date of hearing is 16-01-1990 whereas next date given is 20-02-1990. He emphatically deposed that 03-02-1990 was the date of hearing in the mutation case. The concerned records were shown to the complainant on which, date of hearing is shown 16-01-1990. Ex.P-9 is the order sheets of the mutation proceedings and the date of hearing is 16-01-1990 whereas next date given is 20-02-1990. In the order sheet dated 16-01-1990, it has been recorded that the presiding officer is busy in other government work and therefore the case is adjourned. Though, the applicant-Balram Prasad is recorded to be present and his signatures have also been appended on the margin of the order sheets, it neither records the presence of the complainant-Anand Ram nor his signatures are there to show that he was present on that date. Thus, the aforesaid contradiction in the testimony of Anand Ram, P. W.6, which is very material and not any minor contradiction, renders doubtful the story of demand made by the appellant. It has to be noted that in the complaint Ex.P.1, the date on which the complaint made against the appellant, is stated to be 03-02-1990 and was asked to come on 20-02-1990. In the cross-examination, the complainant says that the demand related to mutation proceedings. No date of hearing was fixed in the mutation case on 03-02-1990, but it was on 160(-1990. On that date also, the order sheets do not record the presence of the complainant. Secondly, while in the examination in chief, the complainant states that the appellant demanded money for getting the case dismissed, in the complaint, Ex.P-1, it is written that the complainant will have to pay Rs. 200/- for getting the case withheld/stayed. Thirdly, while in the examination-in-chief, he states that the accused appellant asked him to come with the money as and when arranged, in the complaint Ex.P-1, he has asked to come on 2002-1990. The prosecution has also brought in evidence the order sheets of the other proceedings i.e. proceedings under Section 145/146 of the Cr.P.C. That case was listed before the Tahsildar on 03-02-1990 and the next date given in the case was 03-03-1990 as Presiding Officer was not present. In that case also, presence of the applicant-Balram Prasad has. been recorded and he has Programme (Session 2004-09)" and fees was paid as per directions of the appellant's institution. In that case also, presence of the applicant-Balram Prasad has. been recorded and he has Programme (Session 2004-09)" and fees was paid as per directions of the appellant's institution. As the course was to run till the year 2009, therefore the complainant was having cause of action for tiling complaint against the appellant anytime before 2009. 8. We have considered aforesaid submissions by both parties. We have also gone through the record of the District Forum. We find that apart from present respondent No.1 / complainant many other students had also filed complaint before the District Forum against the same appellant University. Copies of judgments passed in their cases by this Commission were also filed before the District Forum, which are available on record of the District Forum. It was clearly held by this Commission in those cases, which is also squarely applicable in the facts of the present case, that "there is no material to show that examination of remaining part of the course were conducted by lawfully established University or that the institution in which appellant were studying was established following the norms set by All India Council of Technical Education and was established wit~1 its approval and sanction. In absence of these facts, the establishment of the institution itself cannot be said to be legal and so the action of giving admission and then continuously pursuing the students to continue their study and to give examination arc all negligence on the part of respondent Nos. 1&2, for which they are liable to pay compensation." Thus it is clear that the appellant University was not at all duly recognized by AICTE and was not a lawfully established University, so it was not entitled to give admission to any student in a technical course like MBA and in view of this fact if admission was given to respondent no.1 and fee was colleted and the admission was for a session of five years then the respondent No.1/complainant was entitled to file a complaint against the appellant at anytime during that period of five years or even two years after the lapse of five years. So, we arc of the view that the complaint 1iled by the respondent No.1 was not time barred and can be entertained by the District Forum and the District Forum has not committed any mistake in entertaining the complaint. 9. So, we arc of the view that the complaint 1iled by the respondent No.1 was not time barred and can be entertained by the District Forum and the District Forum has not committed any mistake in entertaining the complaint. 9. It is apparent from the record that the name of the institution was later on changed after giving admission to respondent No.1 and ultimately office of the institution was also closed and on account of this conduct of the University, the respondent no.1 was required to lose his one valuable study year, though he had paid fee for whole academic session or at least of first semester. as the institution itself was not duly recognized, therefore it is not permissible for the appellant institution to take defence that fee of second semester was not deposited by the respondent no. I and so examination could not be conducted. because if the fee for subsequent semester was also deposited by the student. even then the institution was not in a position to conduct examination as it was not duly recognized nor was duly affiliated from a recognized University. 10. Thus we find that a case of deficiency in service is clearly made out. The complaint filed by the appellant was also not time barred. Challenge has also been made to the amount of compensation awarded against mental agony and for loss of a year. We find that Rs.25,000/- has been awarded and the one year which was loosen by respondent no. 1/complainant can never be returned back to him and therefore the period was priceless and the amount awarded by the District Forum does not appear disproportionate or excessive. 11. Therefore, on the basis of aforesaid discussion, we do not find any merits in the appeal. The same is dismissed. No order as to cost. Appeal Dismissed.