Madhya Pradesh High Court
Ravindra Kumar Ganvir vs The State Of M.P on 21 May, 2010
Author: N.K.Gupta
Bench: N.K.Gupta
(1) Cr.Appeal No.1816/2001
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE N.K.GUPTA
CRIMINAL APPEAL NO. 1816/2001
APPELLANT: Ravindra Kumar Ganvir S/o Bhanudas Ganvir, aged
38 years the then City Superintendent of Police,
Bhopal R/o M.I.G. 74/17 Nehru Nagar, Bhilai (M.P.)
Versus
RESPONDENT: State of Madhya Pradesh
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For the Appellant : Shri S.C.Datt, Senior Advocate with Shri Siddharth Datt, Adv.
For the State : Shri Aditya Adhikari, Advocate.
Date of hearing : 13/05/2010
Date of judgment: 21/05/2010
(J U D G M E N T)
Per: Rakesh Saksena; J,
Appellant has filed this appeal against the judgment dated 31st October, 2001 passed by First Additional Sessions Judge and Special Judge (Prevention of Corruption) Act, Bhopal in Special Case No. 4/1998, convicting the appellant under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 201 of the Indian Penal Code and sentencing him to rigorous imprisonment for three years with fine of Rs. 5,000/-, rigorous imprisonment for three years with fine of Rs. 5000/- and rigorous imprisonment for six months with fine of Rs. 1000/- on each count respectively. All the sentences have been directed to run concurrently.
2. The prosecution case, is that between 26.5.1997 and 31.8.1997 accused/appellant was posted as City Superintendent of Police, Bhopal. Complainant Govind Tolani made complaint to him that he and his brother (2) Cr.Appeal No.1816/2001 Harish Tolani had given their shop to Manoj and Mahesh to run it under `Naukarnama', but they started disputing their title and possession, therefore, he requested him to help him in getting back his shop. Staff of Kotwali summoned to the servants of Govind Tolani. Appellant got the servants of complainant released. Complainant informed to appellant that the injunction application filed by Mahesh in the Civil Court was rejected, therefore, the keys of the shop be returned to him. Appellant told to him that the question of possession of the shop shall be decided by the S.D.M. and the order of Civil Court was of no use, and he demanded a fridge or Rs. 10,000/- from him for favouring him. Complainant gave Rs. 5000/- to him whereupon appellant assured him that he shall give him the key of the shop. Though, appellant instructed his Reader for the same, but Station Officer Kotwali Mr. Bisen refused to hand over the key to complainant and proposed to file 145 Cr.P.C. proceedings. Appellant assured the complainant that his relations with the S.D.M. were very close and he will get the order passed in his favour, but he could not manage to hand over the key of the shop to him. In the meanwhile, Mr. Vyas, the then S.D.M. retired and new S.D.M. Shri S.N.Sharma joined. Again, accused assured the complainant that he would get his work done and demanded Rs. 5000/- for himself and Rs. 10,000/- for S.D.M. Shri Sharma. Tolani felt that even after obtaining money, accused was harassing him with a view to obtain more money as bribe. He recorded his conversation with accused in a cassette and along with written complaint Ex. P/9 submitted it to S.P.E. Lokayukt Office, Bhopal. For verification of the truth of the complaint Superintendent of Police asked Tolani to talk to accused from their official telephone and recorded the conversation. At the same time, Tolani also talked (3) Cr.Appeal No.1816/2001 to S.D.M. Shri Sharma. This conversation was also recorded and transcript Ex. P/13 was prepared. On being satisfied about the genuineness of the complaint, Lokayukt Police registered the First Information Report Ex. P/10 and called two Gazetted Officers viz. Vinay Nigam and Rajendra Singh Thakur for arranging a trap. These witnesses were introduced to complainant Govind Tolani. They verified that he had made the complaint Ex. P/9. A preliminary panchnama Ex. P/15 was drawn. Complainant gave 20 notes of Rs. 500/- denomination totaling Rs. 10,000/-. Number of these currency notes were noted in the preliminary panchnama. Head Constable Om Prakash applied phenolphthalein powder to these currency notes and these notes were then kept in the pocket of pents of complainant. He was instructed to not to touch these notes and to hand over them to appellant and to make a gesture to the trap party after handing over the bribe money to