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2012 DIGILAW 11 (MP)

RAM MOHAN AGRAWAL v. STATE OF M. P.

2012-01-03

A.K.SHRIVASTAVA, S.R.WAGHMARE

body2012
JUDGMENT : A. K. SHRIVASTAVA, J. 1. By taking aid of section 374(2) of the Code of Criminal Procedure, 1973, the deceased-appellant has assailed his judgment of conviction and order of sentence dated 23-4-2011 passed by learned First Additional Sessions Judge cum Special Judge Indore in Special Case No. 9/1999 convicting him under sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (in short the Act) and thereby sentencing him to suffer one year and six months R.I. for each offence and fine Rs. 2,000/-, each in default further RI of 3 months each with a further stipulation that both the sentences shall run concurrently, this appeal has been filed. 2. In brief the case of prosecution is that one Kailash Gurwani (hereinafter shall be referred to as "complainant") is having a shop in which he is running the business in the name and style "Manbhawan Watch Company and Komal Watch Company". On 27-12-1998 at about 10.30 a.m. telephonically the complainant was informed that a complaint has been received in regard to his shop and relevant file has been constructed against him by the Commercial Tax Department and a raid is to be made at his business place as well as at his residence and for which only sanction order is to be received from Bhopal. Hence, it was directed telephonically to him that he should contact the accused at his residence at 2.00 p.m. Resultantly, the complainant along with his wife went to the residence of accused where he was informed by accused that a complaint has been received against the complainant that he has sold 10,000 watches without giving any bill and therefore a raid is proposed to be made and if this happens, the complainant would be required to pay tax in multiplicity. On this, the complainant told that his business is quite fair and further said that under the Scheme namely "Pradhanmantri Rojgar Yojna", his son is running the business. On being so stated by the complainant, the deceased-appellant directed complainant to meet after two days. Thereafter, on 30-12-1998 the accused telephonically called the complainant at his office and when he (complainant) met him at 1.00 p.m. in his office, accused interrogated with him and told that he should not have brought his wife at his residence as the transaction of bribe cannot be finalized in presence of a lady. Thereafter, on 30-12-1998 the accused telephonically called the complainant at his office and when he (complainant) met him at 1.00 p.m. in his office, accused interrogated with him and told that he should not have brought his wife at his residence as the transaction of bribe cannot be finalized in presence of a lady. It is the further case of the prosecution that accused made a demand of bribe of Rs. 10,000/- to close the complaint filed against him. On making the demand of illegal gratification, the complainant stated that he is not discharging any illegal activities and therefore he will not give any illegal gratification. On this, the accused pacified him that when the raid will be made, the entire family members of the complainant will be in tense and in order to get rid of such a stressful condition, at least a sum of Rs. 7,500/- should be given, otherwise he will send the relevant file to Bhopal. As per the case of the prosecution accused also told that the amount of Rs. 7,500/- be divided in two installments and in the first installment a sum of Rs. 5,000/- be paid while remaining amount of Rs. 2500/- should be paid in the second installment. Since, the complainant was not keen enough to give any bribe and was desirous to get the deceased-appellant caught red-handed, he submitted a written complaint in the office of Special Police Establishment on 31-12-1998. 3. On receiving the written complaint of the complainant, the Superintendent of Police called Dy.S.P. Suresh Singh Chouhan and directed him that the authenticity of complaint be examined and if the hallmark of complaint is found to be proven, a case be registered. Eventually, said Dy.S.P. Suresh Singh Chouhan prepared a panchnama of handing over a tape recorder to the complainant and instructed him to record the conversation which will take place between him and accused in respect of making of demand of bribe. On the next day i.e. on 1-1-1999 complainant along with tape recorder came back to the office of Special Police Establishment and submitted another complaint that the amount of bribe is settled and the same is to be given in installments. According to complainant, in the first installment a sum of Rs. 2500/- was to be given. On the basis of this complaint, an FIR was registered and panch witnesses were summoned. According to complainant, in the first installment a sum of Rs. 2500/- was to be given. On the basis of this complaint, an FIR was registered and panch witnesses were summoned. Thereafter, at 12 O'clock in the afternoon one Prem Singh Sikarwar, Assistant Excise Officer on being summoned arrived in the office of Special Police Establishment where Dy.S.P. Suresh Singh Chouhan prepared a preliminary panchnama. Firstly, the tape recorded version was tested and after hearing the tape recorded conversation which took place between the complainant and accused, the panch witness Prem Singh read over the complaint to the complainant and after hearing the contents thereof, he (complainant) admitted its contents. 