Research › Search › Judgment

Chhattisgarh High Court · body

2015 DIGILAW 82 (CHH)

Pramod Kumar Lal v. State of Madhya Pradesh

2015-03-09

MANINDRA MOHAN SHRIVASTAVA

body2015
JUDGMENT Manindra Mohan Shrivastava, J. 1. This appeal is directed against impugned judgment of conviction and sentence dated 27/07/98 passed by the Special Judge, Raipur in Special Case No. 04/93 whereby the appellant has been convicted and sentenced as described below- Conviction Sentence Under Section 161 IPC One Year R.I. and fine of Rs.1,000/- in default, S.I. for three months. Under Section 5(1)(d)/5(2) of the Prevention of Corruption Act, 1947 One Year R.I. and fine of Rs. 1000/- in default of fine S.I. for three months. Both the sentences are directed to run concurrently. Briefly stated, prosecution story is that at the relevant time, when the appellant was posted and working as Assistant Veterinary Surgeon at Mahasamund, complainant - Devkumar Sahu (PW 4) submitted a complaint in the office of Lokayukt, Raipur vide Ex. P/4 on 21/08/87 in which, it was stated that the complainant was required to get cattle purchased through bank loan, insured with the insurance company and for that, he needed cattle fitness certificate. 2. The appellant demanded Rs. 500/- for issuing insurance certificate and on his insistence, though he issued certificate but has been continuously demand Rs. 500/- from him on the threat that he will not treat his cattle. In the complaint, it was further stated that on 15/08/87, when the complainant met the appellant near railway crossing, he demanded Rs. 200/- with the condition that remaining amount may be deposited later on and as he is not willing to give bribe, report is being lodged. The officer instructed a subordinate police inspector - Pothiram (PW-2) to take necessary steps and two independent witnesses, V.K. Jain (PW-5) and S.K. Singh (SPW-15) were called to verify the complaint. Thereafter, a pre-trap panchanama of collecting currency notes from the complainant, demonstration of reaction of phenolphthalein powder with sodium carbonate solution was prepared vide Ex. P/5. Tainted currency notes were kept in the pocket of the complainant with instructions not to touch it before handing it over to the appellant. The prosecution witnesses were also instructed to remain near and around the complainant and overhear conversation. P/5. Tainted currency notes were kept in the pocket of the complainant with instructions not to touch it before handing it over to the appellant. The prosecution witnesses were also instructed to remain near and around the complainant and overhear conversation. Further case of the prosecution is that thereafter, complainant went to meet the appellant, handed over the currency notes to the appellant upon demand, which was accepted by the appellant and at the spot, trap team arrived, currency notes were recovered and proceedings of washing hands of the appellant, currency notes and hands of the complainant were drawn and the hand wash was kept and sealed in bottle. Dehati Nalishi was recorded at the spot in Ex. P/16 which was followed by registration of FIR in Ex. P/17. After completion of investigation, sanction for prosecution was sought and granted by the competent authority vide Ex. P/14. On the basis of the material contained in the charge sheet, learned Trial Court framed charges under Section 161 IPC as also under Section 5(1)(d)/5(2) of Prevention of Corruption Act, 1947 (for short "the Act of 1947"). The appellant abjured guilt and was put to trial. 3. The prosecution, in order to prove its case, examined in all, 19 witnesses. The appellant was also examined in respect of the incriminating evidence appearing against him and he stated that he has been falsely implicated. Harishakar Pandey was examined as defence witness. In support of defence of the appellant he has stated that the appellant had been visiting the house of the complainant to check up and treat cattle and fees was payable towards check up and treatment of the animals in the house of the appellant. 4. Learned Special Judge disbelieved the defence version and relying upon the evidence led by the prosecution, held the appellant guilty of commission of offence as described above. 5. Assailing correctness and validity of impugned judgment of conviction and sentence, learned counsel for the appellant submits that the evidence led by the prosecution proves that the appellant was entitled, as per rules, to charge visiting fee. 5. Assailing correctness and validity of impugned judgment of conviction and sentence, learned counsel for the appellant submits that the evidence led by the prosecution proves that the appellant was entitled, as per rules, to charge visiting fee. The evidence has come on record and it has also been clearly admitted by the complainant (PW4) that the appellant had visited his house in connection with cheek up and treatment of cattle and demand was being made towards payment of fees in connection with visiting fee for several visits made to his house. Learned counsel for the