Madhya Pradesh High Court
Suryakant Sharma vs The State Of Madhya Pradesh on 9 July, 2013
Author: Vimla Jain
Bench: Vimla Jain
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HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SMT JUSTICE VIMLA JAIN
CRIMINAL APPEAL No. 142/2007
Suryakant Sharma
S/o. Shri G.S.Sharma
Aged about 46 years
Additional Tahsildar (Assistant Engineer)
M.P. Electricity Board
Govindpura, Bhopal
Resident of Pipariya
Sandya Road
District Hoshangabad (MP)
Appellant
Versus
State of Madhya Pradesh
Through Station House Officer
Special Police Establishment
Lokayukt Karyalaya
Bhopal (MP)
Respondent
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Shri S.C.Datt, Senior Counsel with Shri Siddharth Datt,
Advocate for the appellant.
Shri Aditya Adhikari, Special Public Prosecutor for
respondent/SPE, Lokayukt.
Date of hearing : 27.6.2013
Date of judgment: 9.7.2013
JUDGMENT
Per: Vimla Jain, J Appellant preferred this appeal under Section 374(2) of the Code of Criminal Procedure being aggrieved by 2 the judgment dated 30.12.2006 passed by Special Judge (Prevention of Corruption Act) (in short 'Act'), Bhopal in Special Case No.1/2005 whereby he had been convicted and sentenced with the direction to run both the sentences concurrently as under:-
Provision Sentence Under Section 7 of the Imprisonment for one year with Act fine of Rs.2000/- and in default of payment of fine, further rigorous imprisonment for three months.
Under Section 13(1)(d) Imprisonment for one year with read with Section 13(2) fine of Rs.2000/- and in default of of the Act payment of fine, further rigorous imprisonment for three months.
2. Brief facts of the case are that complainant Jitendra Sadana (PW.2) was running a Grocery Shop at Subhash Nagar. On 15.5.2004, the officers of the MPEB alongwith appellant Suryakant Sharma visited his shop, noticed the illegal use of electric supply, made a case and accordingly imposed fine of Rs.10,788/- against Jitendra Sadana (PW.2). The officers of MPEB seized fridge, cooler and portable television from his shop. It is alleged that for settlement of the fine amount and for return of the seized articles, appellant demanded Rs.15,000/- as illegal gratification from complainant Jitendra Sadana. The 3 complainant filed a written complaint (Ex.P/5) in the office of Special Police Establishment (SPE) on 27.5.2004. The SPE had given Mini Tape Recorder with Cassette to the complainant for recording his conversation with the appellant. The complainant recorded the conversation of appellant on 31.5.2004 in his office and on 1.6.2004 returned the Tape Recorder alongwith Cassette to the SPE, Lokayukt. After listening the recorded conversation, K.M.Solanki (PW.11) made a Transcript Panchnama (Ex.P/6) and prepared Seizure Memo of Cassette (Ex.P/7) and also recorded the First Information Report (Ex.P/16) in presence of two public servants namely B.B.Saxena (PW.3) and P.K.Shrivastava (PW.4). K.S.Solanki (PW.11) read the complaint before the complainant and after verifying the facts of the complaint, took currency notes of different denominations totaling Rs.3000/- from the complainant. Constable Tirkey applied phenolphthalein powder on the currency notes. Another constable Omkar Singh made search of the person of complainant and kept Rs.10,788/- alongwith electricity bill in right side pocket of his trouser whereas the amount of illegal gratification of Rs.3,000/- was placed on his left pocket with a specific instruction to shake hands with 4 the appellant prior or after payment of the illegal gratification. He instructed the complainant that after the payment, he would give an indication by scraping his head. Thereafter, hands of Constable Tirkey were washed by Sodium Carbonate, which turned pink. After all these proceedings, complainant was given a Mini Tape Recorder and an empty Cassette for recording his conversation with appellant at the time of transaction of illegal gratification. Exhibit P/8 is Panchnama of the entire preliminary proceedings.
3. On 1.6.2004 at about 12 O'clock, the trap party reached the office of appellant. Complainant entered the office of appellant where he came to know that appellant is not there. The trap party waited for appellant outside his office and at 3:30 pm appellant returned to his office. After sometime, the complainant gave the signal whereupon the trap party rushed in the office of appellant. The trap party washed their hands with Sodium Carbonate. P.K.Shrivastava (PW.4) counted the currency notes placed on the table of appellant under a red colour diary which were seized vide Ex.P/19. Fingers of complainant were washed which turned pink. The red diary and other papers concerning illegal use of 5 electric supply were seized vide Ex.P/21. Thereafter, the cassette was played in presence of witnesses. Transcript Panchnama (Ex.P/10) was prepared. Seizure Memo of cassette was also prepared (Ex.P/11). After due sanction from the office of MPEB, Challan was filed against the appellant.