appellant. A mini tape recorder was also provided to him for recording the conversation which may take place at the time of handing over the money. Panch witnesses Rajendra Singh Thakur was also instructed to see all that transpires between the complainant and the appellant. After following the requisite procedure, whereabouts of the accused were traced. It was informed that he was on duty at Ravindra Bhawan. When members of trap party reached Ravindra Bhawan, they came to know that he had left for his office. When complainant went to his office, he came to know that he had gone to his official residence in Officers Mess. Thereafter, complainant along with the trap party went near his quarter and complainant alone went to his quarter no. 128. After remaining inside for about 10 minutes, he came out and gave a pre- arranged signal, whereupon trap party went at his quarter and knocked the door. On door being opened by woman, they entered in the house (4) Cr.Appeal No.1816/2001 and introduced themselves to the woman, who was sister of accused. Panch witnesses and some of the members of the trap party went on the first floor in the room of accused, but they did not find him there. He was in the attached bathroom. They heard the sound of flowing of water from the bathroom. After about 10 minutes, accused came out from bathroom with wet hands, R.S.Solanki and Virendra Singh caught his hands. They prepared a clear solution of sodium carbonate and dipped their fingers in it; the colour of solution remained unchanged, then they dipped the fingers of both the hands of accused in the solution by which the colour of solution changed to light pink. Both the solutions were sealed in the bottles and seized. Fingers of complainant's hands were also washed with a sodium carbonate solution, whereon the colour of solution turned deep pink. On asking about the bribe money, accused denied of having received any money. The clothes of complainant were searched, but the money was not found with him. Complainant told that accused after taking money kept it under the bed sheet and he had then gone out for giving a signal. Despite search of the room, the bed sheet and other places, the money could not be recovered. Though Rs. 24, 500/- were found in the suitcase, but they were different, therefore, they were given back to accused. Since the accused had confined himself in the bathroom for quite some time and had flushed water repeatedly; it was guessed that probably after getting hint, he flushed the bribe money in the commode. Sewage line of the toilet was intact. Since the occurrence had taken place in the night, trap party waited till morning. In the meantime, transcript of the cassette was prepared and seized vide memorandum Ex. P/24. In the morning, the staff of corporation was called. At about 10.00 a.m., with the help (5) Cr.Appeal No.1816/2001 of corporation staff, sewage line was checked. Three chambers constructed within the boundary wall of quarter no. 128 were checked, but currency notes were not found. However, when chamber constructed inside the boundary wall of quarter no.129 was checked the currency notes of bribe money were found lying. The notes were sullied. The place from where money was recovered was photographed. Notes were taken out by the sweepers and were washed and dried. Numbers of the currency notes tallied with the numbers noted in the preliminary panchnama. The bribe money was seized vide seizure memo Ex. P/
6. Spot maps Ex. P/7, Ex. P/25, Ex.P/32 and Ex. P/33 were drawn. Trap memorandum Ex. P/26 was also prepared. In the course of investigation, the record of the complaint made in the Court of S.D.M. and the record of police was seized. After obtaining the sanction from Mr. T.P.Sharma, Additional Secretary, Law and Legislative Department and completion of investigation charge sheet was filed in the Court of Special Judge.
3. Appellant abjured his guilt and pleaded false implication. According to him, complainant Govind Tolani was an informer; since in the dispute of his shop the key of the shop was not returned to him and instead 145 Cr.P.C. proceedings were instituted, he got annoyed and concocted the false story of demand of bribe. He was an honest and obedient Police Officer. He had obtained number of testimonials and awards from the Senior Officers. In his defence, he examined Nirmal Vyas, Photographer (DW1) and Constable Gurudatt (DW2).
