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[Cites 19, Cited by 0]

Madhya Pradesh High Court

Special Police Establishment ... vs Radhakrishna on 6 January, 2020

Author: Vivek Rusia

Bench: Vivek Rusia

-1-                                MCRC No.2858/2017

         HIGH COURT OF MADHYA PRADESH:
                BENCH AT INDORE
 SINGLE BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA

                       MCRC No.2858/2017

      Applicant          :     Special Police Establishment, Indore

                                             Versus

      Non-applicants     :Radhakrishna s/o Vardhichand
                          Vaktariya & one another
________________________________________________________

          Shri R.S.Raghuvanshi, learned counsel for the
          applicant.
          Shri M.I.Ansari, learned counsel for the non-
          applicants.
________________________________________________________
Whether approved for reporting: Yes / No

                            O R D E R

(Passed on 06.01.2020) Special Police Establishment through SP, Indore has filed the present application under section 378(3) of the Code of Criminal Procedure,1973( Cr.P.C.) for grant of leave to file criminal appeal against the judgment dated 28.12.2016 passed by Special Judge (Prevention of Corruption Act,1988), Jhabua whereby the non-applicants have been acquitted from the charges under sections 7 & 13(1)(d) read with section 13(2) & 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act').

2. As per the prosecution story, in the year 2011-12 in Gram Panchayat Chikliya, Janpad Panchayat, Dandla, District Jhabua the construction work of (i)District Jhabua -2- MCRC No.2858/2017 Community Bhawan estimated cost of Rs.4.65 lakhs,(ii) water tank estimated cost of Rs.4.99 lakhs and (iii) village warehouse building estimated cost of Rs.4.98 lakhs were going on and the non-applicant No.1 being the Chief Executive Officer of the Janpad Panchayat Dandla was the in-charge of supervision and release of fund for the aforesaid work. At the relevant point of time the non-applicant No.2 was working as Peon in the office of non-applicant No.1. At the relevant point of time Smt.Havlibai w/o Partha Muniya was the Sarpanch of the Gram Panchayat, Chikliya. On 04.09.2012 her husband Shri Partha Muniya ( here in after referred as 'complainant') made a written complaint in the office of S.P Lokayukt alleging that the aforesaid construction works have been completed and for the purpose of measurement by Sub Engineer and release of the third and final installment of the total cost of construction the non- applicant No.1 was demanding bribe of Rs.45,000/- from him, he has already given a sum of Rs.10,000/- to him under pressure, however, he does not want to give him bribe amount and wants to caught hold him while taking bribe. The S.P Lokayukt has handed over the case to Yuvraj Singh Chouhan, Inspector, who gave the complainant a voice recorder in order to record the conversation of demand of bribe by the non-applicant No.1. On 05.09.2012 Constable Satish Bara was sent along with the complainant in the office of Janpad Panchayat, Dandla but they could not meet him as he was busy in meeting. Thereafter on 06.09.2012 at about -3- MCRC No.2858/2017 10-10.30 A.M they visited the house of non-applicant No.1 but the complainant alone entered inside the house and recorded the conversation with non-applicant No.1. According to the complainant he called him in his office on 07.09.2012 for payment of Rs.20,000/- as illegal gratification. The complainant handed over the voice recorder to the Inspector Yuvraj Singh Chouhan. He heard the conversation and obtained a second written complaint from the complainant. He called Panch witnesses viz.Anil Mishra, Assistant District Excise Officer, Indore and S.K.Jain, Assistant District Excise Officer, Indore. Both the applications were read over to the complainant in presence of above two witnesses and they all heard the conversation recorded in the voice recorder and thereafter took a decision to organize a trap. The complainant was asked to arrange currency of Rs.20,000/- and after providing the currency of Rs.20,000/- of different denominations it was prepared by applying phenolphthalein powder. The complainant kept the tainted currency in his pant pocket and he was asked not to shake the hand with the accused/non-applicant No.1 before handing over the bribe money. He was also instructed to switch on the recorder to record the conversation. After explaining all the necessary procedure the trap team was formed comprising of S.L Kataria DSP & G.S.Sharma DSP, Satish Bara, Ravindra Tripathi, Anil Chouhan, Head Constable Vijay Shinde & Arvind Tripathi, Constable Satish Bara, Ram Swaroop & Subhash Mishra. As per the schedule -4- MCRC No.2858/2017 they reached the office of Janpad Panchayat at 1.30 P.M and the complainant alone went inside the office. According to the prosecution story the complainant went inside the chamber of non-applicant No.1 who demanded the bribe money and the complainant gave tainted money to non- applicant no.1,which he handed over to his Peon i.e. non- applicant No.2, who kept it in the shirt pocket. Soon after the complainant came outside and gave a signal to the trap team and they immediately entered into the chamber of non- applicant No.1 .Head Constable Arvind Tripathi caught hold the wrist of non-applicant No.1 and on his disclosure about handing over the bribe money to non-applicant No.2 Constable Subhash Mishra caught hold the wrist of non- applicant No.2 Jitendra. In the meanwhile all the members of the trap team came inside the chamber of non-applicant No.1 and gave their introduction and completed the necessary formalities of investigation. The fingers of both the hands the non-applicants were dipped in the solution of sodium carbonate, which turned into pink colour. The shirt of non-applicant No.2 was also dipped into the solution which too turned into pink colour. The tainted money and colour solution were kept in sealed packet and the remaining proceedings were concluded. After obtaining necessary approval from the competent authority for persecution of the non-applicants Final Report was filed on 30.04.2013. By order dated 18.07.2013 learned Special Judge (PC Act) has framed the charges under sections 7, 12 & 13(1)(d) read with -5- MCRC No.2858/2017 section 13(2) against non-applicant No.1 and charges under sections 7 & 13(1)(d) read with section 13(2) of the PC Act against non-applicant No.2. Both the accused abjured the guilt and pleaded for trial.

