Dwarika Prasad Mishra vs The State Of M.P on 28 September, 2011

[Cites 12, Cited by 1]

Madhya Pradesh High Court

Dwarika Prasad Mishra vs The State Of M.P on 28 September, 2011

This appeal has been preferred by the appellant against the judgment dated 10.10.1998 of Special Judge, in Special Case No. 67/94 whereby the appellant has been convicted for alleged offence punishable under Section 7 (1) and Section 13(1)(a) (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act") and sentenced to R.I. for one year and fine of Rs.1,000/-, in default of payment of fine, further undergo R.I. for four months and R.I. for two years and fine of Rs.2,000/-, in default of payment of fine further undergo R.I. for six months respectively.

2. In short, the admitted facts of the case, are that appellant Dwarika Prasad Mishra was a Lower Division Clerk and complainant Ram Milan

-2- Criminal Appeal No.2509/1998 Sharma (PW 3), was Peon, both were posted in the office of Lower Sihaval Canal Division, Churhat District-Sidhi. The appellant was also assigned additional charge to look after, preparation and passing of medical bills of department. Complainant presented a medical bill of Rs. 389.60p. which was pending with the appellant/accused for its preparation and passing. Previously also this medical bill was handed over to complainant with some objection and after removal of the objection he again submitted the bill for passing and reimbursement. The bill was to be passed by the then Executive Engineer of the department but necessary preparation and formalities were to be completed by the appellant/accused. Tainted notes were recovered vide Ex.P/4 from the accused and his pant was also seized vide Ex.P/5. Medical bill of complainant and Rs.1250/- were also seized from the house of accused/appellant.

3. In short, the prosecution case are that demand of Rs.50/- was made by accused from the complainant to prepare the Medical bill. The complainant was not willing to give bribe hence he gave an application Ex.P/1 in writing on 3.6.1987 and requested to do needful to Dy. Superintendent of Special Police Establishment Lok Ayukta Office Rewa (in short 'police'), who entertained the application and called Shri Vijay Singh Parihar (PW 6) Investigation Officer and Panch witness R.K. Shrivastava (PW 1). They were introduced with complainant, who had given written complaint Ex.P/1. They enquired from complainant and when they satisfied then the raid was organized.

4. Complainant handed over two notes of Rs.20/- and one note of Rs.10/- in denomination of Rs.50 and numbers of the notes were noted down on a paper and phenolphthalein powder was applied on the notes by constable Omkar Prasad Mishra (PW 5) and after taking his search that except the tainted money no other amount was there. These tainted money were kept in the pocket of the shirt of complainant. He was strictly warned not to touch notes, before giving the same to the accused/appellant, for which panchnama Ex.P/2 was prepared then he was also asked to give the signal to trap party by scratching his head with his left hand. Hands of constable Omkar Prasad Mishra (PW 5) were washed with solution of sodium carbonate which turned pink the liquid was seized. Another sodium carbonate solution was prepared hands of complainant and other members of trap party were washed with it but colour of sodium carbonate solution did not changed and it remained white, it was also seized.

                          -3-                     Criminal Appeal No.2509/1998




5.    Trap party started from Rewa to Churhut at about 11.00 a.m.           in

Official vehicle with complainant including Investigating Officer Shri Vijay Singh Parihar (PW 6), Shri K.L Mishra Dy. S.P., Inspector R. R. Mishra witnesses R.K. Shrivastava and other member Sadhu Lal , they reached churhut at 1.00 p.m. At Churhat near garden behind Higher Secondary School Jeep was stopped. Complainant Ram Milan (PW 3) and constable Sadhulal were sent. Both went inside the office of appellant/accused. After some time they came with appellant/accused out of the office and they took tea in a hotel of Brahaspati Yadav. Meanwhile they were coming back, in the way, complainant given tainted amount to appellant/accused who kept them in the left pocket of pant. Constable SadhuLal saw that appellant/accused taken the tainted money from complainant and kept them in pocket. Then appellant/accused went in the office and took his seat. Complainant gave signal to the trap party. Thereafter Trap party reached there. Investigating Officer Shri Vijay Singh Parihar (PW 6) gave his introduction and introduced other members of trap party and both the hands of appellant/accused were caught by Inspector R.R. Mishra. R.K. Shrivastava asked appellant about the bribe money taken from complainant. Appellant accepted taken the money and kept them in his pocket of pant. He handed over them to the trap party.

