Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 1316 (MP)

STATE OF M. P. v. ARUN KUMAR AWASTHY

2011-11-21

M.C.GARG, S.K.SETH

body2011
JUDGMENT : M. C. GARG, J. 1. This is an appeal filed by State of M.P. after having obtained leave to appeal under section 378 of Criminal Procedure Code, aggrieved of the judgment of the special judge delivered in Special Case No. 12/1987, dated 29th of November, 1996, against the order acquitting the respondent who was charged along with Nathmal Jain for having committed offence under section 161 of Penal Code and section 5(1)(d) read with section 5(2) of Prevention of Corruption Act, 1947, Nathmal Jain was discharged before the evidence started in this case; by the impugned judgment special judge acquitted the present respondent by holding, that the prosecution has not been able to prove its case beyond reasonable doubt. 2. It was trap case laid by officer of Lokayukt upon the respondent at the instance of the complainant (PW-1 Tukaram) who lodged the report Ex.P.3 alleging that while working as Junior Engineer of M. P.EB, the respondent posted at Khetiya, had demanded a sum of Rs. 1500/- from the complainant for reconnecting the electricity connection in the agricultural field/farm of the complainant which he had purchased from PW Pratap about 10 months ago. 3. As per complaint Ex.P.3, it was alleged that after purchase of the agricultural field/farm from PW Pratap the complainant approached the junior engineer/respondent for reconnecting electric supply which stood disconnected on account of non-payment of electricity dues, the junior engineer told him that after payment of the outstanding amount, the electric connection would be restored. The Complainant then deposited the dues payable yet he could not get the electricity restored. He again approached the respondent. This time the respondent/accused asked the complainant to pay a sum of Rs. 750/- if he wanted re-connection. Tukaram could not pay that amount but later he again approached the Engineer on Ist of February 1986 along with PW Pratap who was the earlier owner of the field. PW Pratap informed the respondent that he had sold the property to Tukaram and requested him to reconnect the electricity connection in as much as the dues towards electricity charges stood paid. At that time respondent/accused asked Tukaram to pay Rs. 1500/- for reconnection of electricity. Tukaram stated that Rs. 1500/- was on higher side and that he was earlier asked to pay Rs. 750/- only. On that Tukaram was told by the respondent/accused that you have to pay Rs. At that time respondent/accused asked Tukaram to pay Rs. 1500/- for reconnection of electricity. Tukaram stated that Rs. 1500/- was on higher side and that he was earlier asked to pay Rs. 750/- only. On that Tukaram was told by the respondent/accused that you have to pay Rs. 1700/- for reconnection and thereafter said that you may pay Rs. 1400/- only. 4. It is further case of the prosecution that Tukaram told about illegal demand by accused/respondent to his friend PW Ratilal. On the advise of Ratilal for getting the respondent/accused arrested red handed, he approached the office of Lokayukt along with the money on 4th of February, 1986 and made the report Ex.P.3 to the Superintendent of Police (Lokayukta). 5. At the instance of the Lokayukt on the next day at about 8.00 AM Tukaram along with Ratilal came to the office of Lokayukta and met Shri R.N. Upadhayay the Superintendent of Police who also summoned V. K .Dubey a gazetted officer to join the raid as a public witness. Other persons who were called were Inspector Babusigh, Constable Hariprasad Malviya, Baburao Gorghode, Ramchandra Solanki and Vithalrao. Formal proceedings were recorded. 6. Thereafter police Superintendent and members of the raiding party along with Tukaram reached the accused/respondent. The police Superintendent went to meet the accused and treated the hands of the respondent with Sodium Carbonate solution, wherein, the hands of the respondent/accused became pink. At that time, respondent was asked about Rs. 1400/- which according to Tukaram was paid to him towards illegal gratification but the accused denied having received any such amount. Police Superintendent and Vinod Kumar Dubey then persuaded Nathmal Jain, and asked to produce the money. According to PW Upadhyay on being enqauired Nath Mal told him that the money was paid to him and the said amount was then given to the daughter of the accused. Thereafter the money was brought by the daughter Rashmi, aged about 4 years from the house of the accused. The said amount of Rs. 1400/- recovered which were the same note as numbered in the panchnama. 7. On the aforesaid facts the respondent was arrested. Thereafter the money was brought by the daughter Rashmi, aged about 4 years from the house of the accused. The said amount of Rs. 1400/- recovered which were the same note as numbered in the panchnama. 7. On the aforesaid facts the respondent was arrested. Sanction was granted for prosecution of the respondent/accused by Shri R. S. Bhal, Superintending Engineer, on 12-2-1987, Ex.P.10, and challan was presented against the respondent and Shri Nathmal Jain, under section 161 of Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. The charges were denied by the accused persons and therefore the trial Judge on the basis of evidence which came on record after holding that there were contradictions in the case of prosecution as regard the demand and payment of the so-called illegal gratification to the respondent acquitted him of the Charge. 