4. The appellant pleaded not guilty and complete innocence and claimed to be tried with the prayer that he had been falsely implicated in the case.
5. In order to bring home the charges against the appellant, the prosecution examined eleven witnesses. The appellant also examined four witnesses in support of his defence.
6. The learned Court below, after scanning the evidence found the charges proved against the appellant. Therefore, it convicted and sentenced him as stated hereinabove.
7. This appeal has been filed by the appellant assailing the said judgment of conviction and order of sentence.
8. Learned counsel appearing for the appellant submitted that the Court below has committed grave error of 6 law in holding the appellant/accused guilty for the offences under the Act. He submitted that the prosecution failed to prove the illegal demand to pay the gratification. He further submitted that in the present case, there is no evidence on record that appellant voluntarily accepted amount as gratification and with motive for settlement of the fine amount and for return of the seized articles. He prayed that the appeal deserves to be allowed by setting aside the finding of conviction and order of sentence.
9. On the other hand, learned counsel for the State supported the findings of the Court below and contended that the findings of the Court below, recorded on a proper appreciation of the evidence, did not suffer from any infirmities or irregularities, to call for interference in this appeal. He further argued that the evidence and the circumstances were sufficient to establish that the accused had accepted the amount and that gave rise to a presumption under Section 20 of the Prevention of Corruption Act. In support of his contention, learned counsel relied on the cases of Subbu Singh Vs State by Public Prosecutor (2009) 6 SCC 462, C.M.Girish Babu Vs CBI, Cochin, High Court of Kerala (2009) 3 SCC 779, State of Maharashtra Vs 7 Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200, State Represented By CBI, Hyderabad Vs G.Prem Raj (2010) 1 SCC 398, Syed Ahmed Vs State of Karnataka (2012) 8 SCC 527 and Shiv Nandan Dixit Vs. State of UP (2003) 12 SCC 636. He also submitted that the learned Court below did not consider Pretrap Transcript Panchnama (Ex.P/6).
10. We have considered the arguments advanced by learned counsel for the parties and perused the record.
11. The question for decision is whether the prosecution has proved the charges beyond all the reasonable doubts.
12. Complainant Jitendra Sadana (PW.2) stated that accused demanded Rs.15000/- from him saying that the cost of placing electricity meter was also included in it. He came outside the MPEB office thinking that accused was asking bribe money. A peon was standing there. When complainant expressed his inability to deposit the huge amount, he suggested him to go to the office of Lokayukt. He reached the office of Lokayukt, met one police official and narrated the incident. Upon his instructions, he went to the office of accused and kept Rs.3000/- on his table. At that time, 8 appellant/accused was in bathroom.
13. It is clear that complainant had not supported the prosecution case on main ingredients of motive, demand and acceptance and turned hostile. In cross-examination also, he had not supported the prosecution version on demand or acceptance of the amount.
14. The learned trial Court relied upon the evidence of Rashid (PW.9), who stated that he knew complainant Jitendra Sadana. The complainant met him on 31.5.2004 and called him to his house. On 1.6.2004 at about 5 am, he went to the house of complainant. Complainant told him that electricity bill of Rs.11,000/- is outstanding against him and one Mr. Sharma of MPEB officer was demanding Rs.3000/- illegal gratification. Complainant also stated to him that he had already made a complaint of accused to the Lokayukt Police and asked him to reach the Lokayukt office. He went to the Lokayukt office alongwith complainant on his motor cycle where complainant was searched. A pen and purse were taken out from his pocket and were handed over to him by the Lokayukt office. Thereafter, some writing work was performed by the Lokayukt office and he was sitting outside. This witness also stated that he moved towards the office of 9 appellant on the motor-cycle of complainant and complainant came there on the Tata Sumo alongwith the trap party. Complainant reached the office of accused and deposited Rs.11,000/- of electricity bill. Thereafter, he telephonically informed the accused that he had deposited the electricity bill and had brought some money. He also requested to do his work and return his articles. Accused reached his office at about 3:30/3:45 pm. He entered the office of accused alongwith complainant where one more person was sitting. Complainant said to the accused that he had brought his money. Accused indicated him to keep it on the table. Thereafter, he requested the accused to go and accused permitted him to do so. He came out of the office of accused/appellant and gave an indication by scraping his head. Upon indication, some persons of the trap party reached there. Complainant had kept the amount of illegal gratification beneath a notebook. Thereafter, Lokayukt Police started usual proceedings. Rashid (PW.9) further stated that he had identified the accused in the Court and admitted the fact that he is that very person with whom on 1.6.2004 he had gone to him alongwith complainant Jitendra Sadana. But his statement was not corroborated by Complainant Jitendra 10 Sadana. The prosecution adduced no other evidence to corroborate the story of demanding the bribe. Thus, it cannot be inferred from the hearsay evidence of Rashid (PW.9) that appellant/accused demanded any amount from the complainant.
