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Madhya Pradesh High Court · body

2013 DIGILAW 1150 (MP)

Babulal Bijoria v. State of M. P.

2013-09-20

M.C.Garg, Shantanu Kemkar

body2013
JUDGMENT Kemkar, J. 1. The appellant feeling aggrieved by the judgment dated 7.3.2002 passed by the Special Judge (Prevention of Corruption Act, 1988) & 1st Additional Sessions Judge, Ujjain in Special Case No. 03/2000 whereby he has been convicted under sections 7 and 13 (1) (d) read with section 13 (2) of the Prevention of Corruption Act, 1988 (for short, the Act) and sentenced to suffer rigorous imprisonment for one year & fine of Rs. 1,000/- and rigorous imprisonment for two years & fine of Rs.1,000/-; on both counts with default clause of three months and six months rigorous imprisonment on each count respectively, has filed this appeal. 2. The prosecution case may be stated, as under: - At the relevant point of time, the appellant was working on the post of Assistant Estate Officer in MP Housing Board at Ujjain. Complainant Santosh Pandit (PW 1) was allotted a plot by the MP Housing Board. The complainant had deposited the entire price money of the plot allotted to him on 12.2.1999. After depositing the entire price amount, the registration of the plot was to be made by the Housing Board in his favour. However, in spite of repeated efforts being made by him by contacting and requesting the appellant, he did not process the file. Ultimately again on 1.7.1999, when the complainant met with the appellant for the purposes of registration of the sale-deed in his favour, the appellant demanded bribe of Rs. 1,500/- from him for processing the file for registration of the plot in his favour. The complainant was not willing to pay the bribe amount. He, therefore, made a complaint on 12.7.1999 Ex.P/1 to the Superintendent of Police, Lokayukta, Ujjain. In order to verify correctness of the complaint, Arun Kumar Samadhiya (PW-8) Inspector of Lokayukta handed over a tape recorder to the complainant to record the conversation between him and the appellant about demand of bribe. Nirpatlal (P-6) was sent with the complainant. The complainant recorded the conversation of the demand of bribe on the tape recorder. On the very same day, on the basis of the complaint Ex. P/1, the First Information Report Ex. P/34 was recorded and was sent for registration at Bhopal, which was registered as Ex. P/35. Nirpatlal (P-6) was sent with the complainant. The complainant recorded the conversation of the demand of bribe on the tape recorder. On the very same day, on the basis of the complaint Ex. P/1, the First Information Report Ex. P/34 was recorded and was sent for registration at Bhopal, which was registered as Ex. P/35. On 13.7.1999, letters were sent by the Superintendent of Police to depute Gazetted Officer for being included in the trap party in the capacity of panch witnesses. A.S. Sisodiya (PW 2) Deputy Director, Horticulture, Ujjain and J.N. Suryawanshi, Assistant Director, Agriculture, Ujjain were deputed as panch witnesses. They were introduced to the complainant and in the presence of them and the complainant, tape recorded version of the conversation between the appellant and the complainant was transcripted as Ex.P/3. 3. Thereafter, currency notes of Rs.1,500/- were given by the complainant. They were applied with phenolphthalein powder by the Peon. The currency notes were put in the pocket of the complainant, after conducting his search. On completion of further formalities, the trap party proceeded to the Office of the MP Housing Board at Bharatpuri, Ujjain. The complainant handed over the bribe amount to the appellant and made the signal to the trap party. Having received the signal, the constables of the trap party caught the appellant red-handed with the bribe amount. On the spot, fresh solution of sodium carbonate was prepared and the hand of the appellant was washed in that solution. On dipping his hand in the solution, the colour of the solution turned to pink. This confirmed his physical receipt of the tainted currency notes from the complainant. The said solution was collected in a separate bottle and was sealed. The file pertaining to allotment of plot to the complainant was also seized vide panchnama Ex. P/22. After completion of the investigation, sanction to prosecute the appellant was obtained and thereafter, charge-sheet was submitted before the learned Special Judge. 