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2013 DIGILAW 1409 (MP)

Laxmikant v. State of M. P.

2013-11-19

G.S.SOLANKI, N.K.GUPTA

body2013
JUDGMENT Solanki, J. -- 1. This appeal has been preferred by the appellant under section 374 of the CrPC being aggrieved by judgment of conviction and order of sentence dated 29.10.1998 passed by Special Judge, Satna in Special Sessions Case No.2/94 whereby the appellant has been convicted under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act and sentenced to RI for 1 year with fine of Rs.1,000/- and RI for 1 year with fine of Rs.1,000/- respectively with default stipulations. 2. The facts, in short, giving rise to this appeal are that complainant Umashankar Dwivedi (PW8) met with the appellant, who was posted as Patwari at Patwari Halka Tyodhara, Tahsil Amarpatan, District Satna, for the purpose of mutation of his land bearing Khasra No.9/2 Rakba 0.283 in his favour, for which the appellant demanded a sum of Rs.300/- from the complainant as illegal gratification. The complainant gave a sum of Rs.50/- to the appellant and agreed to give remaining sum of Rs.250/- at Tahsil Office, Amarpatan. Not being inclined to give the bribe to the appellant, the complainant made a written complaint to the Superintendent of Police, Special Police Establishment (Lokayukta) Rewa who, in turn, directed Inspector R.R. Mishra (PW11) to arrange a trap. Inspector R.R. Mishra (PW11) initially gave the complaint for verification to independent witness R.P. Shukla (PW2), who verified the facts of the complaint, thereafter the complainant gave a sum of Rs.250/-, which were smeared with phenolphthalein powder, thereafter preliminary Panchnama (Ex.P-6) was prepared and the trap party proceeded towards Tahsil Office, Amarpatan along with the Panch witnesses. The complainant handed over the money to the appellant, which was kept by him in the front pocket of his shirt, thereafter, after receiving the signal, the trap party caught hold the appellant. During the aforesaid process, Jivan Lal Shukla, Revenue Inspector made hue and cry and threatened the trap party, then other companion Patwaris like Dharmraj Singh, Banshilal Khare, Babu Nagesh Shrivastava started scuffling with the trap party in order to facilitate the appellant to run away from the spot. While running away from the spot, the appellant left his official bag/record on the spot. While running away from the spot, the appellant left his official bag/record on the spot. This fact has been verified by R.R. Mishra (PW11), Tahsildar Amarpatan, that the said record was given on Supurdginama to him and the report was lodged against the persons who obstructed the trap party in discharging of their duties and offence under sections 147, 153, 186, 294, 506 of the IPC was registered against them and offences under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act were registered against the appellant. 3. After due investigation, the appellant was charge-sheeted before the Special Judge. Learned Special Judge framed the charges under sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act and sections 224, 201 of the IPC against the appellant. 4. The appellant abjured the guilt and pleaded false implication. He took the defence that the appellant was not authorized to pass the order of mutation and he did not make any demand. He further took the defence that he was not present on the spot at the time of incident, at that time he was at Teonthara. In his defence the appellant has examined Ramayan Prasad Pandey (DW1) and Shivram Prasad (DW2). 5. On appraisal of evidence on record, the learned Special Judge convicted and sentenced the appellant as mentioned hereinabove, hence this appeal. 6. Learned counsel for the appellant has submitted that the trial Court has committed illegality in not appreciating the evidence on record in its proper perspective. The appellant was not competent for mutation of the name as well as for issuing Rin-Pustika to the complainant. The alleged bribe money was not seized from the possession of the appellant. No witness of trap party accompanied the complainant at the time of giving the bribe money. Thus, the prosecution has failed to prove the case against the appellant for demand and acceptance of the bribe money, hence the conviction and sentence recorded by the trial Court be set aside and appellant be acquitted to the aforesaid charges. Learned counsel for the appellant has placed reliance on the decision of this Court in Ram Mohan Agrawal (dead) through LRs v. State of M.P. [2012(1) MPLJ (Cri.) 483], Shrikant s/o Kanhaiyalal Makhijani v. State of M.P. through SPE, Lokayukt [2012(2) MPLJ (Cri.) 661], and Narendra Champaklal Trivedi v. State of Gujarat [2013(1) MPLJ (Cri.) 17]. 7. Learned counsel for the appellant has placed reliance on the decision of this Court in Ram Mohan Agrawal (dead) through LRs v. State of M.P. [2012(1) MPLJ (Cri.) 483], Shrikant s/o Kanhaiyalal Makhijani v. State of M.P. through SPE, Lokayukt [2012(2) MPLJ (Cri.) 661], and Narendra Champaklal Trivedi v. State of Gujarat [2013(1) MPLJ (Cri.) 17]. 7. Learned counsel for the respondent has supported the judgment of conviction and order of sentence passed by the trial Court. 