4. Prosecution examined 12 witnesses and exhibited 36 documents. Learned Special Judge, after trial and upon appreciation of the evidence adduced in the case held the accused/appellant guilty and convicted and (6) Cr.Appeal No.1816/2001 sentenced him as mentioned earlier. Aggrieved by the impugned judgment, appellant has filed this appeal.
5. We have heard the learned counsel for the parties.
6. It has not been disputed that at the time of occurrence accused was posted as City Superintendent of Police Kotwali, Bhopal. It is further reflected from the evidence of Gaya Singh, Dy. S.P., Bhopal (PW2), who proved the certificate Ex. P/2 in this regard. It is not disputed that appellant was a public servant.
7. Shri S.C. Datt, learned senior counsel for the appellant did not dispute the validity of sanction Ex. P/1 granted by Mr. T.P.Sharma, Additional Secretary Law and Legislative Affairs Govt. of M.P., Bhopal which was proved by Smt. Madhu Peshwani (PW1).
8. Learned senior counsel for the appellant however, submitted that the trial Court gravely erred in placing implicit reliance on the evidence of prosecution witnesses namely complainant Govind Tolani (PW6), Constable Virendra Singh (PW10), Dy. S.P. Ramesh Kumar Soni (PW11), Dy. S.P. Komal Singh (PW12) and Harish Kumar Tolani (PW8). According to him, no demand of bribe was made by appellant and the alleged bribe money was not recovered from the possession of accused. On the contrary, it was recovered from the sewage chamber in which sewage line of other houses also opened. The recovery of the money from the chamber could not be deemed to be from the possession of the accused. He submitted that the learned Special Judge committed error in accepting the evidence of tape recording and its script prepared by the complainant and Investigating Officer. He further submitted that the evidence of complainant Govind Tolani was not reliable because he (7) Cr.Appeal No.1816/2001 was a person of criminal back ground and worked as an informer. Appellant was falsely implicated.
9. Shri Aditya Adhikari, Advocate for the respondent/S.P.E. Lokayukt on the other hand justified and supported the conviction of the appellant.
10. We have gone through the entire evidence on record.
11. Complainant Govind Tolani (PW6) deposed that there was a shop by the name of Vijay Steel House. It was in the name of his elder brother Harish Kumar Tolani. The shop was being run by Mahesh and Manoj under a `Nakur Nama'. When he checked the shop most of the goods was found missing. When he asked them to account for their goods, they went to police, police instituted the proceedings under Section 145 of the Code of Criminal Procedure. He, then went to accused, who was posted as City Superintendent Police and informed him about the order of Civil Court. Accused assured him of inquiry into the matter. Thereafter, when he went to the Office of accused, he demanded a fridge. Next day, he again met the accused and said that he was a poor man and he was unable to give fridge then accused said that his work will not be done. He then gave Rs. 5000/- to accused and asked him for delivering of keys of the shop to him and assured him that he will also pay rest of the amount of Rs. 5000/-. In the evening, one key of the shop was delivered to him, but other key was said to be in possession of the Station Officer Mr. Bisen. When he contacted Mr. Bisen, he asked for a written order. When he informed this to accused, he told him to let Station Officer do it; if he instituted proceeding under 145 Cr.P.C. , he will talk to S.D.M. and get the matter disposed of within two days. When he again met to accused, he told that S.D.M. was demanding Rs. 15,000/- and he also demanded Rs. 10,000/- for himself. On this, he (8) Cr.Appeal No.1816/2001 brought a cassette and after fitting the tape recorder with his telephone, he recorded his conversation with the accused and with the cassette he went to Vigilance Office and met Superintendent of Police namely Vijay Kumar. After hearing cassette, his complaint was recorded. Superintendent of Police, then asked him to talk to accused from his official telephone. The tape recorder was connected with line and again the conversation between him and the accused was recorded. Both the cassettes were seized by the Superintendent of Police. He, then tendered a written report Ex. P/9. On the basis of which, first information report Ex. P/10 was recorded. A script of tape recorded conversation Ex. P/11 was prepared. Cassette was then seized vide seizure memo Ex. P/12. The second tape recorder cassette was also seized. However before its seizure, its script Ex. P/13 was also prepared. Superintendent of