15. We perused the statement of DW.1 Ashfaq Ahmed. He stated that appellant/accused permitted him on phone to return the goods seized to the complainant, if he had deposited the amount. Complainant Jitendra Sadana had written in the Supurdginama (Ex.P/24) that ''eSaus viuk lkeku ;FkkfLFkfr esa vkt fnukad 1@6@2004 dks rglhynkj dk;kZy; ls izkIr fd;k signature in English''.
It shows that the complainant had already received the seized articles.
16. It is admitted fact that the money was seized from the table of appellant. But mere recovery of the money from the table of the appellant/accused by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted money as bribe. Complainant Jitendra Sadana (PW.2) stated that when accused had gone 11 to bathroom, he put the currency notes on the table. K.M.Solanki (PW.11), the then Police Inspector, SPE Lokayukt has stated in para 26 of his cross-examination that ''tc eSa vkjksih d{k esa njokts ij ig¡qpk rksa eSaus ns[kk fd vkjksih ds gkFk esa rkSfy;k Fkk vkSj ,slk yxrk Fkk fd og ckFk:e ls fudyk gSA tc eSa ig¡qpk ml le; uksV Mk;jh ds uhps vk/ks ncs gq, FksA'' P.K.Shrivastava (PW.4) panch witness of entire proceedings has admitted in para 10 of his cross examination that '';g ckr lgh gS fd vfHk;qDr us ;g dgk Fkk fd Vsfcy ij iSls iVd fn;s gSa vkSj eq>s >wBk Qalk;k x;k gSA ;g ckr lgh gS fd vfHk;qDr us ;g Hkh dgk Fkk fd tc og ckFk:e esa x;k Fkk rc Vsfcy ij Mk;jh ds uhps :i;s nck fn;s gksaxsA'' It is not disputed that after recovery of money when hands of appellant/accused were washed by sodium carbonate, the colour of water did not change.
17. Looking to the abovesaid evidence, circumstances of the case and immediate reaction of the appellant after the incident raise serious doubt about the amount having been voluntarily accepted by him as illegal gratification.
18. Therefore, submission of learned counsel for the State that presumption has rightly been raised against the appellant cannot be accepted. The acceptance itself had not been proved. In the absence of a proof of acceptance, the question of raising the presumption would not arise. Section 12 20 of the Prevention of Corruption Act, 1988 provides for raising of presumption only if a demand is proved. It reads as under:-
''20.Presumption where public servant accepts gratification other than legal remuneration -(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.''
19. Thus, the citations submitted by the respondent-
State, which relate to presumption under Section 20(1) of the Act, are not applicable.
20. Regarding the next contention of learned counsel 13 for the respondent that learned Trial Court did not take cognizance of Pretrap Transcript (Ex.P/6), Complainant Jitendra Sadana had not stated anything about Pretrap Transcript. Omkar Singh (PW.8) had admitted in his cross examination that so many voices were coming from the Tape Recorder. In addition to that Pretrap Transcript (Ex.P/6) is not a substantial evidence. Therefore, prosecution had not lost anything in not considering Pretrap Transcript by learned Trial Court.
21. For the reasons aforementioned, the charges could not be proved beyond reasonable doubt against the accused/appellant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act. Therefore, we are of the considered view that the Trial Court committed the error in holding the accused guilty. Consequently, the appeal is allowed. The convictions and sentences passed on the appellant, by the learned Trial Court are hereby set aside and the appellant is acquitted from alleged charges. The appellant is on bail. He is discharged from the bail bonds.
(Rakesh Saksena) (Smt.Vimla Jain)
Judge Judge
amit
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