4. Thereafter, on submitting five currency notes having denomination of Rs. 500/- each (in total Rs. 2500/-) by the complainant, their numbers were noted down and they were treated by the phenolphthalein powder and after taking search of all the pockets of complainant, the treated currency notes were kept in his pocket and he was directed that before passing over the treated currency notes to the accused/appellant, he should not come in contact with the treated currency notes nor should he shake hands with the accused. 5. A pre-trap panchnama was prepared in which the details of treated currency notes were noted down and thereafter a demonstration of changing of colour of the solution of Sodium Carbonate on coming into contact with phenolphthalein powder was shown. Thereafter, the trap party including panch witnesses and the complainant went to the office premises of the deceased-appellant where complainant was sent to tender the bribe. On receiving the signal from the complainant, the Inspectors who were members of trap party, caught hold of the hands of deceased-appellant from the wrists and thereafter on being inquired from him, it was told that bribe money is kept in the pocket of his coat. It is the further case of the prosecution that hands of panch witness Prem Singh were subjected to phenolphthalein powder test but on dipping the fingers of his palm, the colour of solution was not changed, the un-tinted hand wash was preserved in a sealed bottle. Thereafter, the fingers of the hands of deceased-appellant were subjected to phenolphthalein powder test which was found to be positive and the tinted hand wash was preserved in a separate sealed bottle. Thereafter, the fingers of the hands of deceased-appellant were subjected to phenolphthalein powder test which was found to be positive and the tinted hand wash was preserved in a separate sealed bottle. The same chemical test was again conducted on the fingers of the hands of Panch witness Prem Singh after taking out the treated currency notes by him from the pocket of deceased-appellant and on dipping the fingers the colour of chemical solution changed to pink colour which was collected and sealed in a separate bottle. A post-trap Panchnama was also prepared. 6. The investigating agency thereafter completed the investigation and after receiving the requisite sanction from the State Government to prosecute, submitted a charge-sheet before learned Special Judge who framed charges punishable under sections 7, 13(1)(d) read with section 13(2) of the Act which the appellant denied and requested for the trial. 7. In order to bring home the charges, prosecution examined as many as 6 witnesses and placed Ex.P-1 to Ex.P-35, the documents on record. The defence of the appellant is that he was becoming an eyesore to his colleagues as his name was at the top of the list of promotion and therefore a foul game has been played on the instructions of his colleagues so that he may not be promoted and his entire career may be ruined. It is the further defence of accused/appellant that at the relevant point of time since it was lunch hour, as usual, he went to the chamber of Deputy Commissioner, Commercial Tax to have a cup of tea with him. Taking the advantage of his absence, under the false pretext and fake excuse, the complainant managed to enter inside the chamber of deceased-appellant after taking permission from his peon, where he saw his coat hanging on his office chair and secretly he kept the treated currency notes in absence and in the knowledge of the appellant. In order to prove his defence the appellant examined Ramesh Holkar (DW4) who was serving on the post of Peon so as to prove the fact that in the absence of deceased-appellant, the complainant entered inside his chamber. Certain other witnesses were also examined by the deceased-appellant in his defence. 8. In order to prove his defence the appellant examined Ramesh Holkar (DW4) who was serving on the post of Peon so as to prove the fact that in the absence of deceased-appellant, the complainant entered inside his chamber. Certain other witnesses were also examined by the deceased-appellant in his defence. 8. The learned Special Judge on the basis of evidence placed on record came to hold that the charges are proved and eventually convicted the deceased-appellant and passed the sentence which we have already mentioned hereinabove. 9. In this manner this appeal has been filed by the deceased-appellant assailing the judgment of conviction and order of sentence. 