3. Before the Special Judge the non-applicants No.1 took the defence that he has been falsely implicated because in Gram Panchayat Chikliya the complainant Partha Muniya being the ex-Sarpanch and his wife Smt.Havlibai being the present Sarpanch have committed various financial irregularities and he recommended for punitive action against them under section 40 of the M.P Panchayat Raj Evam Gram Swaraj Adhiniyam (hereinafter referred to as 'the Panchayat Act') and the proceedings are pending before the SDO. As per the scheme of the Central Government full and final payment of construction work was to be made in 3 installments after due verification and valuation of the complete work done. The first installment was paid after preparation of the lay-out, the second installment was released after some progress in the work and the third installment was liable to be released after verification of complete construction work and valuation by the Sub Engineer. Before the complaint no application from the Panchayat was pending before non-applicant no.1 for release of the third installment, therefore, the question of demand of illegal gratification does not arise. The wife of the complainant Smt.Havlibai, Sarpanch on the basis of forged documents withdrawn the amounts of farmers payable under -6- MCRC No.2858/2017 the head of construction of well. She has also committed irregularities in the distribution of diesel pumps and bullock carts to the beneficiaries. The non-applicant No.1 took action against Smt.Havlibai and recommended for her removal. After receipt of notice on 03.09.2012 she purchased four diesel pumps worth Rs.80,000/- from her own money and distributed to the beneficiaries and on 3.4.2012 and on the next day i.e. 04.09.2012 the complainant has made a false complaint against the non-applicant No.1. The non-applicant No.2 has pleaded that he has been falsely implicated as there is no allegation about demand of bribe. The complainant is a well-qualified and experienced politician and the non-applicants have unblemished service record. They have never demanded any bribe from the complainant.