8. We have heard the learned counsel for the parties at length and gone through the evidence and other material on record. First coming to the submission raised by the learned counsel for the appellant that the appellant was not competent for mutation of the name of the complainant and for issuing the Rin-Pustika, Ram Prasad Mishra, Tahsildar (PW9) has admitted in his cross-examination that Patwari is only authorized to take the application for mutation and to make publication in the prescribed manner and then list the case for hearing before the Revenue Inspector and only the Revenue Inspector is authorized for mutation. Complainant Umashankar Dwivedi (PW8) has stated that he met the appellant (Patwari) for the purpose of mutation and preparation of Rin-Pustika, he demanded bribe of Rs.300/- for the said purpose, out of which he gave Rs.50/- to him on the same day and the appellant told him to come with remaining Rs.250/- on 11.8.1987 at Amarpatan. This very fact finds place in the report (Ex.P-5) filed by the complainant. 9. Now the main question for consideration arises that if the appellant was not competent for mutation, then what would be the impact on the case of the prosecution? This question has been considered by the Kerala High Court in Cherian Lukose v. State of Kerala [AIR 1968 Kerala 60], in which it has been observed by the Kerala High Court that though the nurse was not competent to allot the bed but her role for allotment of bed was important and general public had an impression that she was important person who could help in allotment so to offer bribe to her. A Division Bench of this Court by referring the decision of Cherian Lukose v. State of Kerala (supra), has taken the similar view in the judgment delivered in Criminal Appeal No.81/2001 (Jagdish Chandra Raikwar v. State of M.P.) on 19.8.2010, which remained unchanged in SLP (Cri.) No.8598/2010, which was dismissed by the apex Court on 25.10.2010. Similar is the situation in the instant case. In this case though the appellant was not competent for mutation but he was an important person to initiate the mutation proceedings, therefore, the complainant must be under impression that the appellant would be helpful person in the process of mutation and preparation of Rin-Pustika. Thus, it cannot be said that there was no opportunity or motive to receive the bribe by the appellant. 10. Coming to the next submission raised by the learned counsel for the appellant that the alleged bribe money was not seized from the possession of the appellant and no witness of trap party accompanied the complainant at the time of giving the bribe money; complainant Umashankar Dwivedi (PW8) has stated that since he was not willing to give bribe money for mutation, he filed written report (Ex.P-5) in the Office of Lokayukt, Rewa, thereafter he gave money to the trap party and preliminary Panchnama (Ex.P-6) was prepared. Currency notes were smeared with phenolphthalein powder, thereafter they went to Tahsil Office, Amarpatan. He further stated that Ramesh Prasad Chaturvedi (PW7) also accompanied him. They met the appellant and gave money to him but at the same time one Thakur was present there, he took the money from him. This witness has become partly hostile in regard to the fact that who received the money from him. On cross-examination by the Special Prosecutor, he admitted that the trap party came on the spot when the appellant was keeping the money in his pocket. He further admitted that after seeing the trap party, the appellant tried to throw the money then the trap party caught hold his hands. 11. Ramesh Prasad Chaturvedi (PW7), who was the shadow witness of the appellant, stated that he saw that complainant Umashankar Dwivedi (PW8) took out the money from his pocket and raised his hand towards the appellant, therefore, he presumed that the Patwari has accepted the money. 11. Ramesh Prasad Chaturvedi (PW7), who was the shadow witness of the appellant, stated that he saw that complainant Umashankar Dwivedi (PW8) took out the money from his pocket and raised his hand towards the appellant, therefore, he presumed that the Patwari has accepted the money. At the same time he gave signal to the trap party and when trap party came on the spot and caught hold the appellant, there was scuffle between the trap party, appellant and his colleagues, thereafter, the appellant fled away from the spot. This witness has also become partly hostile. 12. Another independent witness like R.P. Shukla (PW2), who was a Panch witness and sent by District Magistrate, has categorically stated that complainant Umashankar Dwivedi (PW8) appeared before the Investigating Officer at Lokayukt Office, Rewa and gave a complaint and stated that the appellant has demanded illegal gratification of Rs.300/- for the purpose of mutation, out of which a sum of Rs.50/- has already taken by him. He further corroborated that remaining sum of Rs.250/- was presented by complainant, same were smeared with phenolphthalein powder, thereafter, he had gone with the complainant to the Tahsil Office, Amarpatan where the complainant met the appellant (Patwari). He has further stated that he and other witnesses were standing at such a place from where they could see the complainant and appellant. After receiving the signal, the trap party reached to the place where some money was given to the appellant. One of the members of trap party Vijay Singh caught hold the appellant, the appellant tried to throw the money and then there was hue and cry made by the appellant and his companion Patwaris, thereafter, the appellant fled away from the spot. This fact was substantially corroborated by another witness R.B. Singh (PW5), who also accompanied the trap party and R.R. Mishra (PW11) who arranged the trap of the appellant. Since independent witness Ramesh Prasad Chaturvedi (PW7) accompanied the complainant at