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2012 DIGILAW 174 (MP)

Subhashchandra Joshi v. State of M. P.

2012-02-07

A.K.SHRIVASTAVA, S.R.WAGHMARE

body2012
JUDGMENT Shrivastava, J. – 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 29.8.2001 passed by learned Special Judge Dewas in Special Case No.2/2000 convicting the appellant under sections 7, 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short the Act) and thereby sentencing him to suffer one year R.I. and fine Rs.2,000/-, in default, further R.I. of four months, the appellant has knocked the doors of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that Vikramsingh (hereinafter referred to as the complainant) submitted a written complaint in the Lokayukta Office at Ujjain that appellant who at the relevant point of time was serving on the post of Head Constable in Police Station Pipalrawan District Dewas is making demand of bribe because a case has been registered in the said police station against the complainant and his three brothers namely Daulu, Mohan and Mansingh which is being investigated by appellant serving on the post of Head Constable. On 11.7.1999 appellant came in the village of the complainant and by informing about the case which has been registered against him and his brothers asked all the four accused persons including the complainant to come at police station and expenses of Rs.4,000/- would come and directed them to bring this amount. On this, complainant requested that appellant is asking an exorbitant amount and after bargaining the amount of expenses it was settled for Rs.1,500/- and it was directed by the appellant to come with this amount so that complainant and his brothers may be released on bail. Further, it was also warned and threat was given by the appellant that in case Rs.1,500/- is not paid, the complainant and his brothers would be sent to jail. 3. It is further case of prosecution that since complainant was not keen enough to give any bribe to the appellant and was desirous to caught him red handed, he submitted a written complaint in the office of the Special Police Establishment at Ujjain in which it was also mentioned that appellant is making demand of bribe of Rs.1,500/- to enlarge the complainant as well as his brothers on bail. 4. 4. On receiving the said complaint, the Officers of the Lokayukta Office handed over a tape recorder to the complainant with a direction how to operate it and further gave direction that the conversation of bribe may be recorded in the cassette inserted in the tape recorder. Eventually, the complainant approached appellant and tape recorded the conversation which took place in between him and the appellant and it is said that in the said conversation because the demand of bribe was also made by the appellant it was recorded in the cassette. 5. A case was registered against the appellant in the office of the Special Police Establishment and a scheme of trap was prepared. The Officer of the Special Police Establishment summoned two Gazetted Officers and to whom the written complaint of the complainant was handed over and the Gazetted Officer read over the complaint to the complainant and after hearing the contents thereof the complainant accepted that he submitted such type of complaint. Thereafter on submitting 30 currency notes having denomination of Rs.50/- each by the complainant, the peon Mangilal of the Special Police Establishment applied Phenolphthalein powder on them and it was kept in the pocket of the complainant. The Officers of the Special Police Establishment explained the complainant that before handing over the bribe money to the appellant he should not come in contact with the treated currency notes and on making demand of bribe the treated currency notes be handed over to the appellant and after the transaction of bribe is taken place he will rub his hand on his head which would be a signal to the members of the trap party that the transaction of bribe had taken place. 6. It is further case of prosecution that members of the trap party proceeded in two official vehicles to the police station where the appellant was posted and nearby the police station, the vehicles were stationed and the members of the trap party took their convenient position around the police station. 6. It is further case of prosecution that members of the trap party proceeded in two official vehicles to the police station where the appellant was posted and nearby the police station, the vehicles were stationed and the members of the trap party took their convenient position around the police station. The complainant was sent inside the police station to give the bribe money to the appellant and on seeing the complainant, appellant asked whether he has brought the money and nodding his head and giving answer in affirmativge he (complainant) took out treated currency notes from his pocket and handed over the same to the appellant which was firstly counted by appellant and thereafter they were kept in the pocket of his trousers and ultimately they were kept by appellant in his bag. Immediately after transaction of bribe took place, the complainant came out from the police station and gave signal to the members of the trap party resultantly, Head Constables Nirpatlal Choudhary and V.K. Jain caught hold the hands of the appellant from the wrist. 