Police, Vigilance then arranged for a trap and requisitioned two Govt. Officers. He then handed over 20 notes of Rs. 500/- denomination to which phenolphthalein powder was applied. These notes were returned to him for keeping in the pocket and to hand over to accused as bribe money. He was instructed to give a signal after delivering the money to accused. A tape recorder was also given to him to record conversation between him and the accused at the time of giving bribe. He was warned to not to touch the notes. A pre trap memorandum Ex. P/15 was prepared. He then proceeded on his scooter for Ravindra Bhawan, where accused was said to be on duty. Other members of the trap party proceeded in other vehicles. When accused was not found at Ravindra Bhawan, he went to Kotwali, but by the time he reached Kotwali accused had already left for his house. He then went to his residence and knocked the door. A woman opened the door, who asked him to go on the (9) Cr.Appeal No.1816/2001 first floor, where the accused was present, he handed over the bribe money to accused, who kept it under a pillow. He, then went out and gave a signal whereupon trap party went in the house of accused and washed his hands with a solution, due to which solution became coloured. He deposed that in the beginning accused was in the toilet; his hands were wet when he come out of the toilet. His cassette was seized vide seizure memo Ex. P/16. According to him, on search of the room, the bribe money was not found there. Though, some other currency notes were found, but they were not of bribe money. When notes were not found in the room, search of his person and also of his scooter was taken. Then sweepers were called and sever line was searched; currency notes were then seized from the sewage chamber. They were the same currency notes as their numbers tallied with the numbers recorded in preliminary memorandum. Cassette handed over to him was seized vide seizure memo Ex. P/12.
12. Cassette Article-A and other cassettes Article-B, C, D & E were opened before the Court. On the request of defence counsel, a copy of cassette was supplied to accused. In cross examination, complainant PW6 admitted that about 5-6 criminal cases and 110 Cr.P.C. proceedings were registered against him. With the consent of both the parties, cassette Article-A was opened and played before the Court. It was found that the words as recorded in the tape recorder were in-accordance with the transcript Ex. P/13. Similarly, the conversation recorded in the cassette Article-C was similar to be the script Ex. P/12. It was not challenged by the accused that scripts were not in-accordance with the matter recorded in the cassettes. It was also not objected that the cassettes were tampered or manipulated.
(10) Cr.Appeal No.1816/2001
13. Learned counsel for the appellant submitted that attaching of the tape recording instrument to the telephone instrument was not permissible, therefore, the evidence obtained by intercepting the telephonic conversation was inadmissible. In similar situation, in the case of R.M. Malkani Vs. State of Maharashtra-(1973) 1 SCC 471 the Apex Court held:
"20. The Police Officer in the present case fixed the tape recording instrument to the telephone instrument with the authority of Dr. Motwani. The Police Officer could not be said to intercept any message or damage or tamper or remove or touch any machinery within the meaning of Section 25 of the Indian Telegraph Act. The reason is that the Police Officer instead of hearing directly the oral conversation between Dr. Motwani and the appellant recorded the conversation with the device of the tape recorder. The substance of the offence under Section 25 of the Indian Telegraph Act is damaging, removing, tampering, touching machinery battery line or post for interception or acquainting oneself with the contents of any message. Where a person talking on the telephone allows another person to record it or to hear it, it cannot be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone. There was no violation of the Indian Telegraph Act.
23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is (11) Cr.Appeal No.1816/2001 admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act."
14. It was further held in the case of Malkani (supra) that even if evidence was illegally obtained it was admissible and an instance was cited from an old English case where a constable searched the accused illegally and found a quantity of offending article in his pocket, it was said that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. [See Jones Vs. Owen- (1870) 34 JP 759]. It was held that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused.
