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2011 DIGILAW 302 (MP)

Rajendra Prasad v. State of Madhya Pradesh

2011-03-04

R.C.MISHRA, VIMLA JAIN

body2011
JUDGMENT (1) This appeal has been preferred against judgment-dated 10.07.1997 passed by the Special Judge, Sagar in Special Case No.7/92, whereby the appellant was convicted under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 1000/- and in default, to suffer R.I. for 3 months. (2) By that judgment only, Avadhnarayan (since dead), one of the co-accused, was convicted and sentenced as under - with direction that the custodial sentences shall run concurrently whereas the other one namely Aniruddha was acquitted of these offences. No appeal has been presented by the State against the order of acquittal and the appeal, filed by Avadhnarayan and registered as Criminal Appeal No. 1459/1997, has already been dismissed as abated. The prosecution story, in brief, may be narrated thus- (a) Two years prior to the incident in question, operations of revenue survey were carried out in Village Khaijra Mafi located in the Revenue Circle of Surkhi for settlement of lands situated therein. In the process, areas of agricultural lands held by complainant namely Kunwar Singh (PW5), his parents Siyarani and Veer Singh and co-villager Jwala Prasad (PW4) were reduced by 0.05, 0.60, 0.40 and 0.25 acre respectively. On 12.02.1988, they moved applications, under Section 125 of Madhya Pradesh Land Revenue Code, 1959, before Assistant Settlement Officer, Sagar for correction of the revenue records. The officer, in turn, ordered registration of cases and directed the Revenue Inspector (Settlement) to submit report along with maps. Accordingly, four cases, numbered as 49-A9/1987-88,50-A9/1987-88 and 51-A9/1987-88 and 48-A9/1987-88, were registered. (b) On 10.06.1988, the Revenue Inspector viz. co-accused Avadhnarayan submitted reports and the cases were adjourned for 03.08.1988. In the meanwhile, the appellant was posted as the Assistant Settlement Officer. He, even without indicating as to in what respect the report in each case was incomplete, passed orders on 03.08.1988 directing the Revenue Inspector to submit a complete report and posted the cases on 18.08.1988 for hearing. However, the direction was not complied with and for this purpose, the appellant continued to grant adjournments liberally. (c) Ultimately, on 24.07.1989, Kunwar Singh and Jwala Prasad approached the appellant who, in presence of co-accused Avadhnarayan, demanded a sum of Rs.400/- as illegal gratification in each case for incorporating necessary correction as well as for issuing a modified lease. However, the direction was not complied with and for this purpose, the appellant continued to grant adjournments liberally. (c) Ultimately, on 24.07.1989, Kunwar Singh and Jwala Prasad approached the appellant who, in presence of co-accused Avadhnarayan, demanded a sum of Rs.400/- as illegal gratification in each case for incorporating necessary correction as well as for issuing a modified lease. He further asked Kunwar Singh to pay the amount to Avadhnarayan for being passed on to him and fixed 02.08.1989 as the date for the purpose. (d) Not willing to pay the bribe, on 02.08.1989, Kunwar Singh went to the office of Superintendent of Police (Lokayukta), Sagar where he submitted application (Ex.P- 2) for initiating necessary action against both the revenue officers. G.S. Jatav, the then in- charge of the office, authorized Nirbhay Singh (PW7), Deputy Superintendent of Police, to register a case and to have a trap arranged. Accordingly, at 2.00 p.m., an FIR, in the form of Dehati Nalishi (Ex.P-15), was recorded and necessary pre-trap formalities were observed in presence of Balkrishna Mathur and Shishir Kumar Shrivastava, posted respectively as Deputy Collector and District Registrar at Sagar only. The DSP took into possession four currency notes each in the denomination of Rs.100/- brought by the complainant Kunwar Singh for the purpose and got them duly treated with phenol- phthalein. The tainted currency notes were kept in the shirt pocket of Kunwar Singh, who was directed to give signal by lighting a Bidi after handing over the money to Avadhnarayan. (e) At about 4.30 p.m., the trap party along with the complainant reached the appellant's office, located in Shanichari at Sagar, where both the co-accused were found sitting. In response to the corresponding query, Kunwar Singh informed Avadhnarayan that he had brought the bribe money. Thereupon, Avadhnarayan asked him to come out of the office. Accordingly, Kunwar