8. Against this Judgment the prosecution has come in appeal. According to the appellant, special judge has failed to appreciate that it was the case of the receipt of illegal gratification. The respondent had asked the complainant to pay Rs. 1500/- for re-connection of the electric supply in his agricultural field over and above the legal dues payable of such re-connection. A sum of Rs. 1400/- which was the amount demanded and paid to the respondent was recovered from his house by the raiding party. Thus presumption arose in favour of the prosecution under section 20 of the Act, which presumption was not rebutted by the accused. 9. It is also alleged that the contradiction about actual amount paid and recovered, than what was demanded as per the Complaint was of no consequence, inasmuch as what is important is as to what was the illegal demand and not the amount demanded or recovered. It has also been submitted that the trial Court has committed an error in ignoring statement made by Ratilal Choudhary (PW-2) and Vinod Kumar Dubey (PW-6) regarding the recovery of the tainted money which fully supported the case of prosecution as deposed by PW Tukaram the Complainant. 10. On the other hand, learned counsel appearing for the respondent has submitted that in this case there are so many contradictions in the story of the prosecution inasmuch as, besides the difference of amount, the prosecution has failed to prove demand and acceptance of any illegal gratification by the accused from the complainant. 10. On the other hand, learned counsel appearing for the respondent has submitted that in this case there are so many contradictions in the story of the prosecution inasmuch as, besides the difference of amount, the prosecution has failed to prove demand and acceptance of any illegal gratification by the accused from the complainant. There is also no corroboration of the statement of the Complainant. It is submitted that the judgment of the trial Court is well reasoned and does not suffer from any infirmity. It is also submitted that if two views are possible, one which favours the accused must prevail and as such the appeal filed by the M. P. State Electricity Board against the acquittal of the accused/respondent deserves to be dismissed. To prove their case, the prosecution examined 9 witnesses including the complainant. No evidence was led from the side of the accused in defence. 11. In his statement PW Tukaram, the complainant had deposed that for the purposes of reconnecting electricity, after depositing the dues payable to the tune of Rs. 281/- in the electricity office as per receipt, Ex.P.6, Rs. 750/- was demanded by the respondent. Later on he demanded Rs. 1500/-. The complainant disclosed this fact to his friend Ratilal Choudhary. On his advise he went to the office of Lokayukata so as to get the respondent arrested red handed. Thereafter complainant and Ratilal Choudhary reached the office of Lokayukta and deposited Rs. 1400/- of Rs. 100/- each, as alleged by Tukaram in his complainat and is also corroborated by PW-Pratap. The aforesaid amount was claimed by the respondent/accused for reconnection of the electricity connection. 12. There are contradiction in the story of the prosecution in respect of the statement of Tukaram itself regarding demand and acceptance of the money by the respondent. Further there is no corroboration by any other witness. In fact even Ratilal is not a witness regarding payment of Rs. 1500/-. In this regard the testimony of all other witnesses who were part of the raiding party but who were not present at the time of handing over of the money is that the money was paid by the complainant to a person sitting with the accused. This is what was told by the complainant himself. Thus neither there was any evidence of payment nor of acceptance of illegal gratification by the accused except the testimony of the Complainant. This is what was told by the complainant himself. Thus neither there was any evidence of payment nor of acceptance of illegal gratification by the accused except the testimony of the Complainant. 13. We have heard learned counsel appearing for the appellant as well as of the respondent at length, we have also scrutinized record and judgment to find out whether respondent committed a criminal misconduct and thereafter rendered himself liable for prosecution while working as junior engineer posted at Khetiya with M.P.EB. As per evidence led on behalf of the prosecution it was not proved that any statement was made upon complainant to pay a sum of Rs. 1400/- as illegal gratification for reconnecting agricultural field/farm of the complainant or such amount was accepted by the respondent/accused. Except for the statement of PW-Tukaram other witnesses have not supported this aspect of the statement of Tukaram. Of course it has come in evidence about the recovery of a sum of Rs. 1400/- from the house of the respondent but, not from the respondent. 14. The trial Court has observed that the testimony of a person who offers bribe is to be supported by some other independent evidence and his sole statement cannot be taken as basis of conviction. Reference is made to the decision delivered in the case of Kamleshwar Mishra vs. State of M. P. reported in Cri. Law. Reporter (M. P.) Note 68. The trial Court has discussed the issue in paragraph No. 23 and 34 of the judgment. Regarding the payment, according to Tukaram the illegal gratification amount of Rs. 1400/- were transferred by the respondent to some other person who was sitting beside. In this regard Suresh who also appears as prosecution witness has not supported the statement of Tukaram. Rather he has very categorically stated that the complainant has neither paid the illegal gratification amount to the respondent or to the person sitting beside him. Suresh has not explained anything asked by the respondent as to whether he has brought the money or not. Even on the aspect of the demand of illegal gratification, there is no evidence of the prosecution except for the statement of Tukaram, whose statement has been contradicted by one of the prosecution witness Suresh (PW-3). 