appellant further argued that the evidence of the complainant (PW-4) completely demolishes the complaint as the complainant himself has stated that though, demand was made towards payment of fee in connection with treatment of animals/cattle by visiting in the house of the complainant, at the instance of Vigilance Officer, the story that demand was made for the issuance of fitness certificate was developed at the spot and on that basis, the complaint was prepared (sic) there is no element of criminality involved in terms of provisions contained in Section 5(1)(d) of the Act of 1947, there being no demand as illegal gratification, no case of criminal misconduct is made out. 6. On the other hand, learned State counsel submits that there is overwhelming evidence that tainted currency notes were recovered from the possession of the appellant and the explanation offered by the appellant is neither plausible no probable. He submits that the appellant was a Government servant. The evidence with regard to charging visiting fee, only proves that very nominal charges could be taken while visiting the house of the owner of the animals in connection with check up and treatment of animals. Demand of huge amount of Rs. 500/- shows that demand of money was not made towards payment of fee but only as illegal gratification for issuing certificate of fitness of animals for the purposes of insurance. 7. In order to bring home the guilt of the accused for commission of offence under Section 5(1)(d) of the Act of 1947, as it existed at the relevant time, it has to be proved that there was a demand made as illegal gratification followed by acceptance and recovery. 7. In order to bring home the guilt of the accused for commission of offence under Section 5(1)(d) of the Act of 1947, as it existed at the relevant time, it has to be proved that there was a demand made as illegal gratification followed by acceptance and recovery. Unless these three essential ingredients are proved, no case of criminal misconduct, as defined under Section 5(1)(d) of the Act of 1947 can be said to have been made out. 8. In the case of Panalal Damodar Rathi v. State of Maharashtra, AIR 1979 SC 1191 , the Supreme Court observed as under- "8. There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Indian Penal Code making the person who offers bribe guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon..." 9. The status of person offering bribe and the caution required while assessing his evidence implicating a Govt. Servant was examined by the Supreme Court in its subsequent decision in the case of M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC 351 , wherein, it was held as under: "12. Now confining ourselves to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. Though bribe - givers are generally treated to be in the nature of accomplices but among them there are various types and gradations. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving the trap cannot succeed. When there is such a demand by public servant from a person who is unwilling, and if to do public good approaches the authorities and lodges a complaint, then in order that the trap succeeds he has to give the money. There could be another type of bribe giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of 'accomplices' by reason of their being bribe - givers, in the first instance, the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances." 10. Keeping in view aforesaid legal principles, the evidence on record is required to be scrutinized to find out whether the appellant demanded money as illegal gratification within the meaning of Section 5(1)(d) of the Act of 1947. 11. In the complaint (Ex. P/4), it has been written that the appellant demanded Rs. 500/- for issuance of insurance certificate and upon much insistence of the complainant, though certificate was issued, the appellant kept on raising demand of bribe of Rs. 500/- and the appellant also threatened not to treat the animals in the hospital. It has also been stated therein that on 15/08/87, when the appellant met the complainant near railway crossing, he asked him to give Rs. 200/- and stated that rest of the amount may be given later. However, the evidence of complainant (PW4), not only demolishes the story but also proves the story of demand, as narrated in the complaint, as an after thought. 