4. On the basis of material available in the case diary, the Special Judge has framed six issues for adjudication. In order to prove the charges against non-applicants, the prosecution examined Constable Satish Bara (PW/1), Naresh Damor, Asst. Grade-II, Janpad Panchayat Dandla (PW/2), Anil Mishra, Asst. District Excise Officer, Indore (PW/3), Dilip Singh Singad (PW/4), Ravindra Tripathi, Constabale (PW/5), Smt.Havlibai, Sarpanch (PW/6), Anwar Khan, Sub- Engineer (PW/7), Partha Mungiya, complainant (PW/8), Asha Sonkar, Inspector (PW/9) and Yuvraj Singh Chouhan, Inspector (PW/10). In defence non-applicant No.1 7 2 have -7- MCRC No.2858/2017 denied the charges. The non-applicant No.1 has recorded his statement in detail under section 313 (5) of the Cr.P.C.

5. After evaluating the evidence came on record learned Special Judge has held that the audio file produced in the form of compact disk in respect of conversation between the complainant and non-applicant No.2 is inadmissible in evidence for want of compliance of section 65-B of the Indian Evidence Act. In respect of allegation of demand of bribe by non-applicant no.1 learned Special Judge has held that it has not been proved on the basis of direct as well as circumstantial evidence by prosecution. The prosecution has failed to prove the presumption under section 20 of the PC Act against the non-applicants in respect of possession of the bribe money. The non-applicants have proved that the payment could not be made because of incomplete construction work and no application was pending in his office for release full and final amount. They have also proved that complainant and his wife had a motive for their false implication as at the instance of the non-applicant no.1 she had to distribute the diesel pumps worth Rs.80,000/- on 03.09.2012 and the non-applicant No1 has also initiated a proceeding of removal of wife of the complainant as Sarpanch of the Gram Panchayat. Vide judgment dated 28.12.2016 learned Special Judge (PC Act) has acquitted both the non-applicants from all the charges. Being aggrieved by the aforesaid judgment Special Police -8- MCRC No.2858/2017 Establishment (Lokayukt) has filed the present application seeking leave to file appeal against the judgment of acquittal.

6. Shri R.S.Raghuvanshi, learned counsel appearing on behalf of the applicant/prosecution submitted that the prosecution has successfully proved the demand, acceptance and possession of illegal gratification by the non-applicants. All the witnesses examined by the prosecution have categorically proved all the charges against the non- applicants. The non-applicants have failed to give any explanation in respect of Rs.20,000/- found in their possession. Even if the contents of audio file in CD could not be proved for want of certificate under section 65-B of the Evidence Act but the transcript and from the other evidence the prosecution has proved the motive and the demand and acceptance of bribe money, therefore, by virtue of section 20 of the PC Act it is legally presumed that the non-applicant no.1 has committed the offences under sections 7, 12 & 13(1)(d) read with section 13(2) and non- applicant No.2 has committed offences under sections 7 & 13(1)(d) read with section 13(2) of the PC Act. It is settled principle of law that the presumption under section 20 of the PC Act is a compulsory legal presumption. The Panch witnesses Anil Mishra (PW/3) and Investigating Officer Yuvraj Singh Chouhan (PW/10) have fully supported the prosecution case regarding factum of demand and acceptance of bribe money and its recovery from their possession. The non-applicants have failed to rebut the presumption by -9- MCRC No.2858/2017 leading evidence, therefore, they have wrongly been acquitted, hence leave be granted for filing appeal against the judgment of acquittal.

7. Shri M.I Ansari, learned counsel appearing on behalf of the non-applicants has argued in support of the impugned judgment and prayed for rejection of the application seeking leave to appeal. He submitted that the scope of interference by the High Court in respect of judgment of acquittal and re- appreciation of evidence is not permissible. From the evidence came on record it has been established that the complainant being ex-Sarpanch of Gram Panchayat Chikliya has falsely implicated the non-applicant No.1 as he took action against his wife and present Sarpanch under the provisions of the Panchayat Act. The complainant being the ex-Sarpanch of the Gram Panchayat had no authorisation to enter into negotiations with non-applicant No.1 for release of full and final amount of construction work to the Panchayat, hence prayed that leave be refused and application be dismissed.