15. Para No. 23 of the impugned judgment is reproduced for the sake of reference :- 16. Even on the aspect of the demand of illegal gratification, there is no evidence of the prosecution except for the statement of Tukaram, whose statement has been contradicted by one of the prosecution witness Suresh (PW-3). 15. Para No. 23 of the impugned judgment is reproduced for the sake of reference :- 16. It would also be appropriate to take note of para 34 of the impugned judgment wherein the trial Court has observed as under :- "34. It is well settled that in the matter of trap cases particularly when the initial part or the genesis of that story of demand and negotiations is found to be untrustworthy, then the entire prosecution case must fail for the simple reason that the testimony of the complainant by itself can never be accepted. Under section 165 of the Indian Penal Code, the complainant in such anticorruption cases is the bribe giver and is an accomplice to the offence of illegal gratification is evidence therefore, must be scrutinized with great caution and if the major part of the version given by him is found to be false, there is no reason why the remaining part of his version should be accepted." 17. Even though witness Vinod Kumar Dubey, Ramchandra Solanki, supported the case of the prosecution to the extent of recovery of amount from the house of the respondent, but they are interested witnesses. Vinod Kumar (PW-6) has stated that as per Tukaram the money was not paid to the accused. Same is the position of Ramchandra(PW-7). Even as per superintendent R. N. Upadhaya (PW-9) Tukaram stated that he paid money to a person sitting beside the accused. This fact is also corroborated by the sanction order, Ex.P/10. In the aforesaid document it has been mentioned, in para No. 17 as under :- 18. In these circumstances, the trial Court held there is contradiction in the case of the prosecution. The lacuna in evidence with respect to payment and acceptance of money and the contradiction in the statement of Tukaram in the light of the statement made by Vinod Kumar Ramchandra Solanki and even police superintendent contradicts the statement of Tukaram that he paid money to the accused. Hence the case of the prosecution is totally untrustworthy. The lacuna in evidence with respect to payment and acceptance of money and the contradiction in the statement of Tukaram in the light of the statement made by Vinod Kumar Ramchandra Solanki and even police superintendent contradicts the statement of Tukaram that he paid money to the accused. Hence the case of the prosecution is totally untrustworthy. The trial Court has held that in a trap case it is necessary for the prosecution to prove that how was accused in connection with some understanding with respect to the payment and receipt of the demand. 19. The learned counsel for the appellant however submitted that once the money has been recovered from the house of the respondent as produced by his own daughter, presumption under section 20 arises against the appellant with respect to receipt of illegal gratification. The said presumption is sufficient to hold the accused guilty of the crime. 20. However learned counsel for the respondent has submitted that before raising presumption under section 20 of the Prevention of Corruption Act, it is necessary for the prosecution to discharge initial burden i.e. the demand and acceptance of the illegal gratification by the accused. Reliance has been placed upon a judgment delivered by the Apex Court in the case of Subash Parbat Sonvane vs. State of Gujarat in Cr. A. No. 546/2002, reported in AIR 2003 SC 2169 . In the aforesaid judgment it has been held that mere acceptance of money without there being any other evidence is not sufficient. The relevant discussion in that judgment is reproduced as under :- "The learned senior counsel Mr. Anand appearing on behalf of appellant submitted that the judgment and order passed by the High Court confirming the conviction of the appellant under section 13(1)(d) of the Act is on the face of it illegal and erroneous. He submitted that for convicting the appellant for the offence under section 13(1)(d), the prosecution must establish that by corrupt and illegal means accused has obtained for himself or for any other person any valuable thing or pecuniary advantage. He submitted that in the present case, there is no evidence on record that appellant 'obtained' any amount by corrupt or illegal means. In our view, mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under section 13(1)(d). Section 13(1)(d) is as under : "13. He submitted that in the present case, there is no evidence on record that appellant 'obtained' any amount by corrupt or illegal means. In our view, mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under section 13(1)(d). Section 13(1)(d) is as under : "13. Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct. (d) if he, (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest." In sections 7 and 13(1)(a) and (b) of the Act, the Legislature has specifically used the words 'accepts' or 'obtains'. As against this, there is departure in the language used in clause (1)(d) of section 13 and it has omitted the word 'accepts' and has emphasized the word 'obtains'. Further, the ingredient of sub-clause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under clause (ii) he obtains such thing by abusing his position as public servant; and sub-clause (iii) contemplates that while holding office as the public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under section 13(1)(d) there must be evidence on record that accused 'obtained' for himself or for any other person any valuable thing or pecuniary advantage by either corrupt illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest. 21. No doubt, section 20 of the Act deals with the burden of proof and onus. This section lays down a special rule of evidence. The presumption is one of law and thereunder a Court shall presume, inter alia, that what was paid amounted to gratification and accepted as a motive or reward for doing or forbearing to do any official act. The presumption to be drawn under section 20 of the Act is not inviolable. This section lays down a special rule of evidence. The presumption is one of law and thereunder a Court shall presume, inter alia, that what was paid amounted to gratification and accepted as a motive or reward for doing or forbearing to do any official act. The presumption to be drawn under section 20 of the Act is not inviolable. The question is, how the burden can be discharged. The rules of evidence pertaining to burden of proof are embodied in Chapter 7 of the Evidence Act. The phrase burden of proof has two meanings, one the burden of proof as a matter of law and pleading and the other the burden of establishing a case, the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the later is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party, it may comprise circumstantial evidence or presumptions of law or fact. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification. 22. This Court has dealt with a similar circumstances and the similar set of evidence, which is applicable in this case also. In the case of Bhanwarlal Garg vs. State of M. P., in Criminal Appeal No. 234/1996. delivered on 6th of July, 2011. In that case also the prosecution only relied upon the recovery money in a trap case. Except that there was no evidence on record regarding payment and acceptance of the money as illegal gratification. Observation made in that case, which are relevant for the present case are reproduced as under : "15. To support his case, the learned counsel for the appellant has relied upon the few judgments which goes to show that in the absence of any corroborating evidence regarding the demand the presumption cannot be sustained only on the basis of the statement of the complainant alone. To support his case, the learned counsel for the appellant has relied upon the few judgments which goes to show that in the absence of any corroborating evidence regarding the demand the presumption cannot be sustained only on the basis of the statement of the complainant alone. He has also cited the case of C. M. Girish Babu vs. CBI Cochin High Court of Kerala wherein the Hon'ble Supreme Court has held that mere recovery of tainted money from accused when substantive evidence was not reliable cannot be the basis of sustaining the conviction. It is true, that a presumption which has been raised which is available under section 20, needs to be rebutted by the accused but the burden of proof is not similar to the burden placed upon the prosecution to prove its case. Some portion of the judgment delivered in the case of C.M. Girish Babu (supra) are reproduced for the sake of reference :- "In the present case, it may not be really necessary to discuss the entire evidence available on record for the simple reason that the High Court acquitted Accused 1 of all the charges and found no case against him. It is Accused 1 who is stated to have demanded the gratification for clearing and sending the wet grinder to Dubai. The High Court as well as the trial Court found that there was no criminal conspiracy between the appellant and Accused 1 and therefore acquitted both of them of the charge under section 120-B Penal Code. The High Court upon re-appreciation of evidence came to the conclusion that the prosecution miserably failed to prove the charge against the appellant for the offence under section 13(1)(d) read with section 13(2) of the said Act. In this regard, the High Court found that there is nothing in the evidence of PW11, Natarajan, official witness, to arrive at any conclusion of the appellant making any demand of gratification. PW.11 stated that the conversation between the appellant and PW 10, was only nodding his head. It is for that reason the High Court recorded that the alleged demand by the appellant on 2-10-1999 is highly doubtful and is not proved beyond reasonable doubt. PW.11 stated that the conversation between the appellant and PW 10, was only nodding his head. It is for that reason the High Court recorded that the alleged demand by the appellant on 2-10-1999 is highly doubtful and is not proved beyond reasonable doubt. The High Court relied upon yet another circumstance creating a doubt as regards the demand of any gratification by the appellant as there is no mention of any such demand in Exhibit P-9, post-trap mahazar. The High Court accordingly acquitted the appellant of charges under