200/- and stated that rest of the amount may be given later. However, the evidence of complainant (PW4), not only demolishes the story but also proves the story of demand, as narrated in the complaint, as an after thought. In his testimony, complainant (PW4) has stated that the appellant had demanded Rs. 500-600/- in connection with treatment of his cattle 2-3 months before. In the same continuation, he further deposed that when the appellant met him 2-3 days before, he said that money was not paid to him and then he came to know that Vigilance Officers had come and stayed in the house of one Shri Lohani in Mahasamund. He has further started that when he was going to market, he met with Shakeel, son of Lohani and when he enquired about the crowd in the house, it was informed that Lokayakt officers have arrived. At this stage, he informed Shakeel that the Doctor is demanding Rs. 500-600/- whereas he had only Rs. 200/- left with him. At this stage, he was introduced by Shakeel to Vigilance Officer. He met with Mr. S.P. Pandey and informed regarding demand. He was advised to give an application. The complaint has emphatically stated that he was told that no case would be made out in respect of demand of money towards fee for treatment and if some other work was get done earlier, he may write an application. When the complainant informed that he got done cattle insurance, then he was advised by Mr. Pandey that he may write application concerning insurance of cattle. Thereafter, an application was prepared in the house of Shri Lohani. He has further deposed that the application (Ex. P/4) was written in the manner as dictated and tutored by the vigilance officers and handed over to Mr. Pandey, in which he admitted his signature. The aforesaid evidence of the complainant, not only falsify the complaint but also shows that the complainant was advised to write a complaint regarding demand on a afterthought story. 12. The complainant, in para 3 of his evidence, has stated that he went to the house of the appellant and after giving call bell, appellant came out, he informed that he has to pay him money and the appellant received Rs. 200/- and kept in his pocket. Thereafter, the vigilance team arrived at the spot and recovered money. 12. The complainant, in para 3 of his evidence, has stated that he went to the house of the appellant and after giving call bell, appellant came out, he informed that he has to pay him money and the appellant received Rs. 200/- and kept in his pocket. Thereafter, the vigilance team arrived at the spot and recovered money. The complainant was declared hostile and thereafter, in para 5 of his cross - examination, he denied suggestion given by the prosecution that the appellant demanded Rs. 500/- as bribe for issuance of necessary medical certificate for the purposes of cattle issuance insurance. The entire story of demand of bribe towards issuance of fitness certificate of cattle for insurance is demolished from what this witness has stated in para 15, 16 and 17 of his cross examination. He has clearly admitted that the insurance of cattle had already taken place, 6-8 months before the trap was arranged. He has admitted that at the time of insurance, no hinderance was caused. He has further clarified that the demand made by the appellant, after insurance, was in connection with fee towards check up and treatment of animals/cattle in the dairy farm. He has further admitted that the appellant had never given any threat of not treating his animals. He was tutored to write the application. He has further stated that even after insurance of cattle and till 21/08/87, whenever cattle were taken to hospital, they were treated. In para 16 of has evidence, this witness states that once in a week, the appellant used to come to his dairy farm to check up and treat the animals and he had to pay six months fee towards check up of animals for the last six months and it was in connection with that fee that the doctor used to raise demand. Further, evidence in para 17 of his cross examination reveals that payment which was made to the appellant on 21/08/87 was towards payment of visiting fee and before giving this amount, he told the appellant that he is giving fee of Rs. 200/- in connection with visiting fee for checking up and treating his animals in his house. 13. The aforesaid emphatic evidence of the complainant demolishes the prosecution story of demand and acceptance of bribe by the appellant. 200/- in connection with visiting fee for checking up and treating his animals in his house. 13. The aforesaid emphatic evidence of the complainant demolishes the prosecution story of demand and acceptance of bribe by the appellant. On the contrary, overwhelming evidence is that the appellant had been visiting the dairy farm of the complainant and demand was made only towards visiting charges. More particularly, payment of Rs. 200/- has been clearly stated to be towards payment of that fee only. 14. Two independent panch witnesses have also not supported the prosecution story of demand and acceptance. None of the witnesses have stated that they overheard any conversation that the appellant had accepted Rs. 200/- as bribe in connection with issuance of fitness certificate towards insurance of cattle, both V.K. Jain (PW 5) and S.K. Singh (PW 15) have stated in their evidence that at the time of trap, immediate explanation offered by the appellant was that whatever amount was paid to him was payment towards fee, which he is entitled to charge in respect of check up and treatment of cattle in the house/dairy farm of the complainant. This is what has been stated by the complainant (PW 4) as also by police witness Sen Singh (PW 6), Constable. He has stated in para 9 of his evidence that at the time of trap, the appellant had stated that he had visited the house of the complainant in connection with check up and treatment of cattle and it is in connection with amount of fee payable to him and he had not demanded money as illegal gratification. 