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Madhya Pradesh High Court · body

2011 DIGILAW 1391 (MP)

State of M. P. v. Rafique Khan

2011-12-12

M.C.GARG, S.K.SETH

body2011
JUDGMENT : Asper M.C. Garg , J.:- Thisappeal has been filed by the State of Madhya Pradesh through its Special PoliceEstablishment, Lok Ayukta Office, Indore , to assail the judgment delivered bythe Special Judge (Prevention of Corruption Act), Dhar ,in Special Case No. 03/2000 acquitting the respondent of the charges underSections 7, 13(1 )( d) and 13(2) of the Prevention ofCorruption Act, 1988 delivered on..... The appeal was filed with an applicationfor grant of leave to file such an appeal, which was granted. 2.According to the appellant, the judgment of the Special Judge is notsustainable in law that the Special Judge has committed an error bydisbelieving Kailashchandra Bairagi (P.W. 2) the complainant who very specifically deposed about the demand of Rs . 8,000/- (later reduced to Rs .6,000/-) by the accused from him for the purpose of mutating the land belongingto him and his other brothers over and above the legal dues. It is submittedthat this had corroborated the complaint made by the complainant vide Exh . P-1 and the Panchnama ( Exh . P-2) regarding theamount paid by him to the Special Police Establishment Branch which money wasalso recovered from the respondent after the trap. It is also the caseof the appellant, that the Trial Judge also committed an error in disbelievingthe statement of Radheshyam (P.W. 5) and Arun Kumar Laharia (P.W. 6), whoalso corroborated acceptance of the illegal gratification by the respondent. Itis submitted, that the very fact, that the hand of the respondent/accusedturned pink, when dipped in the sodium carbonate solution was also notconsidered by the Judge erroneously. It is, thus, submitted that in the presentcase, there was ample evidence available on record for the purpose ofconvicting the respondent/accused. It is also submitted, that the reasons givenby the Lower Court in returning the finding of acquittal by holding that therewere doubts in the story of the prosecution, and that, the case was wronglyfoisted against the respondent/accused on account of enmity, is also notcorrect. It is thus prayed that the appeal be accepted and respondent beconvicted of the charges framed against him. 3.Nobody has come forward to address arguments on behalf of therespondent/accused despite service of notice. However, we have perused therecord, including the judgment passed by the learnedSpecial Judge. It is thus prayed that the appeal be accepted and respondent beconvicted of the charges framed against him. 3.Nobody has come forward to address arguments on behalf of therespondent/accused despite service of notice. However, we have perused therecord, including the judgment passed by the learnedSpecial Judge. 4.Briefly stating, the case of the prosecution is, that after a family partitionof his property by Laxmandas , father of thecomplainant in the year 1980, the property was to be mutated in the name of allthe shareholders and a Rin Pustika was to be issued. For that, separate applications were filed before the Naib Tehsildar . The partitiondocument was also placed before the Naib Tehsildar on 16-6-1999 .The Naib Tehsildar askedthe Patwari to prepare a nomination filed on 23-6-1999 . On 24-6-1999 , the respondent/accused measured theland and asked the complainant to pay a sum of Rs .6,000/- for the purpose of issuing Rin Pustika and mutation of the property as illegalgratification. On 25-6-1999 ,the complainant approached Special Police Establishment Office of the VigilanceDepartment in Indore and informed them about the illegal demand by filing a complaint which is Exh . P-1. A tape-record was givenby Shri Mohan Singh of the Special PoliceEstablishment to the complainant, so that he can record the discussions hadwith the complainant regarding the demand of illegal gratification, which wasdone by the complainant on 29-6-1999 at the house of accused in presence of Radheshyam (P.W. 5) his associate. On 30-6-1999 a trap party was formed and at thattime, a sum of Rs . 6,000/-, which was brought by thecomplainant, i.e., 11 notes of Rs . 500/- and 5 fivenotes of Rs . 100/-, were taken into possession. Theywere treated with Phenolphthalein powder and were returned to Kailashchandra Bairagi withinstructions to hand over the same to the accused when demanded. Trap was laidon the same day at about 11.00 a.m. at the house of the respondent/accused. The complainant paid a sum of Rs . 6,000/- to the accused as illegal gratification, whichthe accused kept in his pocket. On the signal of the complainant, the trapparty came near the accused. The notes were recovered from the pocket of theaccused and on treating of his hand with sodium carbonate solution it turnedpink. On that basis, other investigations were also carried out. FIR wasregistered and after completing investigation case was filed against therespondent which came up for disposal before the Special Judge. The notes were recovered from the pocket of theaccused and on treating of his hand with sodium carbonate solution it turnedpink. On that basis, other investigations were also carried out. FIR wasregistered and after completing investigation case was filed against therespondent which came up for disposal before the Special Judge. Charges wereframed though denied by the accused. Before filing the challan sanction was also obtained. 