6. After the trap tainted currency notes were recovered from appellant/accused. Their numbers were tallied with the Preliminary Panchanama, seizure memo/panchanama of notes was prepared. They were washed with the solution of sodium carbonate which turned pink. Hands of appellant were washed with sodium carbonate solution which also turned into pink and it was seized. Hands of members of trap party were washed with sodium carbonate solution which did not turn and remained white the liquid was seized. Bottles of liquid and currency notes were seized and they were sealed in envelop. During investigation other

-4- Criminal Appeal No.2509/1998 articles solutions were separately seized and Panchanama trape was prepared vide Ex.P/3. Tainted money seized vide Ex.P/4 before the witnesses and pant of accused was also seized vide Ex.P/5. Accused informed that medical bill of complainant is at his residence. Trap party reached at the house of appellant and from there medical bill of complainant together Rs.1250/-seized and notes were given on suparadgi. Dehati Nalisi Ex.P/12 was prepared and it was sent for registration and it was registered vide Crime No. 159/87 Ex.P/13 by SPE Lokayukta. Spot map Ex.P/14 was prepared. Trap panchnama was prepared and documents were seized. Seized articles were sent to FSL Sagar vide Ex.P/15 from where after examination positive report vide Ex.P/16 was received. Service record of complainant and appellant were seized vide Ex.P/7 to P/11. Appellant was arrested and was released on bail.

7. After usual investigation and obtaining requisite sanction Ex.P/17 from the competent authority/State Govt., charge-sheet was filed in the Court of concerned Special Judge.

8. On charges being framed, appellant pleaded false implication. His defence, as per his statement under Section 313 of Cr.P.C., is that complainant and prosecution witnesses are liar. On the date of incident Rs.50/- was taken by him but it was an installment of borrowed money, as on 13.1.1987 complainant Ram Milan had taken Rs.200/- on loan from him without interest vide Ex.D/3 Pronote, out of them he repaid Rs.100/- and Rs.50/- in installment of borrowed money. He has been falsely implicated. As the medical bill of complainant was remitted back to the complainant with objection, on 2.6.1987 the medical bill was again received in the office and he was going to prepare to pass so it was kept in the residence of appellant. The defence plea was also narrated before the Officers of Lok Ayukt in writing. An application together with written receipt of borrowed money was given to Executive Engineer of the

-5- Criminal Appeal No.2509/1998 department vide Ex/D4 on the same day. In defence four witnesses were examined.

9. Prosecution examined 7 witnesses to establish its case viz., Ramesh Kumar Shrivastava (PW.1), B.P. Khare (PW.2), Ram Milan Sharma (Tiwari) (PW 3) complainant, T.R. Pilley Executive Officer (PW

4), Constable Omkar Prasad Mishra (PW.5), Inspector Lok Ayukt Shri V. S. Parihar (PW 6) Investigation Officer and D.R. Yadav (PW 7) clerk Law department.

10. Appellant, to substantiate his defence, examined Yogendra Shekhar Tiwari U D C (DW 1), Ram Lakhan Sharma another UDC (DW 2) R.D. Verma Steno (DW 3) and Babulal Nayak (DW 4) Executive Engineer of the Department.

11. We have heard learned counsel for the parties and perused the record.

12. It was no longer disputed that at the relevant time, appellant was working as L D C, in the office of Executive Engineer, Sihaval Canal Division Churha District-Sidhi as such, he was a public servant within the meaning of this Act.

13. As far as sanction vide Ex.P/17 against the appellant is concerned, it is proved by D.R. Yadav (PW.7) who categorically stated that valid sanction vide Ex.P/17 was accorded by the Law Department, Bhopal to prosecute him under Section 7 (1) and Section 13(1)(a) (2) of the Prevention of Corruption Act, 1988. Even otherwise, learned counsel for appellant has not challenged the validity of sanction at all accorded by Law Department Bhopal, M.P. /State Government.

