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2024 DIGILAW 639 (MP)

Ramchandra Bhadoriya v. State of M. P.

2024-09-27

SUBODH ABHYANKAR

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JUDGMEN T : Subodh Abhyankar, J. 1. Heard finally, with the consent of the parties. 2. This criminal appeal has been filed by the appellant – Ramchandra Bhadoriya, under Section 374 of Cr.P.C. against the judgement dated 01.10.2005 passed in Special Case No.09/2002 by I A.S.J. and Special Judge, Indore (M.P.) whereby finding the appellant guilty, the learned Judge of the trial Court has convicted him as under:- Conviction Sentence Section Act Imprisonment Fine Imprisonment in lieu of Fine 7 Prevention of Corruption Act, 1988 2 years R.I. Rs.1,000/- 3 months R.I. 13(1)(D) read with Section 13(2) Prevention of Corruption Act, 1988 2 years R.I. Rs.1,000/- both the sentences run concurrently. 3. In brief, the facts giving rise to the present appeal are that complainant Kailash Joshi was the Panchayat Secretary of Gram Panchayat Bhangiya, Tehsil Sanwer, and he required around 20 land rights and loan book (Bhu Adhikar Evam Rin Pustika) for which he submitted an application on 12.06.2001, in the office of Tehsildar, Sanwer along with the bank challan, which was forwarded by the Tehsildar to the appellant Ramchandra Bhadoriya, who was then posted as Assistant Grade- I, who used to look after the distribution of the Rin Pustika (loan book). The appellant asked the complainant to bring five hundred rupees, and on 20.06.2001, when the complainant again met with the appellant, he told him to bring Rs.500/- on 21.06.2001, and since the complainant did not want to pay him the aforesaid amount as bribe, on 21.06.2001 itself, he made a complaint in writing to the S.P. Lokayukt, Indore at around 11:00 AM in the morning, which case was handed over to the Inspector M. L. Chouhan (P.W. - 6). Thus, a trap team was constituted and panch witnesses, namely, (PW/3)R.C. Suman, Assistant Commercial Tax Officer, Circle – I, Indore and Rajesh Kumar Kshatriya, Labour Officer, Office of Labour Commissioner, Indore were called, and after completing procedural formalities, the complainant produced ten currency notes of Rs.50/-denomination, on which phenolphthalein powder was applied and they were kept in the left pocket of the shirt of the complainant with usual instructions, and a tape recorder was also given to the complainant to record the conversation between him and the appellant regarding the bribe. 4. 4. Subsequently, the trap team reached the Tehsil office of the appellant, where the complainant went into the room of the appellant, and after he came out, he gave a signal by putting his hand on his head, and when the members of the trap team reached on the spot, the appellant also tried to flee from there, however, he was caught and informed the trap party that he has given the currency notes to the co- accused Bagdiram, who was posted as Panchayat Karmi/Secretary and thus, Inspector M.C. Sharma and Constable Manohar Patil went out to bring Bagdiram, and in the meantime, appellant?s hands were washed with sodium carbonate solution to which the solution did not turn pink and remained colourless, however, when Bagdiram was brought in, his hands were washed and his pant?s left pocket was also washed with the sodium carbonate solution, to which they turned pink. Co-accused Bagdiram also informed that he had given the aforesaid Rs.500/- to Kamal Kishore Mali, who sells vegetable on cart, outside the office. Thus, the aforesaid amount of Rs.500/- was finally seized from the said Kamal Kishore Mali, whose hands were also washed, which became pink. Thereafter, from the possession of appellant, Land rights and loan book (Bhu Adhikar Evam Rin Pustika) as also the distribution registers were also seized. During investigation, the transcript of the tape recorder was also prepared and the charge-sheet was filed, and the learned Judge of the trial Court, after recording the evidence, has convicted the appellant as aforesaid. Hence, this appeal. 5. Shri Vivek Singh, learned Counsel for the appellant has submitted that the prosecution has not been able to prove its case beyond reasonable doubt as neither the demand nor acceptance of bribe has been proved by the prosecution, which is sine qua non for conviction of an accused under the Prevention of Corruption Act, 1988 (in short „the Act of 1988?). It is submitted that the appellant has not been found in possession of the currency notes. 6. It is also submitted that so far as the demand is concerned, the transcript is of the voice recorder given to the complainant Kailash and in the transcript Ex./P13 itself, it is apparent that the persons, who had transcripted the same, found it difficult to make out the conversation between the parties due to interference of other voices in the conversation. It is further submitted that the complainant PW/1 Kailash, in para 9 of his cross-examination, has admitted that tape recorder was not played before him and the panchnama was already prepared, on which his signatures were obtained and he has also denied that he had given his statement Ex.P/7 to the police, and has also denied that there was any conversation between him and the appellant regarding the bribe, and the learned Judge of the trial Court has also recorded a finding in this regard in favour of the appellant only that the transcript is not admissible in evidence. Thus, it is submitted that the prosecution has not been able to prove the demand raised by the appellant. 