Singh accompanied both the co-accused upto a nearby hotel where he gave the tainted money to Avadhnarayan who, in turn, handed over the same to Aniruddha. At this point of time, Kunwar Singh gave the appointed signal and members of the trap party arrived. The Detecting Officer namely Nirbhay Singh recovered the currency notes from Aniruddha's vest pocket. The phenolphthalein tests conducted on the fingers of both the hands of Avadhnarayan and Aniruddha and the pocket gave positive results. At this point of time, Kunwar Singh gave the appointed signal and members of the trap party arrived. The Detecting Officer namely Nirbhay Singh recovered the currency notes from Aniruddha's vest pocket. The phenolphthalein tests conducted on the fingers of both the hands of Avadhnarayan and Aniruddha and the pocket gave positive results. Samples of the corresponding parts of the Sodium Carbonate Solution were duly seized and forwarded to FSL, Sagar. The Report (Ex.P-19) received from the Laboratory also indicated presence of phenolphthalein in the hand washes as well as in the pocket wash. (f) After completing the investigation and obtaining sanction (Ex.P-1), the charge-sheet was filed before the Special Court at Sagar. (3) The appellant was charged with the offence punishable under Section 7 of the Act whereas the charges of the offences punishable under Sections 7 and 13(1)(d) read with 13(2) thereof were framed against co-accused Avadhnarayan and Aniruddha. The appellant pleaded false implication due to animosity. In his examination, under Section 313 of the Code of Criminal Procedure, he further asserted that he was roped in the case at the instance of one Krishna Singh, the mausa (uncle) of Kunwar Singh and a leader of Janta Dal. According to him, Krishna Singh used to come to his office and exert pressure on him to pass orders as per his direction and upon refusal, threatened to see him removed from the post. However, no evidence was led to substantiate the plea. (4) The co-accused also abjured the guilt and offered different explanations. According to Avadhnarayan, he neither demanded nor received the sum of Rs.400/- as bribe and had only taken Zarda (prepared tobacco) from Kunwar Singh whereas Aniruddha, while admitting that the amount was recovered from the pocket of his vest, asserted that it was advanced by Avadhnarayan as loan in view of the fact that due to non-sanction of medical leave, his salary was not disbursed till the date of incident viz. 02.08.1989. Purushottam (DW1), the owner of the hotel wherein the co-accused were apprehended, came forward to support the defence taken by Avadhnarayan by deposing that the amount of Rs.400/- was given by Kunwar Singh to Aniruddha for being handed over to Avadhnarayan against a loan transaction. As per his statement, Avadhnarayan had arrived in the hotel much after handing over of the money to Aniruddha and was apprehended immediately after taking Zarda from Kunwar Singh. As per his statement, Avadhnarayan had arrived in the hotel much after handing over of the money to Aniruddha and was apprehended immediately after taking Zarda from Kunwar Singh. The other defence witness Ramesh Kumar Soni (DW2) supported Aniruddha's statement by affirming that his salary for the month of July, 1989 was paid on 4th of August. The prosecution sought to prove the charges by examining as many as 8 witnesses including complainant Kunwar Singh (PW5), Jwala Prasad (PW4) and Investigating Officer Nirbhay Singh (PW7). Upon consideration of the entire evidence, learned trial Judge, for the reasons assigned in the judgment, came to the conclusion that the prosecution had failed to prove guilt of Aniruddha and proceeded to acquit him of both the charges. (5) Legality and propriety of the impugned conviction have been challenged on the following grounds - (i) Delay in deciding the case could hardly be considered as a ground for presuming that the appellant was interested in obtaining the illegal gratification. (ii) In the application (Ex.P-2), pre-trap panchnama (Ex.P-3) and Dehati Nalishi (Ex.P-15), name of the appellant was not reflected as the person who had asked to bring the bribe money on the date of the trap. (iii) The delay of nearly 8 days in making the complaint as to demand of bribe was, by itself, sufficient to doubt veracity of the prosecution version. (vi) In the peculiar facts and circumstances of the case, it could not be held that co-accused Avadhnarayan had accepted the illegal gratification on behalf of the appellant. In response, learned Special Public Prosecutor, while making reference to the incriminating pieces of evidence, has submitted that the conviction is well-merited. (6) At the outset, it may be observed that the contention No.