8. I have considered the arguments advanced by learned counsel for the parties and perused the record.

9. Prosecution set into motion on the basis of the complaint (Ex.P/4) submitted by the complainant Partha Muniya on 04.09.2012 in the office of the S.P, Especial Police Establishment: Indore (commonly known as 'Lokayukt' ). In the complaint he has mentioned that the aforesaid 3 construction works are going on under the IDDP -10- MCRC No.2858/2017 Scheme of central Government in the Gram Panchayat Chikliya and the work is at the stage of completion. The Sub Engineer has made a measurement of the work and the balance amount of Rs.4 lakh is liable to be released by the CEO, Janpad Panchayat, Dandla for which he was demanding Rs.45,000/- as bribe. It is further disclosed that he has already paid a sum of Rs.10,000/- to him in advance under pressure but in the complaint he did not give any details like date and time of such payment of the said amount. The complaint also did not disclose under which authority or post in the Gram Panchayat he requested the CEO, Janpad Panchayat, Dandla for release of the 3rd installment of the payment, as under the Panchayat Act either the Sarpanch or the Secretary of the Gram Panchayat is the competent authority to make any correspondence on behalf of the panchayat. On the basis of the status of ex- Sarpanch or the husband of the present Sarpanch he had no authority to pursue the matter regarding release of 3 rd installment. On the basis of the complaint made by the ex- Sarpanch, the S.P, Lokayukt has registered a complaint and authorized the Inspector Yuvraj Singh Chouhan for investigation in the matter who handed over a voice recorder to the complainant in order to record the conversation for verification of said demand of bribe. Although the prosecution has failed to prove the conversation between the complainant and non-applicant No.1 in respect of demand of Rs.20,000/- as bribe by submitting a certificate under section -11- MCRC No.2858/2017 65-B of the Indian Evidence Act but the prosecution has prepared the transcript of the said conversation and produced it as Ex.P/19. As per the contains of transcript conversations also the complainant himself was offering a sum of Rs.15,000-20,000/- to the non-applicant No.1 and therefore, there was no clear demand of bribe by non-applicant No.1 from the complainant . In cross examination in para-43 the complainant has admitted that he himself gave an offer of Rs.15,000/- but the non-applicant No.1 has stated that he never accepts the money. From the said conversation it is apparent that the complainant was trying to allure the non- applicant No.1 so as to falsely implicate him. Initially, he offered a sum of Rs.15,000/- and thereafter he himself said that he would pay Rs.20,000/-.The conversation is also not clear as there are lots of disturbance in recording like noise of horn and rains. The non-applicant no.1 took a specific defence that he has been falsely implicated as he took punitive action against the present Sarpanch of Gram Panchayat i.e. wife of complainant. The complainant entered into the witness box as PW/8. In his cross examination he has admitted that for getting the first installment the Gram Panchayat made a representation to the non-applicant No.1 and after valuation of the work by the Sub-Engineer the application was given to the CEO for release of the second installment. The application was signed by his wife being the Sarpanch and the file was moved by Naresh Damor, the Asst. Grade-II, Janpad -12- MCRC No.2858/2017 Panchayat, Dandla and the CEO gave a cheque of the second installment. He has also admitted that for release of the 3 rd installment no application was given to the non-applicant No.1 as at the relevant point of time the construction works were not complete. He has also not given any date of meeting with the non-applicant No.1. The complainant being ex-Sarpanch was very much aware about the procedure under the scheme for release of the fund by the Janpad Panchayat to concerned Gram Panchayat. He has also admitted that non-applicant No.1 gave various notices under section 40 of the Panchayat Act to his wife alleging various minor irregularities in the work of Gram Panchayat and on the basis of information provided by non-applicant No.1 the SDO issued various notices to his wife. He has also admitted that at the instance of the non-applicant No.1 his wife had to distribute the diesel pumps and bullock carts to the beneficiaries .After receipt of the notices she purchased the diesel pumps from her own money and distributed on 03.09.2012 and at that time the non-applicant No.1, MLA and other public representatives were present and thereafter on the second day he made a complaint on 04.09.2012 In view there was enough material before the Special Judge to come to a conclusion that there was a motive with the complainant for false implication of non-applicant No.1.