7. It is also submitted that, admittedly, the solution of the appellant?s hand wash has been found to be colourless, which clearly indicates that the appellant has not obtained any amount in his hand. Thus, the factum of acceptance has been wrongly held to be proved by the learned Judge of the trial Court. It is also submitted that since the Rin Pustikas were already given by the appellant to the complainant Kailash without obtaining any consideration, it cannot be said that he had any motive to demand the bribe. Thus, it is submitted that the appellant be acquitted. 8. On the other hand, the prayer is opposed by the learned counsel for the respondent Shri R. S. Raghuvanshi, and it is submitted that despite the fact that the complainant has not supported the case of the prosecution, the learned Judge of the trial Court has rightly convicted the appellant on the basis of the attending circumstances, and the material available on record to suggest that the appellant had demanded the bribe and had accepted the same through a vegetable vendor, and since the Rin Pustikas were also given by the appellant to the complainant on the same day, it has to be interpreted that he had the motive to obtain the bribe. 9. Heard counsel for the parties and perused the record. 10. 9. Heard counsel for the parties and perused the record. 10. From the record, it is found that so far as the accused No.2 Bagdiram is concerned, he has already been acquitted by the learned Judge of the trial Court simply on the ground that he was a temporary Panchayat Karmi and could not say no to the main accused Ramchandra Bhadoriya, if he asked him to accept the money on his behalf. 11. It is an admitted fact that the hand wash of the appellant Ramchandra Bhadoriya when they were washed in sodium carbonate solution, did not turn pink but was colorless, whereas the hands of co- accused Bagdiram as also PW-5 Kamal Kishore, the vegetable vendor have turned pink as the amount has also been recovered from PW-5 Kamal Kishore. Whereas PW-5 Kamal Kishore has turned hostile and has not supported the case of the prosecution that the amount was given to him by Bagdiram. 12. It is also found that although the voice recorder was seized and transcript was also prepared, but the tape/voice recorder in the present case was notplayed in the trial Court, and the learned Judge of the trial Court has also not relied upon the transcript produced by the prosecution on record, which is Ex.P/8, and the Lokayukt has also not preferred any appeal against the aforesaid finding recorded by the trial Court. Even otherwise, this court does not find any error in the said finding recorded by the trial court. 13. Admittedly, the complainant PW-1/ Kailash Joshi has turned hostile and has not supported the case of the prosecution. Thus, this Court is left with the prosecution witnesses, who have not turned hostile to see if the appellant had demanded the amount of Rs.500/- from the complainant, and accepted the same through co-accused Bagdiram. 14. PW-2 Sudhir Tare is the Tehsildar, in his cross-examination he has admitted that on 21.06.2001, i.e., the day of trap, the appellant had taken half day?s leave on the ground of his ill health and this leave was obtained by him after the lunch hours. PW-3 R.C. Suman, retd. 14. PW-2 Sudhir Tare is the Tehsildar, in his cross-examination he has admitted that on 21.06.2001, i.e., the day of trap, the appellant had taken half day?s leave on the ground of his ill health and this leave was obtained by him after the lunch hours. PW-3 R.C. Suman, retd. Sales tax officer, the other prosecution witness present in the trap, in para 6 of his examination-in-chief has stated that after the complainant PW/1 Kailash Joshi went into the office of the appellant, he (PW/1) came out and informed that the appellant Ramchandra Bhadoriya is not in the office, and has gone to the market and thus, he and the other members of the party started to search for him and they found him near a bus stand while boarding a bus, and when they inquired from him if he had taken any money from the complainant to which he denied and has also stated that at that time Pw/1 Kailash Joshi, the complainant informed them that the money is lying with the vegetable vendor Kamal Kishore, and thereafter, the amount was recovered from the vegetable vendor PW/5 Kamal Kishore only. This witness (PW/3) has been declared partially hostile and although in his cross-examination, he has been suggested that at the time when the appellant Ramchandra Bhadoriya was caught, he was shouting that he has not done anything and why he is being caught by them, to which, this witness has denied. 15. This witness (PW/3) has been declared partially hostile and although in his cross-examination, he has been suggested that at the time when the appellant Ramchandra Bhadoriya was caught, he was shouting that he has not done anything and why he is being caught by them, to which, this witness has denied. 