(ii) [above] is apparently misconceived in view of the fact that in the application (Ex.P-2), the complainant Kunwar Singh had not only addressed the appellant by surname, though incorrectly, but also described him as Bandobast Sahayak Adhikari (Settlement Assistant Officer). Moreover, it was clearly mentioned that officials viz. the appellant and Avadhnarayan were demanding illegal gratification in connection with his appeal filed nearly a year before, against reduction of area of his family land by 1 acre during the settlement operations. Moreover, it was clearly mentioned that officials viz. the appellant and Avadhnarayan were demanding illegal gratification in connection with his appeal filed nearly a year before, against reduction of area of his family land by 1 acre during the settlement operations. Coming to the other contentions, it may be seen that recovery of 4 currency notes each in denomination of Rs.100/-, smeared with phenolphthalein powder, from the vest pocket of Aniruddha, was not seriously disputed. Further, evidence of Nirbhay Singh (PW7) and other official members of the trap party namely Jamuna Prasad (PW1), Mool Chandra (PW2) and Saukhilal (PW6) lent sufficient corroboration to the statement of Kunwar Singh (PW5) that it was Avadhnarayan who had passed the tainted money to Aniruddha, immediately after receiving the same from him. They were unanimous in asserting that solution of sodium carbonate, that was used for washing hands of Avadhnarayan, had turned pink indicating presence of phenolphthalein. (7) Statement of Nirbhay Singh, the Dy. S.P., who laid the trap, did not suffer from any grave infirmity with reference to the constents of the pre-trap panchnama (Ex.P- 3), the post-trap panchnama (Ex.P-4) and memos (Ex.P-12 and Ex.P13), evidencing seizure of the currency notes and vest from the possession of Aniruddha. (8) In the face of the overwhelming incriminating evidence on record, part of the prosecution case as against the co-accused was rightly held to be established beyond a reasonable doubt. Now, let us examine as to whether there was sufficient evidence to prove complicity of the appellant in the matter. A bare perusal of the records of the cases, bearing Nos. 49, 50, 51 (Articles 'A', 'B' and 'C'), would disclose following common facts - (i) As Assistant Settlement Officer, the appellant had the occasion to deal with the cases from 03.08.1988 onwards. Till that stage of the proceedings, the report of Revenue Inspector had already been received and his predecessor, without making any observation as to incompleteness of the report, had directed, vide order-dated 10.6.1988, production of the map prepared by Patwari. (ii) On 03.08.1988, the appellant directed to call for a complete report from the Revenue Inspector. However, while reviewing the order-dated 10.06.1988 in this way, he did not clarify the points on which the report suffered from incompleteness or ambiguity. (ii) On 03.08.1988, the appellant directed to call for a complete report from the Revenue Inspector. However, while reviewing the order-dated 10.06.1988 in this way, he did not clarify the points on which the report suffered from incompleteness or ambiguity. (iii) The appellant had adjourned the case for want of complete report on as many as 13 occasions without taking any action against the Revenue Inspector. (iv) Ultimately, on 24.07.1989, name of the Revenue Inspector viz. Avadhnarayan was reflected in the order-sheet and he was directed to furnish the desired report without any further delay. It is relevant to note that in all these cases, Kunwar Singh (PW5) had signed the corresponding order-sheets on each and every date of hearing in his capacity as the applicant in case No.49 and as the representative of his parents, who were the applicants in case Nos.50 and 51. (9) Complainant Kunwar Singh (PW5) categorically stated that on 24.07.1989, in the office only, Avadhnarayan as well as the appellant demanded a sum of Rs.400/- as illegal gratification for issuing an amended Patta. According to him, he had first approached Avadhnarayan who had taken him inside the appellant's office that was situated in the first floor of the building. It is true that the aforesaid date of demand was not mentioned in the application (Ex.P-2) but, fact of the matter is that in none of the order- sheets pertaining to any earlier date, presence of Avadhnarayan was reflected. Availability