section 13(1)(d) read with section 13(2) of the said Act." 18. This Court has also taken a similar view in the case of Sushil Kumar Jain vs. State of M. P., 2006(4) MPHT 247 wherein it has been held that the demand of bribe by the accused is essential ingredient of the offence and that the first information report is not a substantive evidence. In the case of Navkant Sharma vs. State of Madhya Pradesh reported in 2008 JLJ 386 this Court again observed that if no other witness corroborates the testimony of the complainant, the testimony of the complainant cannot be treated as a sole basis to convict the accused inasmuch as, the testimony of the complainant whose status is not better of the accomplice cannot be made a higher status. Reliance on that case was also placed upon a judgment of the Apex Court delivered in the case of Pannalal Damodar Rathi vs. State of Maharashtra, 1979(4) SCC 526 . "20. We have already noticed the inconsistency and contradictions in the statement of other witnesses which causes serious doubt on the case of the prosecution inasmuch as, Puralal is concerned, he has improved upon his statement which fact has been admitted by him in his cross-examination. Insofar as he has stated something which he did not state to the Police. As has already been pointed out he was not a witness to the first incident in terms of the complaint but he tries to detail about the first incident also. Insofar as he has stated something which he did not state to the Police. As has already been pointed out he was not a witness to the first incident in terms of the complaint but he tries to detail about the first incident also. So far as the other witnesses are concerned, no one has proved the case of the prosecution regarding the demand at the second occasion when the trap was laid rather the statement of the complainant goes to show that the allegations are even otherwise shaky inasmuch as, in his statement in paragraph 7 he says that when he went to the Vikas Khand Office a meeting was going on. At that time, the appellant not only scolded him but asked him to stand where he was standing and thereafter he came near the appellant and wanted the appellant to pass on the money. It has come in the statement of Puralal, at that time that there were 14-15 Secretaries present in the meeting and it is highly improbable that at such a place, the appellant would make the demand as stated above, none of the other witness has corroborated the statement of the complainant regarding the demand. Even otherwise the essential ingredients of section 161 of the Penal Code that the bribe which was demanded was for showing or forbearing to show any favour in exercise of official functions has also not come on record in as much as, even Puralal has not stated that the bribe was to be transferred for writing better inspection reports which was a case set up in the complaint by the complainant which complaint cannot be taken as a substantive evidence." The main ingredients of the charge under section 161 of the Penal Code are these; (1) that the accused was a public servant. (2) That he obtained from any person any illegal gratification. (3) The gratification should be other than legal remuneration as a motive or reward for doing the forbearing to do any official act or for showing or forbearing to show, in the exercise of his official junctions, favor or disfavour to the person. 23. In the present case it cannot be disputed that while hearing an appeal against an order of acquittal the Court has power to reassess the evidence on record and reach the conclusion upon the estimate of the evidence. 23. In the present case it cannot be disputed that while hearing an appeal against an order of acquittal the Court has power to reassess the evidence on record and reach the conclusion upon the estimate of the evidence. But as laid down by the Privy Council in Seo Swarup vs. Emperor, AIR 1934 PC 227 and reitrated by the Supreme Court in Narayan Ittiravi vs. State of Trav, AIR 1953 SC 478 , in exercising these powers the High Court should and will always given proper weight and consideration to such matters, the view of the trial Court as to the credibility or witnesses, the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial, the right of the accused to the benefit of any doubt, and the slowness of the appellate Court in disturbing the finding of fact arrived at by a judge who had the advantage of seeing the witnesses. 24. In view of the above and the judgment referred by us, the submission made on behalf of the learned senior counsel appearing for the appellant that in this case, there was enough evidence with regard to recovery of the tainted money from the respondent whose hands were also turned pinked when treated with Sodium Carbonet Solution provided sufficient material to support his conviction, is of no consequence in the absence of corroboration of the prosecution case regarding payment and receipt of illegal gratification of the respondent from the appellant. 25. Additionally, when two views are possible, it is well settled a view favouring the accused can also be accepted. 26. Considering the nature of evidence, which is on record, the lacuna of story of prosecution, demand and acceptance, contradiction in the statement of complainant and the statement made by other witnesses in this case, we find that the judgment of the trial Court does not call for any interference. 27. We are of the considered view that this is a case where the appeal of the State is liable to be dismissed and is accordingly dismissed.