15. In case of S. Pratap Singh Vs. State of Punjab-AIR 1964 SC 72 the Apex Court also observed that the evidence of tape recorded talk was admissible. It cannot be put out of consideration for the reasons that tape recordings were capable of being tampered with. Possibly there is no piece of evidence which could not be tampered with, but that would certainly not be a ground on which Courts could reject the evidence as inadmissible or refuse to consider it. In the ultimate analysis the factor which would have a matter is only on the weight to be attached to the evidence of tape recorder of tape recording and not its admissibility. If in any particular case there is a well- grounded suspicion not even say proof, that a tape recording has been (12) Cr.Appeal No.1816/2001 tampered with that would be a good ground for the Court to discount wholly its evidentiary value. Keeping in view the proposition as laid down by the Apex Court, when we examine the evidence in the present case we find that it has not at all been challenged by the accused that the tape records were tampered with or manipulated. Perusal of paras- 77, 78, 79 and 80 of the evidence of Govind Tolani (PW6) indicates that after hearing the voices in the cassettes Article-A, B and C played before the Court, he stated that they contained the voice of accused and himself. He pointed out which was the voice of accused and which was his. Even at that time, no challenge was made by the accused that it was not his voice. This clearly goes to indicate that the conversations recorded in the cassettes were in the voice of complainant and the accused. On perusal of the scripts Ex. P/11, Ex. P/13 and Ex. P/24, we find that they land support to the evidence of complainant Govind Tolani (PW6). The evidence of complainant about recording the conversation stands further corroborated from the evidence of Dy. S.P. Komal Singh Sisodiya (PW12).
16. Learned counsel for the appellant submitted that the complainant was an informer and was not a man of good antecedents. As stated by Constable Gurudutt (DW2) number of criminal cases were registered against him, therefore, he entertained grudge against the appellant and merely because the appellant did not help him in obtaining the possession of shop, he concocted the story of demand of bribe. We are unable to accept this argument. The evidence of complainant cannot be discarded merely on the ground that he was a person of bad antecedents or was in habit of making complaints. In State of Maharashtra Vs. Narsingrao Gangaram Pimple- (1984) 1 SCC 446 the Apex Court observed that presuming that the complainant was a (13) Cr.Appeal No.1816/2001 person of diabolical character, his evidence could not be refused to be believed without any evidence in the absence of any legal warrant for the same.
17. The next submission made by learned counsel for the appellant is that the complainant occupies no better position than accomplice, therefore, his evidence cannot be accepted without any corroboration in material particulars. He placed reliance on the decision of the Apex Court rendered in Panalal Damodar Rathi Vs. State of Maharashtra- AIR 1979 SC 1191. In case of Panalal (supra) it has been observed by the Apex Court that if the version of the complainant is not corroborated on the crucial aspect of demand, his evidence on this aspect cannot be relied on. In M.O. Shamsudhin Vs. State of Kerala-(1995) 3 SCC 351, the Apex Court however observed:
" That the word `accomplice' is not defined in the Indian Evidence Act, 1872. It is used in the ordinary sense which means and signifies a guilty partner or associate in a crime. Reading Section 133 and Illustration (b) to Section 114 of the Evidence Act together, the Courts in India have held that while it is not illegal to act upon the uncorroborated testimony of the accomplice, the rule of prudence so universally followed has to amount to rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material aspects so as to implicate the accused. ................. 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 (14) Cr.Appeal No.1816/2001 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 the public servant from a person who is unwilling, and if to do public good, he approaches the authorities and lodges a complaint, then in order that the trap succeeds he has to give the money. It was held that the extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances. However, their evidence must be tested in the same way as an interested or participation witness. As a rule of prudence, the Court has to scrutinize the evidence of such interested witnesses carefully. As far as the question of corroboration is considered the corroborating evidence can be even by way of circumstantial evidence."