4. During the trial, the appellant abjured his guilt and took the defence that since the complainant did not raise the construction within the specified time, penalty for delay to the extent of Rs. 1,500/- was imposed upon him, as recorded in the note-sheet dated 5.7.1999. 4. During the trial, the appellant abjured his guilt and took the defence that since the complainant did not raise the construction within the specified time, penalty for delay to the extent of Rs. 1,500/- was imposed upon him, as recorded in the note-sheet dated 5.7.1999. The said amount of penalty was received from the complainant by his clerk Anil Mishra, and when it was handed over to him, the trap party reached and prepared a false case. 5. In order to prove charges, the prosecution examined as many as 9 witnesses. In defence, the appellant examined Anil Kumar Mishra (DW 1). The trial Court, after appreciation of evidence, convicted the appellant, as aforesaid. 6. We have heard learned counsel for the parties and perused the evidence on record and have gone through the impugned judgment. 7. Shri A. Siddiqui, learned counsel for the appellant has argued that the trial Court has not properly appreciated the evidence on record and has failed in not relying upon the defence set-up by the appellant to the effect that the amount of Rs. 1,500/- demanded from the complainant by the appellant was not the bribe amount, but was the amount of penalty, which was levy-able on the complainant for not raising the construction on the plot allotted to him within the stipulated period. He argued that the said amount, in fact, was deposited by the complainant, after raid was conducted, which establishes the fact that the amount of penalty was actually due from the complainant to be paid prior to the registration of plot in his favour. 8. Shri Arvind Gokhale, learned counsel appearing for the respondent, on the other hand, supported the impugned judgment passed by the trial Court and has argued that the trial Court has very elaborately dealt with this defence and has rightly concluded that the note-sheet dated 5.7.1999 about the penalty was actually a fabricated document prepared, after the raid was conducted, by the appellant to safeguard himself. Had that document (note-sheet) been on record, it would have been in the file seized at the time of trap. 9. It has not been disputed before the trial Court and before this Court that at the relevant point of time, the appellant was working as public servant on the post of Assistant Estate Officer in MP Housing Board. Had that document (note-sheet) been on record, it would have been in the file seized at the time of trap. 9. It has not been disputed before the trial Court and before this Court that at the relevant point of time, the appellant was working as public servant on the post of Assistant Estate Officer in MP Housing Board. Complainant Santosh Kumar Pandit (PW 1) has deposed that he had paid the entire price amount of the plot purchased by him from the MP Housing Board on 12.2.1999. After making the entire payment, he was repeatedly approaching the appellant for processing his file for registering the sale-deed in his favour. On 12.7.1999, in addition to the amount of Rs. 850/- for stamp, which was purchased by him, the appellant demanded from him Rs. 1,500/- as bribe amount for processing his file for registration of the plot in his favour. He further stated that as he was not willing to fulfill the demand of illegal gratification of Rs.1,500/- made by the appellant, he made the complaint Ex. P/1 to the Lokayukta Organization on 12.7.1999. He further stated that considering his complaint, he was handed over a tape recorder. He was also instructed how to operate the same. He took the tape recorder with him and with Nirpatlal (PW 6) went to the Office of the MP Housing Board. On meeting with the appellant, he reiterated his demand of Rs. 1,500/-. This conversation was recorded by him in the tape recorder. On 13.7.1999, on his reaching the Lokayukta Office, two independent witnesses were called. The panch witnesses asked him as to whether he had lodged the complaint Ex. P/1. Thereafter, he gave currency notes of Rs.1,500/-, the numbers of which were recorded by the panch witness Suryawanshi. He further supported the entire necessary steps taken by the prosecution regarding phenolphthalein test. The evidence of complainant (PW 1) is duly supported by the panch witness A.S. Sisodiya (PW 2). Arun Kumar Samadhiya (PW 8) and R.L. Bachhane (PW 9) had conducted the investigation for proving the entire process of trap. After due assessment of the evidence led by the prosecution as also the evidence of defence witness Anil Kumar Mishra (DW 1), the trial Court convicted the appellant, as aforesaid. 