15. PW-1 Kailash has also stated in his examination-in-chief that when he went to the office of the appellant, he initially did not cooperate with him and asked him to come after couple of days to take the Rin Pustikas and when he went after couple of days, he was again informed by the appellant that he cannot get the Rin Pustikas because of the over work and again he asked him to come after couple of days at that time he also met with another clerk of the office, who informed him that he cannot get the Rin Pustikas like this, unless he pays a sum of Rs.500/- to the vegetable vendor Kamal Kishore, who sits outside the office and after the said vegetable vendor informs the appellant that he has already receivedthe amount, his (PW/1?s) work would be done, and since he did not want to pay the sum to the vegetable vendor, he has made a complaint to the Lokayukt Police. He has also stated that subsequently when he took the sum of Rs.500/- to the office of the appellant before entering into the office, he gave Rs.500/- to the vegetable vendor and after that he went into the office of the appellant where appellant Ramchandra and co-accused Bagdiram were sitting and he shook hands with Bagdiram and also talked to him for a couple of minutes and when he asked for Rin Pustikas from the appellant, he said that it would be given to him within a couple of minutes and asked him to sit for a while and subsequently, he (appellant) went out to have a tea and after coming back he gave the Rin Pustikas to him and also took his signatures, and thereafter he (PW/1) came out of the office and when the Lokayukt personnel asked him if he has given the money, to which he informed that he has already given the same to the vegetable vendor. 16. 16. At this juncture, it would be fruitful for this Court to refer to the decision rendered by the Supreme Court in the case of Neeraj Dutt a Vs. State (Government of NCT of Delhi) , reported as (2023) 4 SCC 731 . The relevant paras of the same read as under, which is in respect of the procedure to be adopted by the Courts when the complainant has turned hostile in the cases relating to Prevention of Corruption Act. “88. What emerges from the aforesaid discussion is summarised as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe- giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe- giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act. 88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 88.6. (f) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature. 89. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three-Judge Bench decisions of this Court in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] and P. Satyanarayana Murthy [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] with the three-Judge Bench decision in M. Narsinga Rao [M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 : 2001 SCC (Cri) 258], with regard to the nature and quality of proof necessary to sustain a conviction for the offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases. 90. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases. 90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under: In the absence of evidence of the complainant (direct/ primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.” (Emphasis supplied) 17. A perusal of the aforesaid decision would reveal that in cases where the complainant is not able to be produced by the prosecution or turns hostile, in such circumstances, the Court is required to see the surrounding circumstances of the case to see if the appellant had received the amount, which he demanded from the complainant. 18. On careful perusal of the record, this Court is of the considered opinion that the prosecution has not been able to prove the demand from the complainant, as firstly, the tape recorder was not played in the trial Court, although it was produced,and secondly, the transcript has also not been accepted by the learned Judge of the trial Court as the proof of demand owing to its infirmities as the Court has found that there was too much disturbance in the voice recording, and apart from that,this Court also finds that the accused has also not been put any question that the voice in the tape recorder was of his only as the tape recorder itself has not been played in the trial Court. Thus, merely on the basis of the complaint Ex.P/1, filed in the office of Lokayukt police by PW/1 Kailash, which, according to him was dictated by the police only, and the fact that the complainant PW/1 Kailash has also not supported the case of the prosecution, in the absence of any corroborative evidence, there is no way of knowing if the amount was actually demanded by the appellant. 19. 19. So far as the acceptance is concerned, neither the amount has been recovered from the present appellant, nor his hands have turned pink after they were washed in sodium carbonate, and PW-5 Kamal Kishore from whose possession the currency notes have been recovered has also not supported the case of the prosecution, who could have thrown some light as to how he came in possession of the said currency notes. 20. Although, it is true that co-accused Bagdiram had received the amount from the complainant, but there is nothing on record to suggest that the appellant had asked the complainant to hand over the amount to Bagdiram, and the prosecution has also not been able to prove the transcript Ex.P/8 to be the true version of the demand made by the appellant. 21. In such circumstances, this Court is of the considered opinion that in the present case the appellant has been able to rebut the presumption of guilt against him, and the prosecution has not been able to prove its case beyond reasonable doubt. Accordingly, the impugned judgement dated 01.10.2005 is hereby set aside and the appellant is acquitted. 22. With the aforesaid, the appeal stands allowed and disposed of.