18. In State of U.P. Vs. Zakaullah- (1998) 1 SCC 557, the Apex Court gave some indication about appreciation and acceptability of the complainant's evidence in cases of corruption, observing that:
" The complainant's evidence was jettisoned on the mere ground that since he had a grouse against the delinquent public servant he might falsely have implicated the latter. Such a premise is fraught with the consequence that no bribe-giver can get away from such a stigma in any graft case. No doubt PW-5 would have been aggrieved by the conduct of the respondent. The very fact that he lodged a complaint with the Anti-Corruption Bureau is reflective of his grievance. Such a handicap in his evidence may require the Court to scrutinize it with greater care, but it does not call for outright rejection of his evidence at the threshold. A pedantic approach rejecting the evidence of a complainant simply on the premise that he (15) Cr.Appeal No.1816/2001 was aggrieved against the bribe-taker, would only help corrupt officials getting insulated from legal consequences."
19. In this view of the matter, the evidence of Govind Tolani (PW6) cannot be rejected out right. His evidence with respect to demand of money finds corroboration from the evidence of tape recorder scripts Ex. P/11 and Ex. P/13 duly proved by the prosecution and further by the evidence of his brother Harish Kumar Tolani (PW8), who deposed that when Govind Tolani had gone to Indore, accused telephoned him and asked that his brother should pay Rs. 10,000/- and that he arranged for Rs. 10,000/- which were to be tendered as bribe money. There appears nothing in the evidence of Harish Tolani to discredit him.
20. From the evidence of complainant Govind Tolani (PW6), it is thus established that accused/appellant made demand of bribe from him for getting the possession of shop delivered to him.
21. The next question is whether appellant voluntarily accepted the bribe money. Govind Tolani (PW6) stated that he went to the house of accused/appellant and handed over him the money which he kept on the bed sheet. After delivering money, he went out of his house and gave pre- arranged signal to the members of the trap party. Rajendra Singh (PW7) an Assistant Engineer in Public Works Department was requisitioned by the Lokayukt Department to join the trap proceedings. According to him, on 30.8.1997 at about 4 p.m. he was introduced to complainant Govind Tolani. The complaint Ex. P/9 was read over to complainant and thereafter, on currency notes produced by the complainant, phenolphthalein powder was applied and complainant was asked to hand over the money to (16) Cr.Appeal No.1816/2001 accused/appellant. In the night at about 11 p.m. trap party went to police Kotwali from where it was informed that accused had gone to his residence i.e. Officers Mess. Complainant was sent to the house of accused to hand over the money. According to him, after some time, complainant Tolani came out of the house of accused and gave pre arranged signal. Thereafter, members of the trap party went to the house of accused. The door was opened by the sister of accused. They all went in the room situated on the first floor, but they found accused inside the toilet. However, they knocked the door, but the accused did not come out. They heard the sound of flowing of the water from the tap. After about 10 minutes, accused came out with wet hands. His hands were caught by two Deputy Superintendents of Police. Solution of sodium carbonate was prepared and firstly; the hands of members of the trap party were dipped, due to which the colour of solution did not change. Thereafter, the hands of accused were dipped in it by which colour of solution turned to light pink. The hands of complainant Govind Tolani were also washed in the sodium carbonate solution, due to which solution turned pink. After seizure of the solutions, Deputy Superintendent of Police inquired from the accused about the bribe money, but he denied of accepting any bribe. Search was made in the room at every place, but bribe money could not be found. Though Rs. 24,500/- were found in the room, but they were different. Since the members of the trap party had heard flowing of water in the bathroom for a long time, they guessed that the bribe money was probably flushed, therefore, in the morning sweepers were called from the corporation, who opened the chambers and ultimately in one of the chambers the currency notes were found. Their numbers tallied with the numbers recorded in the preliminary memorandum. Similar story was (17) Cr.Appeal No.1816/2001 repeated by Virendra Singh (PW10), Ramesh Kumar Soni (PW11) and the Investigating Officer Komal Singh Sisodiya (PW12), who categorically stated that since the bribe money was not found in the room of the accused, he with the help of staff of corporation got chamber of the sever line opened on the next day and found the currency notes given to accused as bribe in the chamber of quarter no. 129 which was adjacent to the quarter of accused. They also got proceedings of recovery photographed. The notes were sullied but not damaged. All the aforesaid witness were subjected to lengthy and rigorous cross examination, but nothing could be elicited out to render their evidence un-trust worthy. We are unable to accept the argument advanced by learned counsel for the appellant that the evidence of Dy. S.P. Ramesh Kumar Soni (PW11) and Dy. S.P. Komal Singh Sisodiya (PW12) cannot be acted upon because they are interested in the success of trap. Their evidence can be acted upon even without any help of any corroboration if it appears satisfactory. Dy. Superintendent of Police, who arranged the trap had no interest against the accused. The verve shown by him to bring the trap to a success is no ground to think that he had any animosity against the delinquent officer. (See State of U.P. Vs. Zakaullah) (supra).