7. It is further case of prosecution that the members of the trap party introduced themselves and on being asked where the bribe money has been kept by the appellant it was told by him that the same has been kept in his bag. Thereafter the panch witness B.S. Malviya was asked by the Investigating Officer to open the bag and to take out the bribe money from it. Eventually the said panch witness opened the bag and took out the treated currency notes from it. Their numbers were tallied with the pre-trap panchnama and they were found to be the same. Thereafter the fingers of the hands of panch witness were dipped in a fresh prepared solution of sodium carbonate and on dipping the fingers in the said solution its colour changed to pink. Thereafter a fresh solution of sodium carbonate was prepared and in that solution the fingers of the hands of appellant were dipped and on dipping his fingers, the phenolphthalein powder test was found to be positive. The similar chemical test of phenolphthalein powder was conducted on the fingers of the hands of the complainant and the result was found to be positive. The tinted hand wash of panch witness, appellant and complainant was collected in separate bottles and they were sealed. These bottles were sent for chemical analysis. The similar chemical test of phenolphthalein powder was conducted on the fingers of the hands of the complainant and the result was found to be positive. The tinted hand wash of panch witness, appellant and complainant was collected in separate bottles and they were sealed. These bottles were sent for chemical analysis. After the investigation was over, a charge-sheet was submitted before learned Special Judge who framed charges punishable under section 7, 13(1)(d)/13(2) of the Act which appellant denied and requested for the trial. 8. In order to bring home the charges, the prosecution examined as many as 10 witnesses and placed Ex.P-1 to P-17 the documents on record. 9. The defence of the appellant is that because a case has been registered against the complainant and his brothers, it made annoyance to them and to take out the revenge he has been falsely implicated. In support of his defence appellant examined three witnesses they are Jagdish Chandra (DW1) who is a priave doctor, Mahesh Chandra (DW2) who is a press reporter and Constable Prem Singh (DW3). The further defence of appellant is that on the date of trap he was suffering from loose motions and Dr. Jagdish Chandra (DW1) advised him to take tablets of Pargolx. The prescription is Ex.D-2 and at the time of trap the tablets of Pargolx were openly kept in the pocket and appellant happened to come in contact with these tablets frequently and, therefore, when his palms were dipped in the solution of sodium carbonate, its colour changed to pink, because these tablets contain the phenolphthalein. 10. The learned trial Judge on the basis of evidence placed on record came to hold that the charges under section 7, 13(1)(d)/13(2) of the Act are proved against the appellant and eventually convicted him and passed the sentence which we have mentioned hereinabove. 11. In this manner this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 12. In his usual vehemence Shri Dave, learned counsel appearing for the appellant submits that since a criminal case was registered against the complainant and his brothers which was being investigated by the appellant, certainly they became annoyed and in order to take out revenge the complainant played this foul game so that the official career of the appellant may be ruined. Learned counsel submits that complainant took advise from Gangaram as it appears from his testimony and on his advise he submitted report and, therefore, this cannot be ruled out that in order to take revenge from the appellant a false complaint has been lodged. 13. Further it has been contended by learned counsel that the bargaining of the bribe money had taken place before Gangaram but Gangaram who has been examined by prosecution as PW5 has not corroborated the testimony of the complainant and was declared hostile and, therefore, story put forth by the prosecution that bargaining took place and the matter was settled for Rs.1,500/- is not at all proved. 14. By putting a deep dent on the phenolphthalein powder test which was found to be positive after the alleged trap was over, it has been contended by learned counsel that since appellant was facing loose motions on the date of trap and he was consuming Pargolx tablets in which phenolphthalein powder is used and further because these tablets were lying open in the pocket of the trousers of the appellant, therefore, repeatedly appellant must be coming in contact with these tablets and if thereafter the phenolphthalein powder test would be conducted on his fingers, certainly positive result will come, and, therefore, the credential value of phenolphthalein powder test looses its significance. Hence, it has been contended by learned counsel that the matter should be visualized from reverse angle that complainant was having motive to rope the appellant falsely because a case was registered against him and his brothers which was being investigated by the appellant and in order to satisfy his revenge, this foul game has been played against him. Hence, it has been prayed that by allowing this appeal, the impugned judgment be set aside and the appellant be acquitted from all the charges. 