10. It has been contended by Shri Jai Singh, learned Senior Counsel for the appellants that in the present case neither there was any motive or deceased-appellant was having any occasion to make demand of bribe nor by the evidence which has been led it has been proved that deceased-appellant has made any demand of bribe. It has also been put-forth by learned Senior Counsel that the treated currency notes were kept secretly in his coat hanging on the chair of his chamber and he was not aware that in his coat the treated currency notes are kept and in this regard learned counsel has invited our attention to the testimony of complainant (PW1). Learned Senior Counsel submits that instead of making inquiry from the accused that where the bribe amount has been kept, this question was put to complainant, this itself shows that deceased-appellant was not aware that his coat is containing the treated currency notes. 11. It has also been propounded by learned Senior Counsel that as per the prosecution's own case the office of deceased-appellant is situated at the first floor of the building while the members of trap party were standing on the ground floor and the complainant alone went on the first floor without he being accompanied by any surveillance witness. Hence, according to learned Senior Counsel there was sufficient occasion for complainant to come in contact with the treated currency notes before handing over them to the deceased-appellant and it has come in the evidence that when complainant met with the appellant, firstly complainant shook his hand and therefore trap cannot be said to be a successful trap. Hence, according to learned Senior Counsel there was sufficient occasion for complainant to come in contact with the treated currency notes before handing over them to the deceased-appellant and it has come in the evidence that when complainant met with the appellant, firstly complainant shook his hand and therefore trap cannot be said to be a successful trap. It has also been argued by him that the probable defence of the appellant has been proven by examining the defence witnesses including Ramesh Holkar (DW4) who was serving on the post of Peon and who has categorically stated in his testimony that in the absence of appellant when he had gone to have a cup of tea with his Senior Officer, during the lunch hours, the complainant under the false pretext and giving some lame excuses managed to enter inside the chamber of the deceased-appellant. Hence, it has been submitted by learned Senior Counsel that because the probable defence has been proved, the learned Trial Court should have paid heed to it instead of disagreeing with the said defence. 12. Much stress has been made during the course of arguments by learned Senior Counsel that in the present case the prosecution has not examined the material witnesses. According to him, two Inspectors namely Shri Ashok Singh Solanki and Shri S. K. Shrivastava who caught hold the hands of the appellant after he obtained the bribe money, for the best reason known to prosecution, were not examined. Similarly, according to learned Senior Counsel the son of complainant, who accompanied the complainant when he went to give the bribe, has also not been examined and therefore adverse inference should be drawn against the prosecution. On these premised submissions, it has been put-forth by learned Senior Counsel that since the prosecution has utterly failed to prove the charges, this appeal be allowed by setting aside the impugned judgment and deceased-appellant be acquitted from all the charges. 13. On the other hand Shri L. N. Soni, learned Senior Counsel/Public Prosecutor argued in support of the impugned judgment and submitted that in the present case by adducing clear, cogent and trustworthy evidence, the prosecution has proved all the ingredients to prove the aforesaid charges. 13. On the other hand Shri L. N. Soni, learned Senior Counsel/Public Prosecutor argued in support of the impugned judgment and submitted that in the present case by adducing clear, cogent and trustworthy evidence, the prosecution has proved all the ingredients to prove the aforesaid charges. By inviting my attention to testimony of panch witness Prem Singh Sikarwar (PW4) it has been contended that since this independent witness is saying that inquiry was made from the appellant where he has kept the bribe money and because it was also recovered from his possession and further because his testimony is corroborated by the testimony of Dy. S.P. Suresh Singh Chouhan, therefore, the ingredients of section 7 of the Act are proved. According to learned Public Prosecutor not only the motive to make the demand of bribe is proved but prosecution has also successfully proved that a demand of bribe was made and it was accepted by the deceased-appellant and hence learned Special Judge has not committed any illegality in convicting him. Learned Public Prosecutor submitted that since the bribe money has been recovered from the possession of the deceased-appellant, therefore, the statutory presumption under section 20 of the Act that accused has obtained the bribe will come into play. On these premised submissions, it has been submitted that learned Special Court has not committed any illegality in convicting the appellant. 14. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 15. During the pendency of this appeal, accused had died and the appellants are brought on record and permission has been granted to them to prosecute the appeal. 16. In order to prove the charges punishable under section 7 and 13(1)(d) of the Act the prosecution is obliged to prove that there was a motive and occasion for complainant to make the demand of bribe and the bribe was also accepted by the accused. In order to testify that these ingredients are proved, we shall examine the evidence of the prosecution as well as the witnesses examined by the defence. The complainant Kailash Gurwani (PW3) although has categorically stated that a demand of bribe was made by the deceased-appellant and therefore he submitted a complaint against him and in order to give positive result to his complaint a trap was arranged. The complainant Kailash Gurwani (PW3) although has categorically stated that a demand of bribe was made by the deceased-appellant and therefore he submitted a complaint against him and in order to give positive result to his complaint a trap was arranged. The treated currency notes were kept in his pocket and he was given direction that he should not come in contact with these treated currency notes unless and until a demand of bribe is made by the appellant. On bare perusal of testimony of this witness, it is gathered that the members of the trap party were standing on the ground floor nearby the office building which is on the first floor, while the complainant along with his son (not examined) went to the office of appellant at first floor where transaction of bribe took place. According to us, as per the prosecution's own case, the complainant and the interested witness his son (not examined) went without being accompanied by any of the members of the trap party and therefore one can infer that there was a sufficient time for the complainant to come in contact with the treated currency notes which he was possessing before handing over them to appellant. In this context para 46 of cross-examination of the complainant may be seen where he has put his inability to say that he was accompanied by the members of trap party or not. However, on being further cross-examined, the truth came out from his mouth that no member of trap party accompanied him. Hence from his testimony only it is proved that no member of trap party including the independent panch witness Prem Singh Sikarwar (PW4) was accompanying him. Further complainant has stated that to give the signal to the members of trap, he alighted from first floor and gave signal that transaction of bribe has taken place, hence it can be inferred that since complainant did not go along with any of the members of the trap party, he was having sufficient occasion to come into contact with currency notes before giving to appellant and therefore if lateron he will shake hand with complainant certainly particles of phenolphthalein powder will fall on his palm and if thereafter the fingers of the hands of appellant would be dipped in the solution of sodium carbonate, certainly its colour would change to pink. 17. 17. According to us, presence of surveillance witness or we may say shadow witness is very much essential because what actually transpired at the time of transaction of bribe it is very much material. In this context much has been said by the Supreme Court Smt. Meena Balwant Hemke vs. State of Maharashtra, AIR 2000 SC 3377 in para 9 and we would like to apt to quote the relevant portion which reads thus; "......... The question is as to whether the appellant accepted it and placed it on the table or that the currency note fell on the pad on the table in the process of the appellant refusing to receive the same by pushing away the hands of PW-1 and the currency, when attempted to be thrust into her hands. PW-2, one of the panch witnesses, who accompanied PW-1, as a shadow witness, when he tried to give the bribe, did not support the prosecution case. He has been treated hostile and his evidence eschewed from consideration by the Courts below. The lady Constable, Victoria, another shadow witness, who first arrived on the spot after the signal was given by PW-1, was not examined at the trial. Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. (emphasis supplied) Further in the same para the Supreme Court has held that :- ......The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. In the present case this important link is totally missing and indeed prosecution was obliged to prove that what actually transpired between the complainant and the deceased-appellant at the time of passing over the alleged bribe money by examining independent witness. The prosecution has not even examined the son of the complainant, who according to complainant, accompanied him to the chamber of the office of appellant, where the transaction of bribe took place. 