Madhya Pradesh High Court
Dr.Ashok Nayak vs The State Of M.P on 4 July, 2011
Author: Rakesh Saksena
Bench: M.A. Siddiqui, Rakesh Saksena
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No.2565/1997
Dr. Ashok Nayak, son of late Ratan
Chandra Nayak, aged 40 years,
Lecturer in Neurology, Gandhi
Medical College, Bhopal (M.P.).
versus
The State of Madhya Pradesh.
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For the appellant: Shri S.C. Datt, Sr. Advocate with
Shri Siddharth Datt, Advocate
For the Resp./State: Shri Aditya Adhikari, Special Public Prosecutor, for
S.P.E. Lokayukta.
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PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE M.A. SIDDIQUI
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Date of hearing: 23/06/2011
Date of Judgment: 04/07/2011
JUDGMENT
Per: Rakesh Saksena, J Appellant has filed this appeal against the judgment dated 2nd December 1997, passed by Special Judge, Bhopal, in Special Case No.4/1996, convicting the appellant under Section 7 read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and sentencing him to rigorous imprisonment for one year with fine of Rs.2000/-. In default of payment of fine, simple imprisonment for three months.
2. The allegation against the appellant is that when he was posted as Lecturer in Gandhi Medical College, Bhopal, he demanded Rs.500/- from complainant Prem Singh for issuing fitness certificate to him and for passing his medical bill.
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3. In short, the prosecution case is that complainant Prem Singh, who was working as Lineman in M.P. Electricity Board at village Dhuna, district Sehore, went to recover the dues from the consumers. He was assaulted by some persons, as a result of which he suffered serious injuries. For the treatment, he was admitted in Hamidiya Hospital, Bhopal. He remained under treatment of appellant, who was posted as a Lecturer in Neurology in Gandhi Medical College/Hamidiya Hospital, Bhopal. On 9.4.1993, he was discharged from the Hospital. Since he was not completely cured, on 22.4.1993 he met appellant at his residence. On 10.6.1993, appellant obtained Rs.200/- from him for his check up. When he requested appellant to issue a fitness certificate to him, he demanded Rs.500/- as bribe. Complainant (PW-4) then went to Lokayukta Office, Bhopal and presented a written complaint (Ex.P/3) to Superintendent of Police (Lokayukta) expressing his grievance that appellant was demanding Rs.500/- as bribe for issuing fitness certificate and for passing bills of medicines. The said complaint was marked to Inspector Saligram Sankhedia (PW-7), who requisitioned the services of witnesses S.A. Zaidy (PW-2) and Pramod Sharma (PW-5), both officers in Small Savings Department, who verified from complainant of having made the said complaint. Inspector Sankhedia registered the FIR (Ex.P/22) and after obtaining five currency notes of 100/- denomination, applied the phenolphthalein powder on them and made the complainant and other witnesses to understand the trap proceedings. He prepared a preliminary Panchnama (Ex.P/4) in this regard. Thereafter, during the trap proceedings, on receiving signal from the complainant, Inspector Sankhedia and other members of the trap party recovered tainted currency notes from the pocket of appellant. Hands of complainant and the appellant were washed with sodium carbonate solution, which turned pink. Certificates of unfit and fitness were seized and trap Panchnama (Ex.P/12) was recorded. 3
4. After further investigation and obtaining sanction from the Department of Law and Legislative Functions, charge sheet was filed.
5. Learned Special Judge framed the charges under Section 7 read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.
6. Appellant abjured his guilt and pleaded false implication. According to him, because of misunderstanding that appellant was making his case weak, complainant concocted a false story of demand of bribe. Neither he conducted the operation of complainant nor he discharged him. From 22.4.1993 to 16.6.1993 complainant visited his clinic privately for his medical examination and treatment five times. He obtained Rs.500/- from the complainant on 19.6.1993 towards his fee, which he was legally entitled to accept. Since complainant had not paid the fees in the past, therefore, he made the cumulative payment of Rs.500/- for five visits. He had already issued unfit certificate to him for two months on 22.4.1993. After completion of two months, he had issued fitness certificate to him on 19.6.1993. As per the statement of appellant under Section 313 of the Code of Criminal Procedure, he maintained a register (Ex.D/1) in which the visits of the patients and the account of fees was entered. Appellant produced the register (Ex.D/1) and certificate books (Ex.D/2 and D/3) and also examined Surendra Singh in defence as DW-1.