15. On the other hand, Shri Soni, learned Public Prosecutor submits that in the present case all the ingredients which are to be proved by the prosecution viz. motive, demand of bribe and its acceptance are proved from the testimony of the complainant which is also corroborated by the testimony of the panch witness and further the bribe money was also recovered from the possession of the appellant and because no satisfactory explanation has been given by the appellant, it shall be presumed that appellant made demand of bribe and accepted the same. Learned Public Prosecutor submits that cogent reasons have been assigned by learned trial Judge convicting the appellant and there is no need to interfere either on the merit or on the sentence part and this appeal be dismissed. 16. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be dismissed. 17. Rightly it has been put forth by learned Public Prosecutor that in order to bring an accused within the clutches of section 7, 13(1)(d) of the Act initial burden is on the prosecution to prove that there was a motive or we may say, there was an occasion for the accused to make demand of bribe and there must be evidence that he has accepted the same. How far as these three essential ingredients are proved we shall now examine and marshal the testimony of the complainant vis-a-vis to the other witnesses. 18. In the present case complainant Vikram Singh has been examined as (PW2) and his complaint is Ex.P-3. Out of two independent panch witnesses, B.S. Malviya (Executive Engineer) has been examined as PW3. Head Constable Nirpatlal Choudhary who caught hold the hands of the appellant along with another Head Constable Vimal Chand Jain was examined as PW8. Although another Head Constable Vimal Chand Jain has not been examined by the prosecution. The other important witnesses are Inspector R.L. Bachane (PW9) and Inspector Rajendra Singh Bhadoriya (PW10). 19. On bare perusal of the testimony of the complainant Vikram Singh (PW2) it is gathered that because a case was registered against him and his brothers on a report lodged by their uncle Shankar in the police station, appellant who was serving on the post of Head Constable came in the village for enquiry and asked appellant to give bribe of Rs.4,000/- so that he and his brothers may be bailed out. But on the insistence of appellant the matter was settled for Rs.1,500/-. The appellant further told complainant to bring this money in the police station. This witness thereafter lodged a written complaint in Lokayukt Office at Ujjain and submitted a written report written in his hand writing and also told that appellant is making demand of bribe of Rs.1,500/-. But on the insistence of appellant the matter was settled for Rs.1,500/-. The appellant further told complainant to bring this money in the police station. This witness thereafter lodged a written complaint in Lokayukt Office at Ujjain and submitted a written report written in his hand writing and also told that appellant is making demand of bribe of Rs.1,500/-. Thereafter the Officers of the Lokayukt Office handed over a tape recorder to him with a direction that he should tape record the conversation of bribe as a result of which, again complainant went to approach the appellant who asked whether he has brought the money and when the complainant answered in negative he hurled abuses to him and further gave threat that if the amount of bribe is not paid, the complainant as well as his brothers would be arrested.This witness handed over the tape recorder as well as the cassette containing the tape recorded version in which demand of bribe was made by the appellant in the Office of Special Police Establishment. Thereafter he was introduced by some Officers to whom he told his name etc. Thereafter in their presence the tape recorder was played and a script was noted down. 20. We are not accepting the electronic evidence i.e. tape recorded version of demand of alleged bribe made by the appellant because there is no evidence that the voice recorded in the cassette of tape recorder is of appellant and complainant. 