10. Arun Kumar Samadhiya (PW 8) and R.L. Bachhane (PW 9) had conducted the investigation for proving the entire process of trap. After due assessment of the evidence led by the prosecution as also the evidence of defence witness Anil Kumar Mishra (DW 1), the trial Court convicted the appellant, as aforesaid. 10. From the defence, which has been taken by the appellant, it appears that the appellant’s case is that the amount of Rs.1,500/- was given by the complainant to his colleague Anil Kumar Mishra (DW 1), who in turn handed over the said amount to the appellant and thereafter, the trap party raided and recovered the amount, which was not the bribe amount, but was the amount of penalty. In view of this defence, it has to be seen as to whether note-sheet Ex. P/25-A, which till the date of trap, was not even placed before the Competent Authority for imposing the penalty on the complainant, is of any consequence or not. The trial Court, while dealing with this defence taken by the appellant, has extensively dealt with this question in paragraphs No. 42 to 48 of the impugned judgment. The witness produced by the appellant Anil Kumar Mishra (DW-1) except making a bald statement that note-sheet was written on 05.07.1999, has not supported the appellant’s defence version, that he had received the amount of Rs.1,500/- from the complainant towards penalty and then handed it over to the appellant, and thereafter, trap party seized the amount from the appellant. 11. Having regard to the evidence on record and the judgment of the trial Court dealing with the defence raised by the appellant, in our considered view, the evidence of the prosecution witnesses has rightly been held to be reliable and trustworthy. We find that the prosecution has been able to prove that the appellant had demanded Rs.1,500/- from the complainant for processing his file for registration of the plot in his favour. The trap was arranged in the presence of panch witness A.S. Sisodiya (PW 2). We also find that the requirement of completing necessary formalities of the trap party for proceeding to the appellant’s office, where complainant (PW 1) gave bribe money to the appellant; on being signaled to the trap party, the appellant was caught red-handed after accepting the bribe money. We also find that the requirement of completing necessary formalities of the trap party for proceeding to the appellant’s office, where complainant (PW 1) gave bribe money to the appellant; on being signaled to the trap party, the appellant was caught red-handed after accepting the bribe money. Phenolphthalein test was duly carried out by washing the appellant’s hands, on which the solution turned pink. The defence put-forth by the appellant has not been found to be proved by the trial Court, as there is no reliable evidence produced by him. The note-sheet about penalty was prepared by the appellant and Anil Kumar Mishra. It was not containing any order of the Competent Authority for imposition of penalty on the complainant, till the raid was conducted. The trial Court has rightly discarded the said defence treating it to be an afterthought and fabricated. As regards the appellant’s contention that after the raid, the complainant had deposited Rs. 1,500/- towards penalty, suffice is to say that merely because after the trap was conducted, the appellant had deposited Rs. 1,500/- towards penalty, the same will not demolish the prosecution case, which otherwise, is fully trustworthy and reliable. 12. Having regard to the aforesaid, in our considered view, the impugned judgment of conviction passed by the trial Court being based upon cogent and reliable evidence and is also based upon correct appreciation of the same, it needs no interference. 13. So far as the question of sentence, keeping in view the fact that the appellant has already superannuated and is by now aged about 70 years, we deem it appropriate to reduce the sentence awarded to him under section 13 (1) (d) read with section 13 (2) of the Act from two years RI to one year RI with fine of Rs.1,000/- (rupees one thousand). The sentence of one year RI awarded for offence under section 7 of the Act shall remain intact. Both the sentences shall run concurrently. 14. With the aforesaid modification in the sentence, the appeal stands partly allowed.