10. Prosecution has also examined the wife of complainant Smt.Havlibai, who is present Sarpanch as PW/6. In her deposition she has admitted that being less educated she only -13- MCRC No.2858/2017 knows how to sign the documents. The complaint (Ex.P/22) was written by her husband in which she has only signed. She has also admitted that along with sanction of the construction work grant was also released for distribution of diesel pumps and bullock carts to the beneficiaries belonging to the Scheduled Tribe community and there was irregularity in the distribution of diesel pumps and bullock carts for which a complaint was made against her and non-applicant No.1 vide notices dated 01.10.2011, 11.11.2011, 03.12.2011 & 08.02.2012 sought explanation from her. She has also admitted that her husband used to look after the work of the Panchayat. She has also admitted that on the basis of the complaints made to the Chief Minister, non-applicant No.1 had issued a notice to her. She has also admitted about the initiation of proceedings under section 40 of the Panchayat Act against her, by non-applicant No.1. She has also admitted that she put the undue pressure on non-applicant No.1 for closure of enquiry against her and her husband. She has also admitted that she purchased the diesel pumps from her own money and distributed to the beneficiaries on 03.09.2012 and on the next date i.e. 04.09.2012 her husband made a complaint against the non-applicant No.1. Her husband was annoyed because the non-applicant No.1 used to give notices to her repeatedly. She has also admitted that we wanted to remove the non-applicant No.1 from his post that is why her husband made the complaint to SP Lokayukt. She has also admitted that before completion of work the -14- MCRC No.2858/2017 final payment cannot be released and no such application has been made to the CEO for release of the 3rd installment. It is clear from the evidence of PW/6 & PW/8 that there was an ulterior motive behind the false implication of non-applicant No.1. It is also clear that at the relevant point of time neither the construction work of the Panchayat was complete nor any representations or applications from the Panchayat were pending before the non-applicant No.1 for release of the 3 rd installment. The secretary of the Panchayat or the Sarpanch are only authorized to submit a representation for release of the fund and the not the complainant being an ex-Sarpanch, therefore, there was no occasion for the non-applicant No.1 to demand and accept bribe from the complainant, hence no interference is called for in respect of the findings recorded by the learned Special Judge.

11. In the case of Mukut Bihari and another vs. State of Rajasthan reported in 2012 11 SCC 642 the Apex Court has held that demand of illegal gratification is sine qua non for constituting an offence under the PC Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Para-11 of the judgment is reproduced below:

-15- MCRC No.2858/2017
11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the PC Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to established with reasonable probability that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the Court may look for independent corroboration before convicting the accused person.
12. The aforesaid view has been followed in the case of V.Sejappa vs. State 2016 AIR (SC) 2045. Para-18 of the judgment is reproduced below:
18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery -16- MCRC No.2858/2017 of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act.
13. In the case of P Satyanarayana Murthy vs. Dist.

Inspector of Police and another reported in AIR 2015 SC 3549 the Apex Court has held that the proof of demand of illegal gratification is the gravamen of the offence under sections 7 & 13(1)(d)(i)&(ii) of the PC Act and in absence thereof unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the PC Act. Paras-18, 19, 20 & 22 are reproduced below:

18. This Court in A.Subair vs. State of Kerala, 2009 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
19. In State of Kerala and another vs. C.P Rao, 2011 6 SCC 450, this Court, reiterating its earlier dictum, vis-a-

vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B.Jayaraj in unequivocal terms, tht mere possession and recovery of currency notes from -17- MCRC No.2858/2017 an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.