21. Further complainant says that on submitting 30 currency notes of Rs.50/- each the employee of the Lokayukt Office applied powder on them and the said employee Mangilal by keeping the treated currency notes in the left pocket of his shirt explained that complainant should not come in the contact with treated currency notes before handing over them to the appellant. Thereafter the pre-demonstration of change of colour of sodium carbonate on coming into contact with phenolphthalein powder test was conducted on the fingers of the hands of said Mangilal. According to this witness in two official jeeps the members of the trap party including him proceeded to the police station and nearby the police station the members of trap party took their position and complainant was sent to give the bribe to the appellant in the police station. According to this witness in two official jeeps the members of the trap party including him proceeded to the police station and nearby the police station the members of trap party took their position and complainant was sent to give the bribe to the appellant in the police station. On seeing the complainant, appellant asked whether he (complainant) has brought the money with him and when he answered in the affirmative and handed over the treated currency notes to the appellant, he (appellant) after counting them kept in his pocket.Thereafter this witness rubbed his hand on his head which was a signal to the members of the trap party that the transaction of bribe has taken place and further he chased the appellant who was going on the rear side of the police station where the appellant after taking out the treated currency notes from his pocket kept them in a bag. At that juncture, the members of the trap party entered inside the police station and Head Constable Nirpatlal Choudhary (PW7) and V.K. Jain caught hold the hands of the appellant from the wrist. 22. Further statement of complainant is that the phenolphthalein powder test which was conducted on the fingers of the appellant, complainant himself and on the fingers of the independent panch witness B.S. Malviya (PW3) after he took out the bribe money from the bag of the appellant, positive result came out. This witness was cross-examined at length but nothing has been carved out in order to draw any inference that he is concealing the reality and not saying the truth. On the other hand, we find that his testimony is clear, cogent and trust worthy and if we visualize his testimony from all the angles, the only inference which has been carved out by his direct evidence is that appellant was having motive to make demand of bribe because a criminal case was registered against him and his brothers which was being investigated by the appellant and, therefore, there was a motive on the part of the appellant to make demand of bribe. It has also come in the testimony of complainant that in the complaint Ex.P-3 which is in his own hand writing it has been mentioned that appellant is making demand of bribe of Rs.1,500/- to release him and brothers on bail and further before the trap, on seeing the complainant appellant asked him whether he has brought the money and on giving answer in affirmative by the complainant he handed over the bribe money to appellant which was counted by him and thereafter it was kept in his pocket. Thus, from the testimony of complainant the motive part, as well as demand of bribe made by the appellant and its acceptance has been emphatically proved. 23. True the status of appellant is that of an accomplice but under section 133 of the Evidence Act an accomplice shall be a competent witness against an accused and the conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Although under section 114 illustration (b) an accomplice is unworthy of credit, unless he is corroborated in material particulars, hence, right from very beginning the law has been developed that it is always fruitful to have corroboration of the testimony of an accomplice although there is no absolute bar and conviction cannot be said to be bad in law if it is based on the sole testimony of the accomplice as envisaged under section 133 of the Evidence Act. In this context we may profitably place reliance on M.O. Shamsudhin v. State of Kerala [ (1995)3 SCC 351 ]. However, the present case is rather on better footings because there is independent corroboration of the testimony of the accomplice (complainant) and his testimony is corroborated by independent panch witness B.L. Malviya (PW3). 24. If we marshal the testimony of independent panch witness (PW3) and keep his testimony in juxtaposition to the testimony of the complainant and by considering both the testimonies viz-a-viz to each other, we find that the evidence of complainant is fully corroborated by the testimony of independent panch witness because this panch witness is also saying that on being asked by him from the complainant it was told that appellant is making demand of bribe of Rs.1,500/- because a case has been registered against the complainant and his brothers and to bail out them, the said demand is being made. Not only this, this independent panch witness has also corroborated the testimony of the complainant in respect to phenolphthalein powder test also because according to the complainant firstly bribe money was kept in the pocket of the trousers by the appellant after counting them, and thereafter appellant went on the rear side of the police station and kept those treated currency notes in the bag and from the bag, the bribe money was recovered and their numbers were also found to be the same on being tallied with pre-trap panchnama. The evidence of complainant in respect of phenolphthalein powder test has also been corroborated by this independent panch witness because he too says that the phenolphthalein powder test was conducted separately on appellant, complainant and this panch witness and the result was found to be positive. 