18. It is the case of prosecution that all the members of the trap party were standing on the ground floor of the office complex and in this regard Ex.P/15 site-plan may be seen. At this juncture, we would also like to scan the testimony of Dy. 18. It is the case of prosecution that all the members of the trap party were standing on the ground floor of the office complex and in this regard Ex.P/15 site-plan may be seen. At this juncture, we would also like to scan the testimony of Dy. S.P. Suresh Singh Chouhan (PW5) para 30 in which he has categorically stated that the places are shown in the site map where the members of trap party were standing. Further he has categorically admitted that from the place where the members of trap party were standing what conversation took place between the complainant and appellant could not be heard nor any scene of giving and taking the bribe was visible. Hence, according to us, this important link that what actually transpired between the complainant and deceased-appellant, is totally missing in order to connect the appellant in the alleged offence. 19. Although it has been stated in cross-examination by the complainant in para 47 that he shook his hand with the appellant and at that time the bribe money was also handed over by extending the new year wishes and suggestion put in defence has been denied that before handing over money, he shook his hands. But in the written statement/memorandum of accused submitted at the time of recording the statement under section 313 of Criminal Procedure Code, defence has been taken that on the new year's day of 1999 during the lunch period the appellant went to have a cup of tea in the chamber of D.C. (Deputy Commissioner) at that juncture appellant put-off his coat and hung the same on the office chair of his chamber. In his absence, the complainant managed to enter inside his chamber under the false pretext to have a phone-call after taking permission from the peon and thereafter complainant came out from his chamber and shook his hand with the appellant. 20. In order to prove his probable defence, the appellant has examined the Peon Ramesh Holkar (DW4), who has categorically stated in his testimony that during lunch-hour the appellant came out from his chamber and went to the chamber of Dy. Commissioner where his coat was hanging on the office chair of his chamber. Thereafter, the complainant came at about 1.45 p.m. and inquired about the appellant and this witness told that he had gone to take tea along with his senior officer. Commissioner where his coat was hanging on the office chair of his chamber. Thereafter, the complainant came at about 1.45 p.m. and inquired about the appellant and this witness told that he had gone to take tea along with his senior officer. Thereafter this witness has stated that the complainant requested him that he has to use the telephone which was inside the chamber of the appellant and under this false pretext, he entered inside the chamber while this witness was sitting outside the chamber on a stool. It has also come in his testimony that though doors of the chamber were open but curtains were drawn on the doors and after 2-3 minutes the complainant came out of the chamber. Hence the defence which has been taken by the appellant that in his absence the complainant entered inside his chamber and kept the treated currency notes in his coat which was hanging on his chair secretly. At this juncture, we would like to state that law in this regard is very clear that an accused is not required to prove his defence with the same standard of proof as that of prosecution because the prosecution is obliged to prove its case beyond a reasonable doubt while the accused is only required to show that his defence is probable and is proved from the evidence and other circumstances. In this context judgment of Supreme Court Punjabrao vs. State of Maharashtra, AIR 2002 SC 486 may be seen and therefore according to us the deceased-appellant has proved his probable defence. 21. At this juncture, we may further add that Supreme Court in Munshi Prasad and others vs. State of Bihar, AIR 2001 SC 3031 and State of Haryana vs. Ram Singh, AIR 2002 SC 620 has held that status of defence witness is at par with that of prosecution witnesses and their testimony should not be thrown out merely on the basis that they have been examined by the defence. 22. 