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Madhya Pradesh High Court · body

2010 DIGILAW 865 (MP)

Ghanshyam Narain Dubey v. State of M. P.

2010-08-26

S.L.KOCHAR, S.R.WAGHMARE

body2010
JUDGMENT S.L. Kochar, J. 1. The Appellant has preferred this appeal against the impugned judgment dated 9/12/2005 passed by learned Special Judge (under Prevention of Corruption Act) and 1st Additional Sessions judge, Dewas in Special Case No. 05/2002, thereby convicted the Appellant under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short "the Act"), and sentenced him to RI for one year with fine of Rs. 10,000/-. In default of payment of fine, he shall to suffer additional RI for three months. 2. Briefly stated, the prosecution case, as unfolded before the trial Court is that complainant Ramakant Potdar was Principal of Govt. Higher Secondary School, Nagda, Distt. Dewas, at that time he was suspended, on charge of not taking confidential material of examination on 09.03.2001. He received chargesheet on 17.04.2001. Shri Shivraj Tyagi was the Block Education Officer of Dewas and complainant was required to send his reply to the chargesheet to Block Education Officer Shri Tyagi. Complainant met Mr. Tyagi and Mr. Tyagi demanded Rs. 15,000/- for helping and to save him from demotion, ultimately it was settled for 8,000/- rupees. Complainant was not willing to give bribe to Mr. Tyagi, therefore, submitted a complaint on 20.04.2001 in Lokayukta office. In Lokayukta office after completion of required procedure for trap, Tyagi was trapped on 21.04.2001. 3. On inquiry Tyagi disclosed before the trap party that Appellant Distt. Education Officer Shri Ghanshyam Narayan Dubey had demanded this amount and he accepted the bribe for Appellant Shri Dubey. On the basis of this disclosure by Shri Tyagi on the spot, complainant submitted one more application, that was against Shri Dubey to Lokayukta police and complainant brought Rs. 8,000/- from his house. Thereafter, procedure for conducting trap was completed by noting down number of notes, and phenolphthalein powder could not be used because it was not available at that moment. The trap party reached at the house of Appellant Shri Dubey. Offices of Lokayukta provided a tape to complainant with instruction that at the time of payment of bribe he should use this tape for recording conversation between him and Shri Dubey. Complainant went inside the house of Shri Dubey and paid Rs. 8,000/- to him. Shri Dubey after taking amount, kept the same in right pocket of the trouser and assured the complainant for his continue posting at Nagda. Complainant went inside the house of Shri Dubey and paid Rs. 8,000/- to him. Shri Dubey after taking amount, kept the same in right pocket of the trouser and assured the complainant for his continue posting at Nagda. After passing bribe money to Appellant, complainant gave signal, on which members of the trap party reached inside the house and caught hold the hands of Shri Dubey. Officers of lokayukta disclosed their identity, thereafter conducted the proceeding of seizure of currency notes. On completion of all proceeding regarding recovery of notes, seizure of tape recorder with cassette and preparation of spot map, Appellant was arrested. The Investigating Officer recorded the statements of the relevant witnesses for proving the charge and after obtaining sanction to prosecute Shri Dubey, vide Ex.P/13, filed the charge sheet for commission of offences under Section 7 read with Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act (for short "the Act") 1988. 4. Appellant refuted the charges, therefore, put to trial. He has not examined any witness in his defence. Learned trial Court after examining the prosecution witnesses and hearing both the parties, convicted and sentenced the Appellants as mentioned hereinabove. 5. Learned Counsel for the Appellant has argued that for conviction of the Appellant under Section 13(1)(d) of the Act, the prosecution is mandatory required to establish demand of bribe amount which is not proved and learned trial Court has given specific finding in this regard in paragraph-16 of the impugned judgment. Learned Counsel has placed reliance on Supreme Court judgments passed in cases of A. Subair v. State of Kerala 2009 CRI.L.J. 3450, Subash Parbat Sonvane v. State of Gujarat 2002 CRI.L. J. 2787 and this High Court judgment passed in case of Sushil Kumar Jain v. State of Madhya Pradesh. 6. On the other hand Learned Counsel for the Respondent has pointed out through the statement of P.W. 2 Ramakant Potdar mentioned in paragraph-2 of examination-in-chief and paragraph-4 regarding demand of money by Appellant and submitted that finding given by the learned trial Court in paragraph-16 is contrary to the record. 7. Having heard Learned Counsel for the parties and on perusal of the entire record carefully, we find force in the argument of Learned Counsel for the Appellant. 