15. The fact that the appellant, in his capacity as Government Servant, was entitled to the charge visiting fee in connection with check up and treatment of animals in the house of owner of the animals is proved from the evidence of the prosecution. The defence story is also supported from the evidence of defence witness - Harishankar Pandey (DW 1). 16. Dr. S.P. Sharma (PW 1) as well as Dr. A.S. Pandey (PW 7) who issued letter (Ex. P/12) have stated that there is a provision permitting private practice by visiting dairy farm and fee is also chargeable as per Veterinary Manual (Ex. P/3). Perusal of the exact of the manual (Ex. P/3) clearly proves that the doctor is entitled to charge visiting fee. A.S. Pandey (PW 7) who issued letter (Ex. P/12) have stated that there is a provision permitting private practice by visiting dairy farm and fee is also chargeable as per Veterinary Manual (Ex. P/3). Perusal of the exact of the manual (Ex. P/3) clearly proves that the doctor is entitled to charge visiting fee. It is not only an immediate explanation offered by the appellant but also proved from the evidence of complainant (PW 4) himself that the amount which was being demanded by the appellant, was towards payment of fees, due and payable by the complainant to the appellant in connection with visits made to the dairy farm of the complainant by the appellant. According to the complainant himself, the appellant used to visit his dairy once in a week which renders the statement plausible and probable that the appellant may have made visit to his dairy farm approximately 24 times. The complainant himself has stated that he has 6 - 7 animals in his dairy. Thus, if Rs. 5 is taken as check up and treatment of animals per visit, the appellant is entitled to charge as fee around Rs. 30-40/- per visits. Thus, in respect of 24 visits made during six months, the appellant could legitimately claim fee of more than Rs. 500/-. That is what has been stated by the complainant in his evidence that the appellant was demanding Rs. 500-600/-. 17. The appellant had already issued fitness certificate for the animals way back on 19/03/87 vie Ex. P/21 and challan of deposits towards insurance in Ex. 18-A and Ex. P/20 were issued much before the date of demand. 18. Learned State counsel laid much emphasis on recovery aspect. It is well settled legal position that mere recovery divorced from attending circumstances of the case, does not by itself, sufficient to prove deemed of bribe by a public servant. 19. In the case of T. Subramanian v. State of T.N., (2006) 1 SCC 401 it has been held that mere proof of receipt of money by the accused in absence of proof of demand and acceptance of money as illegal gratification would not be sufficient to establish the guilt of the accused. 19. In the case of T. Subramanian v. State of T.N., (2006) 1 SCC 401 it has been held that mere proof of receipt of money by the accused in absence of proof of demand and acceptance of money as illegal gratification would not be sufficient to establish the guilt of the accused. In the case of Sita Ram v. State of Rajasthan (1975) 2 SCC 227 the Supreme Court held that when story of demand of bribe by the accused appellant from the complainant was not proved and even story of demand of money by the complainant was not established beyond reasonable doubt, the rule of presumption that the money was accepted as bribe could not be resorted in order to convict the accused. In Suraj Mal v. State (Delhi Administration), AIR 1979 SC 1408 , it has been held that in case of bribery, mere recovery of money divorced from the circumstances under which it is paid, it would not sufficient to convict the accused when the substantive evidence in the case, is not reliable. In Jagdish Chandra Makhjja v. State of Madhya Pradesh, 1990 MPLJ 239 , it has been held that in a trap case when initial part of the story of demand and offer is found to be untrustworthy, testimony of the complainant cannot be accepted. 20. In the absence of A. Subair (Supra), in paragraphs 30 and 31 at Page 594, it has been held: "Mere recovery of currency notes (Rs. 20/- and Rs. 5/-) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence." 21. View taken in the case of Suraj Mal (supra) was reiterated in the case of C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 , holding that merely recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 , holding that merely recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of reliable evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. In the result, the impugned judgment of conviction and sentence cannot be sustained in law and has to be set aside and is accordingly set aside. The appellant is acquitted of the charges. As the appellant is on bail, his bail bonds stand discharged.