22. Learned counsel for the appellant submitted that the complainant drank water in the room from the bottle of accused and with the same bottle accused drank water, therefore, the possibility of his hands coming in contact with the phenolphthalein powder cannot be ruled out. It is borne out from the evidence of Govind Tolani that he drank water with the bottle but there is no evidence on record that accused also drank water with the same bottle. Apart from it, there is nothing to presume that Tolnai did not hand over the bribe money to (18) Cr.Appeal No.1816/2001 accused and merely touched the notes and the bottle. Learned counsel for the appellant argued that according to Govind Tolani, after accepting the bribe money, appellant had kept the notes on the bed sheet under a pillow, therefore, it was duty of the prosecution to check the presence of phenolphthalein powder on the bed sheet which was not done, therefore, the prosecution story of handing over the money to appellant was false. Govind Tolnai stated that accused had kept money on the bed sheet, but according to him, he did not remember whether he informed this fact to Investigating Officer. Even otherwise a mistake on the part of Investigating Officer cannot render whole of the prosecution case unworthy of reliance. The sodium carbonate solution obtained after washing of the fingers of appellant which was seized and and sent for chemical analysis vide F.S.L. report Ex. P/26 was found containing presence of phenolphthalein powder. Apart from it, tape record script Ex. P/24, containing the conversation which took place between the complainant and accused/appellant at the time of delivery of the bribe money further supports the fact that Tolnai went to his house at about 12 O' clock in the night and talked with him in the matter of shop etc..
23. We are unable to agree with the learned counsel for the appellant that the bribe money recovered from the sewage chamber of quarter no. 129 cannot be treated as the voluntary acceptance of money by the appellant. Dy. S.P. Komal Singh Sisodiya (PW12) deposed that members of the trap party and the Security Guards remained at the spot till morning for keeping a vigil over the sewage line. The Superintendent of Police called the staff from the corporation with the compressor machine. In the morning, employees of the corporation searched and opened the chamber which was intact. The currency (19) Cr.Appeal No.1816/2001 notes were found in the chamber of quarter no.129. This witness proved the spot maps Ex. P/25, Ex. P/29, Ex. P/32 and Ex. P/33 showing the connection of the sever line of the appellant with the chamber from which the money was recovered. There appears no ground to disbelieve the evidence of this witness. Kailash (PW4) and Kailash (PW5), the employees of Municipal Corporation, Bhopal also stated that they opened the chamber and took out currency notes from it. Kailash (PW5) however stated that the chamber from which notes were recovered was only covered with the stone and some of the notes were dry. Though, these witnesses were declared hostile, still from their evidence it was clearly established that currency notes were recovered from the sewage chamber which was connected to the sever line of the quarter of appellant. The evidence of photographer Nirmal Vyas (DW1) that police people dramatically put the currency notes in the chamber and got them photographed by him does not appear reliable in the light of other evidence on record.