14. Complainant Ram Milan Sharma (Tiwari) (PW 3) says that Rs. 50/- was demanded to get the medical bill passed of Rs.389.60p. He did not want to give bribe so he approached to SPE Lok Ayukt Rewa and gave an application Ex.P/1 and Rs.50/- taken from him. They enquired from complainant and when they satisfied then task of raid was organized. Complainant given two notes of Rs.20/- and one note of Rs.10/- in denomination of Rs.50/- and numbers of the notes were noted down on a paper and phenolphthalein powder was applied on the notes by constable Onkar Prasad Mishra (PW 5) and handed over to him (complainant) after

-6- Criminal Appeal No.2509/1998 taking his search that except the tainted money no other amount was there. These tainted money were kept in the pocket of the shirt. He was strictly warned not to touch notes, before giving the same to the accused/appellant, for which primary panchnama Ex.P/2 was prepared then he was asked to give the signal to trap party by scratching his head with his left hand. Hands of constable Onkar Prasad Mishra (PW 5) were washed with sodium carbonate solution which also turned pink the liquid was seized. Another sodium carbonate solution was prepared hands of complainant and other members of trap party were washed with it but colour of sodium carbonate solution was not turned it remained white it was also seized.

15. Ramesh Kumar Shrivastava (PW 1) tried to support the version of complainant and said that he was called by Dy. S.P. of Special Police Establishment Rewa and application Ex.P/1 was handed over to him. He gone through it and after enquiring from the complainant and after satisfying a trap was organized and complainant given two notes of Rs.20/- each and one note of Rs.10/- in denomination of Rs.50/- and numbers of the notes were noted down on a paper and phenolphthalein powder was applied on the notes by constable Omkar Prasad Mishra (PW

5) and handed over to him (complainant) after taking his search that except the tainted money no other amount was there. These tainted money were kept in the pocket of the shirt. He was strictly warned not to touch notes, before giving the same to the accused/appellant, for which primary panchnama Ex.P/2 was prepared. The complainant was asked to give special signal to trap party by scratching his head with his left hand. Hands of constable Omkar Prasad Mishra (PW 5) were washed with sodium carbonate solution which also turned pink the liquid was seized. They reached at 1.00 p.m. to Churhat. Tainted amount of Rs.50/- Ex.P/3 given to accused/appellant and they were recovered from him vide Ex.P/4 Hands of appellant and pocket of pant of appellant were washed with sodium carbonate solution which also turned pink the liquid was seized. Tainted amount of Rs.50/- were also washed with sodium carbonate

-7- Criminal Appeal No.2509/1998 solution which also turned pink the liquid was seized. His signature is also obtained at A to A portion of Ex.P/4. Pant of appellant was seized vide Ex.P/5 and his signature is also obtained at A to A portion of Ex.P/5. A medical bill was also seized vide Ex.P/6 his signature is also obtained at A to A portion of Ex.P/6.

16. Since appellant in his statement under Section 313 of the Code of Criminal Procedure admitted the fact of his accepting Rs.50/- from the complainant (PW-3), therefore, there remains no dispute about the proof of acceptance of money. 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-3) by way of illegal gratification for passing his medical bill.

17. 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.

18. 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

-8- Criminal Appeal No.2509/1998 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 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

-9- Criminal Appeal No.2509/1998 the above propositions, it appears essential to examine whether appellant received, accepted or obtained the money by way of illegal gratification or bribe.

19. 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. 20 . Learned counsel for the appellant submitted that about demand of the money by appellant there was only evidence of complainant (PW-3). According to prosecution, though Sadhu Lal accompanied complainant as a shadow witness, but he was not produced in the court to show the demand of money by appellant. He submitted that the evidence of complainant as a sole witness of transaction of demand of money by accused was not reliable. He cited case of Raghubir Singh v. State of Haryana-AIR 1974 SC 1516 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 v. State of Maharashtra-AIR 1979 SC 1191 while examining the evidentiary value of the evidence of complainant, the Apex Court observed that complainant is in no better position than an accomplice and the corroboration of his evidence in material particulars was necessary. In case of Smt. Meena Balwant Hemke

- 10 - Criminal Appeal No.2509/1998 v. State of Maharashtra-AIR 2000 SC 3377 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.