of Avadhnarayan's signatures on all the order-sheets scribed on 24.7.1989 lent support to the assertion made by Kunwar Singh that both the accused viz. the appellant and Avadhnarayan had demanded illegal gratification on that date. (10) While stating that he had also attended the appellant's office on 24.07.1989 in connection with hearing of his case, Jwala Prasad (PW4) duly corroborated the evidence of Kunwar Singh. In Para 2 of his examination- in-chief as well as in Para 7 of his cross-examination, he was emphatic in deposing that the demand of Rs.400/- as bribe in each case was made by the appellant as well as Avadhnarayan in the office only. Certified copies of the relevant order-sheets pertaining to his case, numbered as 48, are also available on record. Nothing could be elicited in his cross-examination so as to suggest that he was, in any way, interested in securing conviction of the appellant on absolutely false grounds. Certified copies of the relevant order-sheets pertaining to his case, numbered as 48, are also available on record. Nothing could be elicited in his cross-examination so as to suggest that he was, in any way, interested in securing conviction of the appellant on absolutely false grounds. Although, in Para 9 of his cross-examination, Kunwar Singh admitted that Jwala Prasad was not present at the time when Avadhnarayan, before taking him to the office of the appellant, had demanded the bribe yet, in Para 2 thereof, he clearly asserted that the demand for illegal gratification was made by the appellant and Avadhnarayan in presence of Jwala Prasad whereas in Para 21, he further affirmed that Jwala Prasad and Avadhnarayan were present when hearing of the case was adjourned by the appellant. Thus, his deposition, if read as a whole, did not suffer from any material contradiction with reference to his case diary statement (Ex.D-1A). It is well settled that testimony of the bribe giver cannot be rejected simply because he is aggrieved by the conduct of the delinquent public servant (See. State of U.P. v. Zakaullah, 1998 (1) SCC 557 ): ( AIR 1998 SC 1474 ). The defence was too fragile to merit acceptance. (11) In this view of the matter, even if the evidence of Jwala Prasad is kept out of the consideration, a clear, cogent and creditworthy statement of the complainant Kunwar Singh on oath was sufficient to show that the appellant had demanded illegal gratification for passing a favourable order upon his application for correction of the revenue records. (12) However, learned counsel for the appellant, while making reference to the decisions of the Apex Court in Gulam Mahmood A. Malek v. State of Gujarat, AIR 1980 SC 1558 : (1980 Cri LJ 1096) and V. Venkata Subbarao v. State represented by Inspector of Police A.P., AIR 2007 SC 489 : (2007 Cri LJ 754), has submitted that delay of 8 days in reporting the matter to S.P.E. (Lokayukta) was fatal to the prosecution case. In Gulam Mahmood's case, the complainant, an accused in four cases, used to give money to the accused-appellant, a Bench clerk in court, on several occasions and had launched complaint about demand of bribe ten days thereafter whereas, in the present case, it was clearly established that the demand allegedly raised by the appellant and co-accused Avadhnarayan was the first and the only one made from the complainant who, in turn, had expressed, by way of the application (Ex.P- 2), his intention to get them trapped on the next date of hearing only. In V. Venkata Subbarao's case, complaint was filed 15 days after the alleged demand at the time when the cause for making that demand had already disappeared. As such, none of the said decisions has any application to the facts of the instant case. Reference has also been made to the decision of the Single Bench of this Court in Suresh Kumar Shrivastava v. State of M.P., 1994 MPLJ 30 : (1994 Cri LJ 3738 (MP) to substantiate the contention that the conviction was not sustainable in view of absence of motive on the part of the appellant to demand bribe. In that case, the complainant as well as the shadow witness had not corroborated the prosecution version that for payment of last installment of loan, the accused had demanded a bribe and further, for want of the final report of the valuer and the money from the Bank, the payment of last installment was not possible. But, the fact situation is altogether different here as it was the appellant, who had not only hampered the progress of the case by passing an unreasoned order but had also granted several adjournments without proposing any