5.The defence of the respondent/accused was of totaldenial and that Patwari Parmanand Patil and Narendra hadprevious enmity with the respondent/ accused. They were related to complainant Kailashchandra . It was also his case that he had lodged areport against Balakdas , brother of complainant underSection 353 of the Indian Penal Code, which was also a reason for his falseinvolvement in this case. It was also submitted that the respondent/accused wasnot to do anything with respect to the work of the complainant, and thus therewas no reason for the complainant to deliver illegal gratification to theaccused. 6.After recording evidence of the prosecution comprising of 13 witnessesincluding the complainant who appeared as P.W. 2, the Special Judge afterscanning the evidence which was brought on record and came to the conclusionthat the prosecution failed to prove their case without reasonable doubt andhas acquitted the accused/respondent. He has given various reasons in supportof his decision. 7.It has been observed that the panch witnesses, namely Pradeep Kumar (P.W. 1) and Arun Kumar Laharia (P.W. 1) have not supported the storyof prosecution. In as much as they have deposed having not seen the complainanthanding over the illegal gratification to the respondent/accused and were alsonot able to hear demand if any made by the accused from the complainant. This fact, is also corroborated by the complainant in Paragraph41 of his statement. Moreover, according to Mohan Singh (P.W. 11), even thoughmembers of the trap party were standing near the house of theaccused/respondent, they are neither the witnesses of demand nor of theacceptance of illegal gratification. Even though, P.W. 11 says that he heardthe discussion between the complainant and the accused, but the witness Pradeep Kumar and Arun Kumar Laharia , as stated above, have contradicted P.W. 11 andthus, the Trial Court concluded that the entire case of the prosecution wasbased upon the sole testimony of Kailashchandra Bairagi , the complainant only which for other reasonsdiscussed hereinafter as not trustworthy. 8.The Special Judge further observed that even though as per the statement of thecomplainant a sum of Rs . 6,000/- was received fromthe pocket of the respondent/accused and the number of notes tallied with Exh . P-2 and that the hand of the respondent/accused whentreated with sodium carbonate solution and then it became pink and that thescript (tape-recorded version) about the discussion had between the complainantand the accused was prepared, in view of the submissions made by therespondent, that the complainant had enmity with him, the aforesaid factrequired carefully scrutiny and independent corroboration. 9.In this regard the Special Judge also observed that the prosecution has failedto prove that the respondent/accused agreed to receive illegal gratificationfor specific job to be done for the complainant in as much as in the presentcase, nothing was to be done by the respondent/accused for carrying out anywork of the complainant. This has been discussed by the learned Sessions Judgein Paragraphs 14 and 15 of the judgment which are reproduced for the sake ofreference :- XXXXXXXXXXXX 10.The Sessions Judge has also discussed the evidence about demand of illegalgratification by the respondent/accused from the complainant. It is observedthat as per the complainant, the demand was made by the respondent/accused fromhis son Hanumandas Bairagi who appeared as P.W. 3 and has deposed that on 24-6-1999 , when he was at his house, therespondent/accused called him and asked for a sum of Rs .1,500 each. In Paragraph 4 of his statement he stated that at that time theother co-owners of the land were not with him. He also stated that theaforesaid demand was made by taking him aside. No other witnesswere aware of any such demand. However, in Paragraph 3 of his depositionhe stated that Rajkumari , Savitribai and Omprakash were present at that time, who are theother shareholders of the land and whose names were also to be mutated.However, none of them was produced as witnesses to support the case ofprosecution. There were contradictions in his statement made in Court and asmade to the police. 11.Learned Special Judge also found the story of illegal gratification by therespondent/accused from the complainant as doubtful, inasmuch as, Kailashchandra Bairagi (P.W. 2)in Paragraph 18 of his deposition stated, that at the time when measurement ofthe land was made, 10-15 persons were present on 24-6-1999 and at that time,the respondent/accused asked for the money. 