the time of incident, in these circumstances, the principle laid down by this Court in Shrikant s/o Kanhaiyalal Makhijani v. State of M.P. through SPE, Lokayukt (supra), are not applicable to the instant case. 13. It is true that the demand and acceptance of the amount as illegal gratification is sine qua non for constituting the offence under sections 7, 13 of the Prevention of Corruption Act. 13. It is true that the demand and acceptance of the amount as illegal gratification is sine qua non for constituting the offence under sections 7, 13 of the Prevention of Corruption Act. The facts of Ram Mohan Agrawal (dead) through LRs v. State of M.P. and Narendra Champaklal Trivedi v. State of Gujarat are different than the instant case. In the aforesaid cases, the prosecution was failed to prove the demand and acceptance of amount of illegal gratification. But in the instant case, as discussed hereinabove, it has been proved on record that the complainant filed a complaint (Ex.P-5) before B.D. Handa (PW4), who directed R.R. Mishra (PW11) for further enquiry. This fact has been duly corroborated by R.R. Mishra (PW11), independent Panch witness R.P. Shukla (PW2) and further corroborated by R.B. Singh (PW5), who was also the witness of aforesaid procedure. Though R.B. Singh (PW5) was Inspector in the Police, but it is well established principle of law that Police Officer should not be disbelieved only on the basis of the fact that he is a Police Officer unless and until there is some enmity with the appellant brought on record. 14. So far as some discrepancies brought in the evidence of complainant Umashankar Dwivedi (PW8) and Ramesh Prasad Chaturvedi (PW7) with regard to fact that money was handed over to the appellant or one Thakur, are concerned, it is well established principle of law that the statement of witnesses should be evaluated as a whole and not on the basis of some admission as a stray statement. The witnesses R.P. Shukla (PW2), R.B. Singh (PW5) and R.R. Mishra (PW11) who conducted the trap, had gone along with the complainant and his shadow witness Ramesh Prasad Chaturvedi (PW7) to the place of incident where complainant Umashankar Dwivedi (PW8) met the appellant and gave him money. This fact has been duly corroborated by Ramesh Prasad Chaturvedi (PW7) with the discrepancy that he only saw that complainant offered the money and raised his hands towards the appellant, therefore, he presumed that the bribe was given to the appellant. If this statement is considered along with the statement of other witnesses like R.P. Shukla, R.B. Singh and cross-examination of complainant Umashankar Dwivedi, it amply proves on record that the complainant was called by the appellant for taking bribe Rs.250/-. If this statement is considered along with the statement of other witnesses like R.P. Shukla, R.B. Singh and cross-examination of complainant Umashankar Dwivedi, it amply proves on record that the complainant was called by the appellant for taking bribe Rs.250/-. He mentioned this fact in the written report, which has been duly corroborated by Panch witness R.P. Shukla and thereafter the complainant and other witnessed had gone to Tahsil Office, Amarpatan where complainant met the appellant and gave bribe money to him. It has also come in the evidence that the appellant and his companion Patwaris made hue and cry and scuffled with the trap party and during the said process, the appellant fled away from the spot. This fact has been corroborated by independent witnesses like R.P. Mishra (PW9) Tahsildar and Arun Prasad Mishra (PW10). As per the statement of R.P. Mishra (PW9) Tahsildar, the official bag/record of the appellant was found lying on the spot and same was seized in his presence. Arun Prasad Mishra (PW10) has categorically stated that the appellant was present there and appellant and his companion made hue and cry and scuffled with the trap party. Both these witnesses are independent witnesses and in our opinion, the trial Court has rightly believed them. 15. The evidence discussed hereinabove, further finds corroboration from the conduct of the appellant that if he did not demand and receive the money, why he fled away from the spot? This unnatural conduct is also relevant and admissible as evidence against the appellant under section 8 of the Evidence Act. 16. Considering the aforesaid prosecution witnesses, in our opinion, the trial Court has rightly disbelieved the defence witnesses Ramayan Prasad Pandey (DW1) and Shivram (DW2) on the point of plea of alibi. 17. On careful scanning of aforesaid evidence on record, we are of the considered opinion that the trial Court has not committed any illegality in recording the conviction of the appellant under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act. So far as sentence is concerned, the trial Court has awarded minimum prescribed jail sentence to the appellant, therefore, no interference is called for in the same. 18. Resultantly, the appeal fails and is hereby dismissed. The conviction and sentence recorded by the trial Court is hereby affirmed. The appellant is on bail, his bail bonds and surety bonds stand cancelled. 18. Resultantly, the appeal fails and is hereby dismissed. The conviction and sentence recorded by the trial Court is hereby affirmed. The appellant is on bail, his bail bonds and surety bonds stand cancelled. He is directed to surrender before the trial Court on or before 21.1.2014. Record of the trial Court be sent back immediately along with the copy of this judgment for information and necessary action.