Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 516 (RAJ)

Mamchand Singh v. State of Rajasthan

2011-03-08

R.S.CHAUHAN

body2011
JUDGMENT 1. - The Appellant has been convicted for offence under Section 7 of Prevention of Corruption Act and has been sentenced to one year of rigorous imprisonment and has been imposed with a fine of Rs. 3,000/- and directed to further undergo a term of three months of simple imprisonment in default thereof. The Appellant has also been convicted for offences under Section 13(1)(d) read with Section 13(2) of the Act and sentenced to two years of rigorous imprisonment and has been imposed with a fine of Rs. 5,000/- and directed to further undergo a term of five months of simple imprisonment in default thereof, vide judgment dated 28.02.2011 passed by the Special Judge, Court (Prevention of Corruption Act). Aggrieved by the said judgment, the Appellant has filed the present criminal appeal before this Court. 2. This Court has no hesitation in suspending the sentence of the Appellant as the maximum period of his sentence is two years; it would not be possible for this Court to hear the case within a period of two years. 3. Therefore, this Court suspends the sentences of Appellant, Mamchand Singh S/o Sh. Raj Singh, during the pendency of the appeal provided he furnishes a personal bond of Rs. 30,000/- (Rupees Thirty Thousand) with two sureties of the same amount to the satisfaction of the learned trial Court to the effect that he shall appear before this Court on 08.04.2011 and as and when called upon to do so. 4. However, the issue before this Court is whether the conviction should be stayed or not ? 5. The learned Counsel for the Appellant, Mr. Sandeep Pathak, has vehemently contended that the complainant, Piyush Tiwari, had initially lodged a complaint against Mr. Raghav. It is Mr. Raghav, who had demanded a bribe of Rs. 2,500/- for preparing and releasing service tax certificate. However, instead of convicting Mr. Raghav, the Appellant has been convicted. Secondly, the complainant, Mr. Piyush Tiwari, has turned hostile and has not supported the case of the prosecution. In fact, Mr. Piyush Tiwari (P.W.9) has categorically stated that the Appellant is not the person who had demanded any bribe. Thirdly, the certificate was to be issued publicly without charging any money from the concerned person. Moreover, the Appellant was not the person who had the power to issue the said service tax certificate. In fact, Mr. Piyush Tiwari (P.W.9) has categorically stated that the Appellant is not the person who had demanded any bribe. Thirdly, the certificate was to be issued publicly without charging any money from the concerned person. Moreover, the Appellant was not the person who had the power to issue the said service tax certificate. Therefore, the element of pending the work is not satisfied in the present case. Fourthly, according to the Appellant, the amount of Rs. 1,000/- which was recovered from him was given by him to the complainant for publication of a particular advertisement by the complainant. However, as the complainant did not advertise, the complainant had come merely to return the said amount to the Appellant. Hence, there was valid justification for the amount recovered from the Appellant. Fifthly, the elements of demanding of bribe and its acceptance are also missing. Hence, the Appellant has wrongly been convicted for the aforementioned offences. Lastly, if the conviction were not set aside, he is likely to be lose his job. Thus, the conviction of the Appellant deserves to be stayed by this Court. 6. The learned Public Prosecutor has contended that from the very beginning, the prosecution has come up with a case that it is the Appellant who had impersonated himself to be Mr. Raghav. This is apparent both from the recovery proceedings and from other evidence which were produced during the course of trial. Secondly, merely because the Appellant is not in a position to do the work, he cannot escape from his liability as is obvious from the Explanation given in Section 7 of the P.C., Act. Thirdly, there is corroborative evidence in form of tape recorded conversation which exists to prove the fact that a demand was made. Moreover, according to the trap proceedings, the amount was recovered from the possession of the Appellant. Thus, the twin elements of demand and acceptance do exist. Fourthly, the defence taken by the Appellant was not given by him during the recovery proceedings. Thus, clearly it is an afterthought. Lastly, in the case of K.C. Sareen v. C.B.I., Chandigarh, (2001) 6 SCC 584 ] , the Hon'ble Supreme Court has clearly held that in case of Prevention of Corruption Act, the conviction should not be stayed even if the conviction would lead to a loss of service to the accused-offender. 7. Thus, clearly it is an afterthought. Lastly, in the case of K.C. Sareen v. C.B.I., Chandigarh, (2001) 6 SCC 584 ] , the Hon'ble Supreme Court has clearly held that in case of Prevention of Corruption Act, the conviction should not be stayed even if the conviction would lead to a loss of service to the accused-offender. 7. Without expressing any opinion on the merits and demerits of the case, this Court is not inclined to stay the conviction of the Appellant.Sentence suspended during pendency of proceedings. *******