action against the Revenue Inspector Avadhnarayan for non-compliance with his orders to submit a complete report. Against this backdrop, it could easily be concluded that the case was adjourned repeatedly to extort the bribe from the complainant. Accordingly, the decision in Jagdish Chandra Makhija v. State of M.P., 1990 MPLJ 239 wherein the prosecution was not able to prove the circumstances necessitating demand of bribe also does not render any assistance to the appellant. Against this backdrop, it could easily be concluded that the case was adjourned repeatedly to extort the bribe from the complainant. Accordingly, the decision in Jagdish Chandra Makhija v. State of M.P., 1990 MPLJ 239 wherein the prosecution was not able to prove the circumstances necessitating demand of bribe also does not render any assistance to the appellant. (13) Placing strong reliance upon yet another decision of this Court in State of M.P. v. Anil Kumar Verma, 2007 (2) MPLJ 393 : (2007 Cri LJ 2919), learned counsel has still urged that the appellant deserved to be acquitted on the sole ground that the bribe money was not recovered from his possession. According to him, even presence of the appellant in his office at the time of the trap, was not established from the evidence on record. However, the contention is apparently misconceived as there are cases, though few and far between, wherein the Apex Court, while acquitting the co-accused who was employed as a conduit for the purpose of obtaining illegal gratification, has affirmed the conviction of the initiator of the demand (See. Virendranath v. State of Maharashtra, AIR 1996 SC 490 : (1995 AIR SCW 4382) and K. Subba Reddy v. State of Andhra Pradesh, AIR 2008 SC 106 ) : (2008 Cri LJ 345). In Virendranath's case, beforehand talk had ensued between complainant and the appellant only whereas the bribe money was taken by the co-accused. It was held that the appellant could not be acquitted of the charge under Section 7 of the Act on the ground that he did not actually receive money. Similarly, in K. Subba Reddy's case, the SLP filed by the main accused, an Excise Sub-Inspector, who had asked the complainant to pay the bribe money, in case of his absence, to the appellant, a Home Guard, was dismissed. (14) Turning to the case on hand, it may be seen that as the Assistant Settlement Officer, the appellant had the authority to grant the relief as prayed for by the complainant Kunwar Singh. The surrounding circumstances further indicated that the bribe money, paid to co-accused Avadhnarayan, was meant to be passed on the appellant. The offending act of the appellant was covered under Section 7 of the Act, which is a comprehensively worded penal provision. The surrounding circumstances further indicated that the bribe money, paid to co-accused Avadhnarayan, was meant to be passed on the appellant. The offending act of the appellant was covered under Section 7 of the Act, which is a comprehensively worded penal provision. Further, the presumption, under Section 20(1) of the Act, was attracted to the facts of the case, suggesting involvement of both the accused in the demand and delay with the sole motive of extracting money from the complainant (T. Shankar Prasad v. State of Andhra Pradesh, AIR 2004 SC 1242 : (2004 Cri U 884) followed). For these reasons, none of the contentions raised against legality and propriety of the conviction in question deserves acceptance. (15) Upon a re-appreciation the entire evidence on record as it stands, we are of the considered opinion that learned trial Judge did not commit any illegality in convicting the appellant of the offence charged with. (16) This brings us to the question of sentence. A considerable period of more than 21 years has already elapsed after the incident in question and in the meanwhile, the appellant has attained the age of 76 years. Taking into consideration the social impact of the crime and other facts and circumstances of the case including septuagenarian status of the appellant, interests of justice would be met if the period of custodial sentence is reduced to the minimum prescribed under the statute. In the result, the appeal is allowed in part. The impugned conviction and consequent fine sentence are hereby maintained. However, the term of sentence of imprisonment is reduced from three years to six months. (17) Appellant Rajendra Prasad is on bail. He is directed to surrender to his bail bonds before trial Court on or before 04.05.2011 for being committed to the custody for undergoing remaining part of the sentence. Order accordingly.