7. Learned Special Judge, after trial and upon appreciation of evidence adduced in the case, held the appellant guilty and convicted and sentenced him as aforesaid by the impugned judgment, which has been challenged in this appeal.
8. We have heard the learned counsel for the parties.
9. Learned counsel for the appellant submitted that the learned Special Judge has misappreciated the evidence on record. It was not disputed that 4 appellant accepted Rs.500/- from complainant (PW-4), but it was not by way of bribe or illegal gratification; it was towards the dues of fees, which appellant was legally entitled to receive. Appellant had immediately, at the time of alleged trap, disclosed to prosecution witnesses the said fact. Learned Special Judge committed error in not accepting the explanation given by appellant immediately after the trap and also in the trial. According to him, the evidence of complainant about the demand of bribe was not reliable, as it suffered with infirmity of inconsistencies, discrepancies and material omissions. He placed reliance on Aher Raja Khima v. State of Saurashtra-AIR 1956 SC 217(1), Punjabrao v. State of Maharashtra-AIR 2002 SC 486, T. Subramanian v. The State of T.N.-AIR 2006 SC 836, Raghubir Singh v. State of Haryana-AIR 1974 SC 1516, Pannalal Damodar Rathi v. State of Maharashtra-AIR 1979 SC 1191 and Smt. Meena Balwant Hemke v. State of Maharashtra-AIR 2000 SC 3377.
10. On the other hand, learned Special Public Prosecutor for the SPE Lokayukta, submitted that once it was established that appellant voluntarily or consciously accepted the money, there was no further burden cast on the prosecution to prove by the direct evidence the demand or motive on the part of appellant. He submitted that conviction of appellant was also justified due to statutory presumption under Section 20(1) of the Prevention of Corruption Act. He submitted that the evidence of complainant cannot be discarded because of minor and immaterial discrepancies. He justified the conviction of appellant recorded by the trial Court. He placed reliance on M.W. Mohiuddin v. State of Maharashtra-(1995) 3 SCC 567, Pudukottai, T.N. v. A. Parthiban- (2006) 11 SCC 473 and B.Noha v. State of Kerala and another-(2006) 12 SCC 277.
11. Since appellant in his statement under Section 313 of the Code of 5 Criminal Procedure admitted the fact of his accepting Rs.500/- from the complainant Prem Singh (PW-4), therefore, there remains no dispute about the proof of acceptance of money. Complainant (PW-4) though deposed that when he went to the house of appellant for obtaining fitness certificate, he told to him that since he became late, he would have to pay additional Rs.200/-. He then borrowed Rs.200/- from his friend Bhagirath, who accompanied him, and paid total Rs.700/- to appellant, but the appellant in his statement under Section 313 of the Code of Criminal Procedure stated that he received only Rs.500/- from the complainant, but, during the trap, Rs.300/- more were seized from him. Though Rs.300/- belonged to him, but inspector gave him back Rs.100/- only. The evidence of appellant stands corroborated from the evidence of trap witnesses S.A. Zaidi (PW-2) and Pramod Sharma (PW-5). S.A. Zaidi (PW-2) deposed that complainant told to him that he had given Rs.200/- in addition to Rs.500/- to appellant. Similar was the evidence of Pramod Sharma (PW-5), though he stated that Prem Singh (PW-4) had given only Rs.500/- to appellant.
12. Learned counsel for the appellant submitted that about handing over of the money to appellant there was only evidence of complainant (PW-4). No other witness saw the handing over of the money. According to prosecution, though Bhagirath accompanied complainant as a shadow witness, but he was not produced in the court. He submitted that the evidence of complainant as a sole witness of transaction of handing over the money to accused was not reliable. He cited case of Raghubir Singh (supra) wherein the Apex Court observed that in a bribery case payer's testimony carries little conviction in the absence of re-assuring support. In case of Pannalal Damodar (supra) while examining the evidentiary value of the evidence of complainant, the Apex Court observed that complainant is in no better position than an accomplice 6 and the corroboration of his evidence in material particulars was necessary. In case of Smt. Meena Balwant Hemke (supra) the Apex Court held the evidence of complainant untrustworthy in view of contradictory version of the incident given by him when he was examined in the departmental proceedings and also on the ground that the shadow witness, who accompanied complainant, did not support the prosecution case. Another shadow witness, who first arrived at the spot, was not examined at the trial.