22. The deceased-appellant is innocent, this should be visualized from this angle also that he was not aware that treated currency notes have been kept in the pocket of his coat in his absence, because complainant himself has admitted in para 6 of his examination-in-chief that after the transaction of bribe, when the members of trap party entered inside the chamber of the appellant, the question was put to the complainant that where the treated currency notes are kept. Indeed, this question should have been put to the deceased-appellant and therefore it indicates that appellant was not aware that in his absence the bribe money have been kept in the pocket of his coat secretly. True, the evidence of panch witness is that inquiry was made from the appellant but in para 14 of his cross-examination he (panch witness Prem Singh PW4) has categorically stated that when the hands of the appellant were caught by the Inspectors (not examined) the appellant was saying that he has been falsely implicated. Further this witness has put his inability as he did not remember whether appellant was saying that he has not taken any bribe and further whether it was asked by the investigating officer from complainant Gurwani that where bribe money has been kept, he (complainant) told that it is kept in the pocket of the coat of the appellant. This witness has also put his inability to answer that appellant at that juncture told that he had gone during lunch hours out of his chamber and his coat was hanging on his office chair and was further saying that in his absence the complainant has played the foul game. Therefore, according to us on examining the testimony of these two witnesses (complainant and independent panch witness) vis-a-vis to each other, the probable defence which has been taken by the appellant appears to be correct. On the material point, the independent panch witness is not certain and he did not remember the material facts. At the cost of repetition, we may say that since the complainant was not accompanied by any independent witness to the office of the deceased-appellant and his testimony is not corroborated by independent witness, it is difficult to hold that appellant made a demand of bribe and accepted the same. 23. At the cost of repetition, we may say that since the complainant was not accompanied by any independent witness to the office of the deceased-appellant and his testimony is not corroborated by independent witness, it is difficult to hold that appellant made a demand of bribe and accepted the same. 23. It is well settled in law that the position of complainant is that of an accomplice and therefore in the absence of his unimpeachable and trustworthy evidence, it would be hazardous to place reliance on his sole testimony. The Supreme Court in catena of decisions has held that statement of accomplice should always be corroborated by material evidence. In this context, Francis Stanly alias Stalin vs. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram (2006) 13 SCC 210 may be seen. The other decisions of the Supreme Court on this point are Lachman Dass vs. State of Punjab, AIR 1970 SC 450 ; Darshan Lal vs. The Delhi Administration, AIR 1974 SC 218 and Panalal Damodar Rathi vs. State of Maharashtra, AIR 1979 SC 1191 . 24. We are unable to accept the contention of learned Public Prosecutor that since the bribe money has been recovered from the possession of the deceased-appellant, therefore, under section 20 of the Act statutory presumption would be drawn that he made the demand of bribe and accepted the same. According to us, the initial burden of making demand of bribe and accepting the same is on the prosecution and if the prosecution has successfully discharged this burden then only the onus would shift on the accused/appellant and then only the statutory presumption taking the bribe by the accused would come into play. In this context the decisions of Supreme Court Om Prakash vs. State of Haryana (2006) 2 SCC 250 and T. Subramanian vs. State of T. N., (2006)1 SCC 401 and Ganga Kumar Srivastava vs. State of Bihar, (2005) 6 SCC 211 may be seen. Recent pronouncement of Supreme Court Banarsi Dass vs. State of Haryana, (2010) 4 SCC 450 para 19 and 20 may also be seen. Recent pronouncement of Supreme Court Banarsi Dass vs. State of Haryana, (2010) 4 SCC 450 para 19 and 20 may also be seen. Since we have already held hereinabove that what actually transpired between the complainant and deceased-appellant is a mystery and there is no cogent evidence of the prosecution in this regard, according to us, because the prosecution has failed to discharge its initial burden of proof, section 20 in the peculiar facts and circumstances would not be applicable. 25. We are not agreeing with the submission of learned Public Prosecutor that for sections 7 and 13(1)(d) of the Act motive is totally insignificant but one important fact which cannot be marginalized and blinked away is that the prosecution is obliged to prove initial burden. Since we have already held hereinabove that there is no cogent evidence in this regard, the contention of learned Public Prosecutor cannot be accepted. 26. For the reasons stated hereinabove, we are unable to uphold the impugned judgment of conviction and order of sentence passed by the learned Special Judge. Resultantly, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by learned Special Judge convicting the appellant under sections 7, 13(1)(d) read with section 13(2) of the Act is hereby set aside and he is acquitted from all the charges. The amount of fine if deposited be refunded to appellants.