25. The bribe money was also seized from the possession of appellant since it was found in his bag and the phenolphthalein powder test conducted on appellant was also found to be positive. In such a situation, section 20 of the Act is triggered and set in motion and it shall be presumed the appellant has made demand of bribe and has accepted the same because the prosecution has already proved its initial burden of demand of bribe and its acceptance by the appellant. In this context we may profitably place reliance on the decision of Supreme Court Girja Prasad v. State of M.P. [ (2007)7 SCC 625 ]. 26. Since the bribe money was recovered from the possession of the appellant, the ball is transferred to the Court of the appellant to give satisfactory explanation that how the bribe money has been received by him as envisaged under section 20 of the Act. The law is also well settled in this regard that if probable explanation has been given by the accused due weightage should be given to it and the standard of its proof should not be equated with that of prosecution where the prosecution is obliged to prove its case beyond all reasonable doubts. What at all is required by the accused is to prove his probable defence by leading cogent evidence. However, in the present case no cogent explanation has been given by the appellant. The defence which he has taken appears to be afterthought. What at all is required by the accused is to prove his probable defence by leading cogent evidence. However, in the present case no cogent explanation has been given by the appellant. The defence which he has taken appears to be afterthought. The further defence which the appellant has taken is that on the date of trap he was suffering from loose motions and the tablet Pergolx was prescribed by Dr. Jagdish Chandra (DW1) to him and on that date, those tablets were lying openly in his pocket and he was coming in contact with these tablets frequently and in that tablet one of the component is phenolphthalein powder, and therefore, when the chemical test was performed on the fingers of his hands; positive result was found. At the first blush the defence appeared to be quite attractive and probable but on deeper scrutiny, the same is found to be devoid of any substance and afterthought for the simple reason that no such defence was never put to the complainant or to any of the prosecution witnesses including the panch witness during their cross-examination. Further, if we deeply scrutinize the medical prescription Ex.D-2 given by defence witness Dr. Jagdish Chandra (DW1) it is gathered that the said prescription is dated 19.7.1999 which is a day after the trap had taken place on 18.7.1999 and, therefore, certainly this defence is an afterthought. Looking to the evidence placed on record, we are not impressed by the submission of learned counsel for appellant that the motive part should be applied in negative manner that the complainant has falsely implicated the appellant. The defence which the appellant has taken is not probable and it cannot be accepted and in this context we may rely on the decision of Supreme Court State of Maharasthtra v. Rashid B. Mulani [ (2006)1 SCC 407 ]. Since all the aforesaid three essential ingredients to constitute offence under section 7, 13(1)(d) are proved and further the bribe money has also been seized from the possession of appellant and the defence is not found to be probable we are not having any doubt in our mind the case of prosecution is proved. 27. Since all the aforesaid three essential ingredients to constitute offence under section 7, 13(1)(d) are proved and further the bribe money has also been seized from the possession of appellant and the defence is not found to be probable we are not having any doubt in our mind the case of prosecution is proved. 27. We have also gone through the reasonings assigned by learned Special Judge convicting the appellant and we find them to be quite cogent as it is based on correct appreciation of evidence and law and hence, by extending our stamp of approval to those reasonings and findings we hereby dismiss this appeal. We have also gone through the sentence part. The learned Special Judge has already taken the lenient view by passing the minimum sentence of one year and no further leniency looking to the mandate given in section 13(2) of the Act can be given. 28. Resultantly, this appeal fails and is, hereby, dismissed. The appellant is on bail, his bail bonds shall be cancelled on his offering his arrest before the learned Special Judge on or before 2.4.2012 failing which, the learned Special Judge shall issue perpetual arrest warrant against him and shall also take action against his surety and pass necessary order against surety. However, if appellant surrenders on or before 2.4.2012 before learned Special Judge, his bail bonds shall stand cancelled. The Registry is, hereby, directed to send the record posthaste to learned Special Judge so as to reach much prior to 2.4.2012.