13. With due respect to the above propositions laid down by the Apex Court, we find that the facts of the case at hand are different and distinguishable. Two Panch witnesses viz. S.A. Zaidi (PW-2) and Pramod Sharma (PW-5) were examined in the court and they supported the prosecution case. But, Bhagirath, who is said to have accompanied the complainant from the beginning and who, according to complainant, gave him Rs.200/- at the spot to be paid to appellant, was not examined in the court. In our opinion, at the most, it creates some doubt about the fact of payment of Rs.200/- to the appellant. Be that as it may, the fact remains that appellant admitted that he accepted the tainted five currency notes of Rs.100/- denomination from the complainant.
14. In the above circumstances, the main question before this Court for deciding the guilt of appellant would be, whether the appellant accepted or obtained the aforesaid sum from the complainant (PW-4) by way of illegal gratification for issuing the fitness certificate to him and for passing his medical bills. The defence of the appellant was that the complainant had concocted a false story of demand of bribe by him because of some misunderstanding that under some political influence he was making his criminal case weak. Neither he admitted complainant nor performed any operation on him. Even he did not discharge him from the hospital. Complainant visited him five times from 7 22.4.1993 to 19.6.1993. In the beginning, he issued unfit certificate to him and advised rest for two months. On 19.6.1993, when two months completed, he issued fitness certificate to him. In the very beginning he had informed the complainant about the fees to be charged by him. He charged Rs.100/- per visit. In view of the request of the complainant that he had no money, in the beginning, he did not force him to pay his fees at each visit, but he asked him to pay his fees on 19.6.1993. According to appellant, he had maintained a register in which he maintained record of the visits of the patients and the fees charged from them. He had made entries therein about the visits of complainant also. Inspector S.R. Sankhedia (PW-7) had taken the said register from him on the day of incident, but did not formally seize it. He then obtained the said register back from him after making application in the Lokayukta Office.
15. Learned Special Public Prosecutor submitted that in Mohiuddin (supra), in the context of word "obtains the pecuniary advantage" in Section 7 and 13(d) of the Prevention of Corruption Act, the Apex Court held that once the accused comes into possession of the tainted money, the only inference is that he accepted the same and thus 'obtained' the pecuniary advantage. In our opinion, the above proposition pertained to a particular situation under which it could be held that the accused came to hold and/or came in control of the tainted money. It has further been explained by the Apex Court in Para-7 of the decision that whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances in each case. In the case of Mohiuddin (supra), it was proved that the accused made a demand and also got the affirmation from other witness that he had brought the demanded money. In case of Surajmal 8 v. State (Delhi Administration)-AIR 1979 SC 1408, the Apex Court held that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when substantive evidence in the case is not reliable. In case of A. Parthiban (supra), the Apex Court held that every acceptance of "illegal gratification"
whether preceded by a demand or not, would be covered by Section 7 of the Act, but if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the Act. In case of B. Noha (supra), the Apex Court held that when it is proved that there was voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case, but in Paragraph-11 of the same decision the Apex Court clarified that there was no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW-1. When an amount is found to have been passed to public servant, the burden is on public servant to establish that it was not by way of illegal gratification. Thus, from the above propositions, it appears essential to examine whether appellant received, accepted or obtained the money by way of illegal gratification or bribe.