14. Learned counsel appearing for the prosecution has strongly pressed on the point that the tainted amount was found in possession of the non-applicant No.2 in the office of non-applicant no.1. According to the complainant, on 07.09.2012 he entered into the chamber of non-applicant No.1 but due to anxiety he forgot to switch on the voice recorder, he handed over the tainted money in the hands of non-applicant No.1 who immediately gave it to non- applicant No.2 and he kept it in his pocket. Thereafter he came out from the chamber and gave a signal to the members of the trap team. The defence of the non-applicants -18- MCRC No.2858/2017 is that the complainant entered into the chamber of non- applicant No.1 and without any conversation and demand he kept the amount on the table and immediately left the chamber he called non-applicant No.2 and directed him to return it to the complainant. When he was about to return the amount to the complainant the trap team members came inside the chamber and caught hold both of them. The defence taken by the non-applicants has to be examined along with the allegation of demand of bribe. From the discussion in the aforesaid paragraphs it is clear that there was no demand of bribe by the non-applicants and the complainant was trying to falsely implicate the non-applicant No.1, therefore, the defence taken by the non-applicant No.1 is a plausible one which can be accepted. The complainant alone entered inside the chamber of non-applicant no.1 and accept him no one gave evidence about acceptance of the tainted money by the non-applicant no.1 .As per above findings the complainant is unreliable witness, his bonafides are not clear & he wanted to implicate the non-applicant no.1 hence his testimony cannot be accepted for proving the demand and acceptance of bribe by the non-applicant no.1. The prosecution has failed to prove that the presumption under section 20 as held by the Apex Court in the aforesaid judgments that mere possession of the tainted money without there being any demand cannot constitute an offence under the PC Act. The tainted money was found in the pocket of non-applicant No.2 who has never made any demand from -19- MCRC No.2858/2017 the complainant, therefore, mere possession of the tainted money by non-applicant No.2 cannot constitute the offences against both the non-applicants. In the case of Girja Prasad vs. State of M.P (2007) 1 SCC 625 the Apex Court has held that once it is proved that the amount has been received by the accused presumption under section 20 of the PC Act would get attracted but the same is rebuttable by the accused by leading evidence.

15. As discussed above, no application was pending before the non-applicant No.1 for release of the 3 rd installment for payment of the construction work in the Panchayat. As per complaint and the evidence of PW/6 & PW/8 at the time of making complaint on 04.09.2012 neither the said construction works were complete nor the valuation report was submitted by the Sub-Engineer in respect of completion of the work, therefore, there was no occasion for the non- applicant No.1 to make a demand for illegal gratification. Apart from that two installments were already released by the non-applicant No.1 as per the scheme after submission of the valuation report by the Sub-Engineer, therefore, there cannot be any presumption that for release of the final payment non-applicant No.1 would demand the illegal gratification when there is no allegation that at the time of release of the first and second installments he did make any demand for illegal gratification. The prosecution has examined Naresh Damor (PW/2), who was looking after the work of Janpad Panchayat and he admits that no such -20- MCRC No.2858/2017 application for release of the 3rd installment was pending in the Janpad Panchayat and at the time of complaint to the Lokayukt all the three construction works were not complete, hence at that stage the Janpad Panchayat was not liable to release the fund to the Panchayat. The non- applicant No.1 in his defence has examined two witnesses viz. Maheshchand Patidar (DW/1), the Tribal Development Project Officer, Jhabua at the relevant point of time, to establish that the complainant was interested in releasing the balance amount before completion of the construction work and from 04.09.2012 to 07.09.2012 the non-applicant No.1 was not liable to make the payment to the Panchayat. It has also been established that at the relevant point of time number of complaints were pending against PW/6 & PW/8 in the Panchayat at the instance of non-applicant No.1 and on 03.09.2012 i.e. one day before the date of filing of complaint the wife of the complainant had to purchase diesel pumps worth Rs.80,000/- for distribution to the beneficiaries and that was done after issuing notices by the non-applicant No.1, therefore, the non-applicant No.1 has successfully discharged the burden by establishing that he has been falsely implicated in the trap with ulterior motive, hence the non-applicant No.1 has rightly been discharged by the learned Special Judge.