11.Learned Special Judge also found the story of illegal gratification by therespondent/accused from the complainant as doubtful, inasmuch as, Kailashchandra Bairagi (P.W. 2)in Paragraph 18 of his deposition stated, that at the time when measurement ofthe land was made, 10-15 persons were present on 24-6-1999 and at that time,the respondent/accused asked for the money. None of those 15 persons has comein the witness box. In Para 33 of his depositions healso stated about informing other co-owners about the demand who as statedabove have not come forward to corroborate the police version. 12.The statement of the complainant with respect to demand of money by therespondent/accused at his house has also been found doubtful, inasmuch as,while in Paragraph 3 of his examination-in-chief he stated that on 25-6-1999 hehad gone to the house of the respondent/accused where discussion about themoney took place between him and the accuse, in Paragraph 21 he stated that : - XXXXXXXXXXXXXXXX But,this fact was not stated in Exhs . P-1and P-2. Even in his statement made to the police ( Exh .D-2) there is no such discussion. 13.In Paragraph 24 of his statement, the complainant admits that he had no workwith the respondent, but his work was-with Naib Tehsildar Shri Tarafdar . Thus, the Court has concluded that once thecomplainant had no work with the respondent/accused and the work was to be doneby Naib Tehsildar , thequestion of paying any illegal gratification to the respondent does not arise. 14.The Trial Court has also considered the veracity of the tape recorded versionin the light of the judgment of the Hon'ble SupremeCourt in Ram Singh Vs. Ram Singh, reported in AIR 1986 SC Page 3. It has beenobserved, that no person could identify the statement of the voice of theaccused or the complainant or associated with the recording of the discussionhad between the complainant and the accused. There was also no evidence thatafter the discussion, which the complainant had with the respondent/accused, tape was not opened. 15.In this regard Paragraphs 22 and 23 of the judgment are reproduced hereunder : - XXXXXXXXXXXXXXXXX 16.The Special Judge also discussed the defence ofenmity in Paragraph 25 of the judgment. There was also no evidence thatafter the discussion, which the complainant had with the respondent/accused, tape was not opened. 15.In this regard Paragraphs 22 and 23 of the judgment are reproduced hereunder : - XXXXXXXXXXXXXXXXX 16.The Special Judge also discussed the defence ofenmity in Paragraph 25 of the judgment. There is also cross-examination of thecomplainant in Para 11, where he has accepted the factum of allotting land to Dhakkad Samaj in Village Panchayat Rajaud as Secretary and that in this regard, a complaint was also made against him.Further in Paragraph 13, he also admits that the land allotted to Sitabai w/o Parmanand Patil , a complaint was made by Patwari Narendra Dwivedi , whobecame Patwari after Rafique .Learned Trial Court also taken a specific note regarding previous enmitybetween him on one hand and Narendra Dwivedi Patwari and Rafique on the other hand. Copies of the complainants havebeen filed in his statement under Section 313, Cr.PC . 17.Paragraph 26 of the judgment is also reproduced hereunder : - XXXXXXXXXXXXXXXXXX 18.In these circumstances, when there was a defence available to the accused, and the only witness toprove the illegal gratification was the complainant himself, who had reasons tofoist a false case against the accused, the veracity of that person becamedoubtful and this is a reason the learned Special Judge in having not acceptedhis testimony. This is also relevant from the point of view that even withrespect to the payment of the illegal gratification, there is lot ofinfirmities in the statement of the complainant, inasmuch as, in Paragraph 35the complainant says that he paid the money to the accused in the veranda,whereas in Exh . D-1, i.e., the statement made to thePolice he stated that the money was paid inside the house and that the same waskept by Rafique after counting in his pocket.According to Radheshyam he was not with thecomplainant at the relevant time whereas the complainant says that at the timewhen the money was paid Radheshyam was also standing. 19.In these circumstances, the testimony of the complainant was rightly notaccepted by the learned Sessions Judge. The reasons given by the learnedSessions Judge are flowing from the records. It is also well settled that thetestimony of the complainant has to be examined more carefully as he alsostands in the same footings, as the accused stand in a trap case. 19.In these circumstances, the testimony of the complainant was rightly notaccepted by the learned Sessions Judge. The reasons given by the learnedSessions Judge are flowing from the records. It is also well settled that thetestimony of the complainant has to be examined more carefully as he alsostands in the same footings, as the accused stand in a trap case. 20.It is also well settled that if the two views are possible, one which favours the accused, must be accepted while appreciatingthe evidence in an appeal filed against the judgment of acquittal. 21.Consequently, there is no reason to interfere with the judgment of the learnedSpecial Judge. The appeal filed by the appellant is, thus, dismissed.