16. Prem Singh (PW-4) stated that operation of his head was done in Hamidiya Hospital, but it was not done by the appellant. According to him, on the 9th day he was discharged from the hospital by the appellant despite the fact that his condition was not good. When he went to the house of appellant for further examination, he demanded Rs.1000/- for the operation done in the hospital. He had given Rs.400/- to him. Once again he had paid Rs.200/- to him for his visit. When he asked for fitness certificate, appellant demanded 9 further Rs.500/-. Since he did not want to give money to appellant, he made a complaint in the Lokayukt Office. During the trap, appellant demanded Rs.700/-, therefore, he obtained Rs.200/- from his colleague Bhagirath and paid the same alongwith Rs.500/-. Appellant gave fitness certificate to him. In the course of trap proceedings, the said fitness certificate was seized. Complainant admitted that he did not mention in his report (Ex.P/3) that despite his serious condition he was discharged by the appellant. It is significant to note here that appellant in his examination under Section 313 of the Code of Criminal Procedure stated that he did not discharge the complainant from the hospital. Though, according to complainant, the demand of Rs.1000/- for operation and Rs.200/- more in addition to Rs.500/- were demanded by the appellant in presence of Bhagirath, but, to support this version, this important shadow witness Bhagirath was not examined by the prosecution in the Court. Apart from it, the fact that appellant demanded Rs.1000/- for the operation was not mentioned by the complainant in his report (Ex.P/3). Complainant admitted that he visited the house of appellant four times for consultation and on those occasions he did not pay his consultation fees Rs.100/- per visit. Though complainant made accusation against the appellant for having demanded Rs.500/- for passing the medical bills also, but, in the court, he admitted that the aforesaid medical bills were not to be verified by the appellant. He produced the bills in the hospital and they were verified by the doctor, who performed operation. Another important fact disclosed by the complainant is that he had written the report (Ex.P/3) in the office of Lokayukta on the dictation of some officer. He admitted that after planning of trap the aforesaid report was recorded. Initially a report was written, thereafter again, it was corrected and fair report was recorded. Complainant stated that appellant demanded Rs.500/- on 16.6.1993, but this 10 fact was not disclosed by him in his report (Ex.P/3). Complainant admitted that a board was displayed at the house of appellant indicating that his consultation fees was Rs.100/- per visit. He, however, denied the suggestion that appellant disclosed to trap party that he received Rs.500/- towards his visit fees.
17. Except the evidence of complainant (PW-4), admittedly there is no other evidence on record to indicate that appellant demanded Rs.500/- as illegal gratification from him for issuing the fitness certificate. The fact that money was demanded by the appellant for passing medical bills was denied by the complainant, though he mentioned the said fact that in his report (Ex.P/3). It was also established from the evidence of complainant that appellant neither performed his operation nor discharged him from the hospital. The important witness in respect of alleged demand of Rs.500/- as illegal gratification, shadow witness Bhagirath, was not examined in the Court. In these circumstances, the explanation tendered by the appellant assumes importance.
18. According to appellant, complainant consulted and visited his clinic five times i.e. on 22.4.1993, 7.5.1993, 3.6.1993, 10.6.1993 and 19.6.1993. On the last four visits, due to paucity of funds, he did not pay fees. On 19.6.1993 i.e. on the date of incident, when complainant visited last and asked for fitness certificate, he paid Rs.500/- for all the said past visits. He maintained a register (Ex.D/1) in which the entries about the visits of patients including the complainant were recorded. On perusal of Ex.D/1, it is seen that the entries in respect to complainant have also been recorded. It has also been recorded on his each visit entry that payment of Rs.100/-was due. According to appellant, though Ex.D/1 was taken away by Investigating Officer, S.R. Sankhedia (PW-7), but it was not formally seized and it was obtained by the appellant from the office of Lokayukta. Trap witness Pramod Sharma (PW-5) admitted 11 that appellant had shown registers (Ex.D/1 to Ex.D/3) to police, but he did not remember whether those registers were carried away by the police. He also admitted that at the time of incident appellant told that Prem Singh had told to him that he was paying Rs.500/- towards the past visits' fees, therefore,he accepted the same. Another witness S.A.Zaidy (PW-2) admitted that one register and two copies were kept on the table of appellant. Though he did not remember whether the said register and copies were taken away by the police, but he admitted that appellant had told that complainant had given him Rs.500/- towards his fees. Investigating Officer S.R. Sankhedia (PW-7) deposed that at the time of occurrence doctors of Hamidiya Hospital including the appellant were entitled to do private practice. He admitted that appellant told to him that his consultation fees per visit was Rs.100/-. He, however, denied that appellant told to him that complainant paid money to him towards his consultation fees. He also denied that he carried away registers (Ex.D/1 to Ex.D/3) from the clinic of appellant. He, however, admitted that appellant produced the said registers before the Superintendent of Police. Investigating Officer admitted that the treatment and the operation of the complainant was done by the other doctors.