16. In the case of Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211, the Apex court has accepted the -21- MCRC No.2858/2017 similar defence setup by the accused. Paragraphs-24 & 25 of the said judgment read as under:

24. Even otherwise, the defence of the accused was more probable and therefore it should be accepted. It was one of the defence of the appellant that because of starting a criminal case against the complainant, the trap case was initiated by the Vigilance Department at the instance of the complainant. It is not in dispute that a complaint at the instance of the appellant was made against the com-

plainant and another for alleged theft of electricity and the complainant was found guilty which was however set aside in appeal. In the background of this fact and other circumstances as noted hereinearlier can it not be said that the defence case was more probable than that of the prosecution case and that in the facts and circumstances and evidence on record the defence case must be ac- cepted. The aforesaid dramatic case was initiated by the Vigilance Department at the instance of the com- plainant. On consideration of the entire materials on record and in view of our discussion made hereinabove, we are therefore of the view that courts below includ- ing the High Court had acted in a manner which was not warranted and the defence of the accused-appellant was probable and therefore no conviction could be made against the accused-appellant.

25. We are also of the view that it is more probable that in order to put the appellant into trouble in his service the trap case was initiated by the Vigilance Department at the instance of the complaint filed by the complainant because of the fact that a criminal case was initiated by the appellant against the complainant for theft of elec- tricity. Therefore, we must hold that in view of the dis- cussions made hereinabove the judgments and orders of the court below are liable to be set aside on the ground that such findings of fact and appreciation of evidence are vitiated as the evidence adduced by the prosecution fell short of the test of reliability and acceptability, and, as such, it was highly unsafe on the part of the courts be- low to act upon it. For the reasons aforesaid, we set aside the judgment of the High Court as well as of the Special Judge and exonerate the appellant from the charges found against him.

-22- MCRC No.2858/2017

17. In the case of T. Subramanian v. State of T.N., re- ported in (2006) 1 SCC 401, the Hon'ble the Supreme Court of India has upheld the findings of acquittal given by the trial court. The Apex Court has held as under:

16. The High Court did not consider the explanation of-

fered by the appellant for the receipt of the money nor the previous enmity harboured by PW 1, PW 2 and PW 6 to- wards the appellant. Nor did it hold that the decision of the trial court was erroneous or perverse. Reappreciating the very evidence (on which the trial court had reached the conclusion that the payment was not by way of an il- legal gratification but was towards lease rent due by PW 6 and paid through PW 1), the High Court relying on the evidence of PW 1, PW 2 and PW 6 concluded that the payment was by way of illegal gratification. In particu- lar, it relied on the denial by PW 6 that he had sent any amount through PW 1, against the appellant. But the mere denial by PW 6 that he had sent the money through PW 1 cannot be a ground to hold the appellant guilty. If PWs 1, 2 and 6 had hatched a conspiracy to involve the appellant in a criminal case, naturally PW 6 would deny having sent the amount through PW 1. The explanation given by the appellant immediately after the incident clearly explains all the circumstances and raises not only a reasonable but very serious doubt about the amount having been received by him as illegal gratification.

17. The evidence throws out a clear alternative that the accused was falsely implicated at the instance of PWs 1, 2 and 6. If two views were possible from the very same evidence, it cannot be said that the prosecution had proved beyond reasonable doubt that the appellant had received the sum of Rs 200 as illegal gratification. We are, therefore, of the considered view that the trial court was right in holding that the charge against the appel- lant was not proved and the High Court was not justified in interfering with the same.

18. We, therefore, allow this appeal, set aside the order of the High Court and restore the order of the trial court, acquitting the appellant of the charge.

-23- MCRC No.2858/2017

18. So far the acquittal of non-applicant No.2 is concerned, there is absolutely no allegation against him regarding demand of bribe and as per the prosecution story after acceptance of the tainted money by non-applicant No.1 he handed it over to non-applicant No.2, who was the only Peon in his office. Even otherwise, there is no charge of section 120-B IPC against both the non-applicants, hence he has also rightly been discharged by the learned trial Court.

19. In this case, there is no ground to interfere with the findings recorded by the learned Special Judge in the impugned Judgment . If leave is granted then the appeal filed by the applicant S.P.E. shall not succeed .Consequently, the application is dismissed and leave is refused.

Copy of this order be sent to the trial court along with the record for information.




                                            (VIVEK RUSIA)
                                               JUDGE
             Digitally signed by Hari Kumar
             Nair
hk/          Date: 2020.01.06 19:12:56 +05'30'