7. Having heard Learned Counsel for the parties and on perusal of the entire record carefully, we find force in the argument of Learned Counsel for the Appellant. In the first complaint (Ex.D/1) submitted on 20.04.2001 before the lokayukta police, there is absolutely no mention in the name of the Appellant about demand of any kind of bribe for favouring the complainant. This complaint is only against Shivraj Tyagi, Block Education Officer. If really Shivraj Tyagi had demanded the money on behalf of Appellant for helping or favouring the complainant Ramakant, the complainant would have not failed to mention this fact in report Ex.D/1. Complainant was confronted with report Ex.D/1 and he accepted about non-mentioning of any kind of demand directly or indirectly by Appellant Dubey. This omission is not a simple omission but amount to contradiction and goes to the root of the case. 6. There is a glaring feature in the instant case that is for the first time complainant Ramakant and trap party came to know from Shivraj Tyagi, when he alleged to have been caught after taking bribe amount of Rs. 8,000/- from the complainant. Tyagi told to trap party that he had received this amount on behalf of the Appellant Ghanshyam Narayan Dubey. At that very moment incharge of trap Party got written complaint (Ex.P/1) on 21.04.2001 against the Appellant and directed the complainant to bring another Rs. 8,000/-. After bringing Rs. 8,000/- by the complainant the preliminary memorandum was prepared in which number of notes were mentioned, phenolphthalein powder was not used because it was not available at that moment on the spot. The statement of Ramakant was recorded in the case of Shivraj Tyagi in a separate and independent trial vide Special Criminal Case No. 2/2002 and in the said statement he has nowhere mentioned about any kind of demand by Appellant Shri Dubey and demand of Rs. 8000/- by Tyagi for the Appellant. He was confronted with the said statement and accepted non-mentioning of all these facts in the said statement, which is clear from his statement given in paragraph-18 herein this case. 8. Complainant was also confronted with (Ex.P/1) report lodged by him on 21.04.2001, wherein nothing is mentioned about meeting with Appellant Dubey on 20.04.2001 and in Ex.P/1 only he had mentioned about meeting with Shri Tyagi on 18th April, 2001. 8. Complainant was also confronted with (Ex.P/1) report lodged by him on 21.04.2001, wherein nothing is mentioned about meeting with Appellant Dubey on 20.04.2001 and in Ex.P/1 only he had mentioned about meeting with Shri Tyagi on 18th April, 2001. This material contradictions are sufficient to show that complainant and trap party came to know for the first time through Shivraj Tyagi on the basis of his statement that he received money for Appellant Shri Dubey. This statement of Shivraj Tyagi is not admissible in evidence being hit by law of hearsay evidence as per provision under Section 60 of the Evidence Act. Shivraj Tyagi has not been examined as a prosecution witness in this case. 9. In view of the above, finding given by the learned trial Court in paragraph-16 that prosecution has failed to establish demand by the Appellant, is just and proper. It is based on effective marshalling and appreciation of evidence. Supreme Court has considered in detail the requirement of Section 13(1)(d) of the Act in case of A. Subair v. State of Kerala (supra) and observed in paragraph-8, 9 & 10 as under: 8. Insofar as Section 13(1)(d) of the Act is concerned, its essential ingredients are: (I) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 9. In the case of C.K. Damodaran Nair v. Government of India, this Court had an occasion to consider the word "obtained" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 (now Section 13(1)(d) of Act, 1988), and it was held: 12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For s uch an offence prosecution has to prove that the accused "obtained" the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b)-and not under Section 5(i)(c), (d) or (e) of the Act. "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 Indian Penal Code, which, as noticed above, can be, established by proof of either "acceptance" or "obtainment". 10. The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d)cannot be held to be established. 10. In case of Subash Parbat Sonvane (supra) the three judges Bench of Supreme Court headed by the then Hon'ble Shri Justice M.B. Shah, the same legal position as mentioned hereinabove has been considered. In this judgment Section 20 of the Act has also been considered in paragraph-9 which is extracted herein below: 9. Same is the position of statutory presumption under Section 20 of the Act and is available for the offence punishable under Section 7 or Section 11 or Clause (a) or Clause (b) of Sub-section (1) of Section 13 and not for Clause (d) of Sub-section (1) of Section 13. 11. In view of the above factual and legal discussion, merely on the basis of recovery of amount the Appellant cannot be convicted. In the instant case, there is one more feature in favour of the Appellant i.e. at the time of recovery the Appellant has given immediate spontaneous statement that money was thrusted in his pocket and he had not accepted the same. 12. For reasons stated herein above, we allow this appeal. Conviction and sentence, as passed by the learned trial Court against the Appellant, are hereby set aside. Fine amount, if deposited by the Appellant, be refunded to him. Appellant is on bail. His bail bond and surety bond stand discharged.