21. Learned counsel for the appellant has submitted that as per version of Ram Lakhan Sharma (DW 2), he put his signature on Ex.D/3 at s to s portion and Rs.200/- were given on loan to complainant before him and it was written by Yogendra Shekhar Tiwari (DW 1). Learned counsel for the appellant has further submitted that Ex.D/3 was written by Yogendra Shekhar Tiwari (DW 1) and signatures of the complainant and Yogendra Shekhar Tiwari (DW 1) are on receipt in English. Learned counsel for the respondent/State has submitted that signature of the complainant on the complaint Ex.P/1 is in Hindi. As per contra, learned counsel for the appellant has submitted that as per version of R.D.Verma (DW 3) who has produced various documents of payment and signatures of complainant which he used to put sign in English and these documents are exhibited from Ex. D-6 to Ex.D/10. From perusal of them it is very much clear that signatures on Ex. D-6 to Ex.D/10 are similar and they are of the same person. Moreover, Ex.D/6 to D-10 are documents of receipts of acquaintance role register by which payment was taken by complainant and he put his signature in English. Learned counsel for the appellant has further submitted that medical bill was produced on 2.6.1987 and trap was organized on 3.6.1987 so there was no occasion and time arises to demand bribe money as there was only one day, no body is expecting to prepare bill and ask for bribe money.

22. Learned counsel for the appellant has vehemently argued that actually the complainant used to put his signatures in English and he also put his signature in English on Ex.D/3 receipt after taking loan of Rs.200/- from appellant but he intentionally put his signature in Hindi in concerned complaint Ex.P/1 in order to mislead.

23. Another defence witness produced by appellant is Babulal Naik (DW 4) the then Executive Engineer head of the office who has categorically stated that on 3.6.1987 i.e. on the date of incident appellant gave an application Ex.P/4 complaining about false case brought forward by complainant and fact of the trap together with copy of Ex.D/3. Learned counsel for the appellant has submitted that Babulal Naik (DW 4) is the

- 11 - Criminal Appeal No.2509/1998 then Executive Engineer head of the office, he is a responsible officer and his version can not be discarded. According to him, on the date of incident appellant brought forward facts in the knowledge of Babulal Naik (DW 4) the then Executive Engineer head of the office that he has been falsely implicated by complainant and there was a transaction of loan between them and complainant paid installment of loan and not the bribe money to appellant.

24. 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.

25. Evaluating the nature of explanation offered by the appellant, the Apex Court in case of T.Subramanian v. The State of T.N.-AIR 2006 SC 836 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

- 12 - Criminal Appeal No.2509/1998 be acquitted. The Apex Court approved the proposition laid down in the decision of Punjabrao v. State of Maharashtra-AIR 2002 SC 486 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".

26. 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 head of office that he accepted the money towards loan transaction and not by way of illegal gratification for passing medical bill. The appellant reiterated the same defence in his statement under Section 313 of the Code of Criminal Procedure. It also stood corroborated by three receipts which has been brought forward by defence evidence and the complainant handed over Rs.50/- to him by way of installment of loan, 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.50/- from the complainant as illegal gratification as a motive or reward for preparation of medical bill .

27. For the aforesaid reasons the impugned judgment of conviction and sentence of appellant under Section of the Prevention of Corruption Act,

- 13 - Criminal Appeal No.2509/1998 1988 passed by learned Special Judge is set aside. Appellant is acquitted. Personal and surety bonds of appellant are discharged.

28. Appeal allowed.

      (RAKESH SAKSENA)                                   (M.A. SIDDIQUI)

          JUDGE                                             JUDGE




Ag/
                  - 14 -                Criminal Appeal No.2509/1998




     HIGH COURT OF MADHYA PRADESH : JABALPUR

             Criminal Appeal No.2509 /1998

             Dwarka Prasad Mishra

                          Vs.

              The State of Madhya Pradesh


             JUDGMENT FOR CONSIDERATION



                                {M.A.SIDDIQUI}
                                  JUDGE
                                  - 9-2011




HON'BLE SHRI JUSTICE RAKESH SAKSENA




                   {RAKESH SAKSENA}
                        JUDGE
                        -09-2011



                   Post for :   /09/2011



                          {RAKESH SAKSENA}
                               JUDGE
                               -09-2011

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