19. The evidence of the aforesaid witnesses supports the evidence of Surendra Singh (DW-1), who deposed that at the time of occurrence he was present in the clinic of appellant, who charged Rs.100/- towards consultation fees from the patients. On the day of occurrence, one person gave recent and past fees to appellant, but, thereafter, police people reached there and caught him. According to him, appellant told that he did not receive bribe, he accepted only his consultation fees. From the entries in the register at Ex.D/1 and the evidence of aforesaid witness it is established that appellant immediately at the time of trap disclosed/explained to the members of the trap party that he 12 accepted money from the complainant towards his consultation fees and that he was entitled to do the private practice. Merely because there appeared difference in the amount of fees received by the appellant from different patients or the fact that he did not charge the fees from some of the patients, in our opinion, it cannot be held that record (Ex.D/1) maintained by the appellant was fabricated and unreliable.
20. In the case of B. Noha (supra), the Apex Court observed that when it is proved that there was a voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. In cases of M. Narsingarao v. State of Andhra Pradesh-(2001)1 SCC 691 and State of Andhra Pradesh v. Kumma Raju Gopal- (2000) 9 SCC 752 Apex Court held that when amount is found to have been passed to public servant, the burden is on public servant to establish that it was not by of illegal gratification. If this burden was not discharged, it was to be presumed that he accepted the money as illegal gratification.
21. Evaluating the nature of explanation offered by the appellant, the Apex Court in case of T.Subramanian (supra) observed that mere receipt of money by the accused from the complainant (admitted by the accused) will not be sufficient to fasten guilt under Section 5(1)(a) or 5(1)(d) of the Act in the absence of any demand and acceptance of amount as illegal gratification. If the amount had been paid as lease rent arrears due to the temple or even if it was not so paid, but the accused was made to believe that payment was towards lease rent due to the temple, he could not be said to have committed any offence. If the reason for receiving the amount is explained and the explanation is probable and reasonable, then the accused had to be acquitted. 13 The Apex Court approved the proposition laid down in the decision of Punjabrao (supra) holding that explanation, though not offered immediately, but given only in the statement under Section 313 Cr.P.C., can also be accepted. It was held that "it is too well settled that in a case where accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as prosecution, but can establish the same by preponderance of probability".
22. In Chaturdas Bhagwandas Patel v. State of Gujrat-AIR 1976 SC 1497 the Apex Court held that burden that rests on an accused to displace the statutory presumption i.e. raised under Section 4(1) of the Prevention of Corruption Act is not onerous as that casts on the prosecution to prove its case. But such burden has to be discharged, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability that money was accepted by him than as a motive or reward as is referred to in Section 161 of IPC. In case of T. Subramanian (supra), Apex Court accepted the explanation given by the appellant immediately after the incident holding that it clearly explains all the circumstances and raises not only a serious but very serious doubt about the amount having been received by him as an illegal gratification.
23. On examining the facts and circumstances of the instant case in the light of the above propositions, we find that it was established that appellant immediately after the incident offered explanation to the members of raiding party that he accepted the money towards his due consultation fees and not by way of illegal gratification for giving fitness certificate to complainant. The appellant reiterated the same defence in his statement under Section 313 of 14 the Code of Criminal Procedure. The above fact was admitted by some of the prosecution witnesses. It also stood corroborated by the register (Ex.D/1) maintained by the appellant to prove that visit fees of complainant was due and the complainant handed over Rs.500/- to him by way of his fees, which he was legally entitled to receive. The explanation offered by the appellant appears genuine, reasonable and probable. Learned Special Judge committed error in not accepting the said explanation. In the above circumstances, we are compelled to hold that prosecution failed to establish beyond doubt that appellant received Rs.500/- from the complainant as illegal gratification as a motive or reward for giving fitness certificate to him.
24. For the aforesaid reasons the impugned judgment of conviction and sentence of appellant under Section 7 read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 passed by learned Special Judge is set aside. Appellant is acquitted. Personal and surety bonds of appellant are discharged.
25. Appeal allowed.
(RAKESH SAKSENA) (M.A. SIDDIQUI)
JUDGE JUDGE
Shukla
15
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No.2565/1997
Dr. Ashok Nayak
versus
State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
/07/2011
Hon'ble Shri Justice M.A. Siddiqui
JUDGE
__/07/2011
POST FOR /07/2011
(Rakesh Saksena)
Judge
__/07/2011