24. Learned counsel for the appellant submitted that this chamber was also connected with the sever lines of other quarters, therefore, it cannot be held that the recovered notes came from the toilet of the quarter of appellant. From the evidence on record, in our opinion, it has been amply established that bribe money had come in the hands of appellant, and thereafter, appellant for some time had confined himself in the toilet and went on flushing the water in it. Number of the currency notes were already noted in the preliminary panchnama and the same currency notes were recovered from the sewage chamber which was connected to quarter of appellant. In these circumstances, in our opinion, the only inference would be that the currency notes accepted by the appellant were flushed in the toilet and they were ultimately recovered in (20) Cr.Appeal No.1816/2001 the sewage chamber. There is no scope for presumption that currency notes were planted by the complainant or any other member of the trap party in the chamber which was closed in the backside courtyard of quarter no.129. Therefore, we are constrained to hold that the appellant voluntarily accepted the bribe money from the complainant. The fact of recovery of the currency notes from the sewage chamber connected to the house of appellant rendered significant corroboration to this fact. In the case of G.Mohan Vs. State by CBI, Bangalore-(2004) 7 SCC 700, the Apex Court observed that:
" It is well settled that even in cases under the Prevention of Corruption Act, it is not necessary that the prosecutor is required to prove its case only by direct evidence and the same can be based upon circumstantial evidence alone, if the circumstances are clinching."
25. In Hazari Lal Vs. State (Delhi Administration)- (1980) 2 SCC 390, the Supreme Court held that:
" If the currency notes were thrown out by the accused, but were found to be the same notes which were handed over to accused an inference can be raised that accused accepted the same. It is not necessary that the passing of the money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events following in quick succession in the given case may lead to inference that the money was obtained by the accused."
26. In the facts and circumstances of the present case, in view of the provision of Section 20 of the Prevention of Corruption Act, 1988, it can be presumed that the appellant, who once accepted the currency notes from the complainant and flushed them out in the toilet which were ultimately recovered (21) Cr.Appeal No.1816/2001 from the sewage chamber in the next morning, were accepted by the appellant voluntarily as a motive such as is mentioned in Section 7 of the Act.
27. The explanation given by the appellant is that Govind Tolani wanted direct return of key of the shop, but when on the instruction of D.D.P., the complaint under Section 145 of the Code of Criminal Procedure was filed before the S.D.M., he got annoyed. Because he was his informer, he wanted to get his work done according to his wishes, but since the work could not be done according to his wishes, he concocted the false story of demand of bribe. In our opinion, in view of the evidence on record that money was accepted by him in the night, and it was not found in the room and ultimately it was found in the sewage chamber, the explanation furnished by the appellant does not appear reliable.
28. From the evidence of Govind Tolani (PW6), it stands established that the appellant demanded and accepted Rs. 10,000/- by way of illegal gratification and also attempted to obtain further money as bribe for himself and also for Sub Divisional Magistrate as a motive for showing favour to him in getting possession of the shop to him. Thus, he committed the offence under Section 7 of the Prevention of Corruption Act. And since at the same time, being a public servant, he by corrupt and illegal means obtained for himself and for S.D.M. bribe, he was rightly held liable for the offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act.
29. From the prosecution evidence it has been proved that the bribe money accepted by the appellant was flushed by him in the sewage line with a view of causing disappearance of the evidence against him with the intention of screening himself from the legal punishment. Thus, the appellant was rightly (22) Cr.Appeal No.1816/2001 held guilty for commission of the offence under Section 201 of the Indian Penal Code.
30. In view of the foregoing discussion, we are of the considered opinion that the trial Court did not err in relying upon the evidence adduced by the prosecution and rightly held the appellant guilty of the charges under Sections 7 and 13(1)d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 201 of the Indian Penal Code. The finding of conviction recorded by the trial Court, is therefore, affirmed.
31. As far as the question of sentence is concerned, on perusal of record, we find that service record of the appellant was good. He had received number of testimonials from higher Authorities for his acting with bravery for preventing Naxalite activities. The offence in question was committed in the year 1997, i.e. about 13 years ago. In these circumstances, we deem it just and proper to reduce the sentence of imprisonment of appellant for the offences under Sections 7 and 13(2) of the Prevention of Corruption Act from rigorous imprisonment for three years to rigorous imprisonment for one year.
32. With the aforesaid modification in sentence, appeal stands dismissed.
(RAKESH SAKSENA) (N.K.GUPTA)
JUDGE JUDGE
AD/