Madhya Pradesh High Court
Munnalal Rajak vs The State Of M.P on 19 March, 2011
Author: R.C. Mishra
Bench: R.C. Mishra
HIGH COURT OF MADHYA PRADESH : JABALPUR
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Present : Hon. Shri Justice R.C. Mishra
Hon. Smt. Justice Vimla Jain
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Criminal Appeal No.1976/2003
Munnalal Rajak, son of Ramsharan Rajak,
aged about 45 years, Resident of Village Imalia,
P.S. Adhartal, Distt. Jabalpur ...Appellant
Versus
State of M.P. through SPE Lokayukt,
Distt. Jabalpur ... Respondent
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Shri Vijay Nayak, Advocate for the appellant.
Shri Aditya Adhikari, Special Public Prosecutor for
respondent/SPE Lokayukt.
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Date of Hearing : 10/11/2010
Date of Judgment : 19/01/2011
JUDGMENT
Per R.C. Mishra, J.
This appeal has been preferred against the judgment-dated 12.11.2003 passed by Special Judge (under the Prevention of Corruption Act, 1988) [hereinafter referred to as the 'Act'], Jabalpur in Special Criminal Case No.07/2002 whereby the appellant was convicted and sentenced as under with the direction that the jail sentences shall run concurrently -
Convicted under Section Sentenced to 7 of the Act undergo R.I. for 1 year and to pay a fine of Rs.1000/- and in default, to suffer R.I for 1 month.
13(1)(d) read with undergo R.I. for 2 years and to pay a 13(2) of the Act fine of Rs.1000/- and in default, to suffer R.I. for 1 month.
2. At the relevant point of time, the appellant was posted as Constable at Police Station Majhgawan, Distt. Jabalpur whereas the complainant Rooplal Patel (PW7), an agriculturist by occupation, was residing at village Junwani.
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3. The prosecution story, in short, may be narrated thus -
(i) On 1.6.2001 Rohani Prasad (PW3), a co-villager, submitted an application (Ex.P-5) before SHO, Majhgawan for initiating action against Rooplal Patel (PW5), the complainant in this case. It contained allegations to the effect that being enraged by the act of his son Ramsingh Patel of getting Rooplal's oxen, who had caused damage to the crops standing in his field, impounded, Rooplal had not only hurled abuses but had also threatened to settle scores with Ramsingh as also with him.
(ii) On 3.6.2001, the appellant, to whom the application was marked for an inquiry, proceeded to village Junwani and after showing the application to Rooplal, demanded a sum of Rs.2,000/- as illegal gratification for letting him off and also gave a threat that in case the amount was not paid till Thursday falling on 7.6.2001, he would be sent to jail.
(iii) Not being inclined to pay the bribe, Rooplal, on 7.6.2001 only, made a complaint (Ex.P-7) to the Superintendent of Police, Special Police Establishment (Lokayukta) Jabalpur who, in turn, directed Inspector Naresh Kumar Agrawal (PW10) to arrange a trap. The Inspector, accordingly, recorded the First Information Report (Ex.P-23); registered a case under Section 7 of the Act and completed necessary formalities for laying the trap in presence of Panch witnesses Ramchandra Shukla (PW4) and Shushant Kumar Bhadrarai (PW6).
The Inspector took into possession 20 currency notes each in denomination of Rs.100/- brought by Rooplal and after noting the details thereof, got them duly :: 3 ::
Criminal Appeal No.1976/2003 treated with phenolphthalein and kept in his pocket with the assistance of Santosh Kumar (PW11). At about 11:10 a.m., the trap party, led by Inspector Naresh Kumar, started for police station Majhgawan in a Government Jeep bearing registration No.MP-02-2145.
(iv) The trap party reached Majhgawan at about 12:15 pm. The Jeep was parked at bus stand wherefrom the party proceeded to the police station. Panch witness S.K. Bhadrarai and Constables Shrikrishan Gautam and Makhanlal were deputed to witness the passing of bribe money from the complainant to the appellant at betel shop cum tea stall run by Munnalal Patel (PW5) whereas S.K. Bhadrarai and constable Shrikrishan Gautam were made to stay near a kirana shop located affront. Inspector Naresh Kumar Agrawal (PW10) and other members of the party witnessed the proceedings by remaining stationed at nearby places. After a while, the appellant came there in civil dress and as per his demand, the complainant handed over the bribe money that was put by the appellant into right pocket of his trousers. Complainant then gave the appointed signal to the trap party. Constables Makhanlal and Shrikrishan Gautam caught hold of the hands of the appellant. As the fingers of the appellant were dipped in colourless solution of Sodium Carbonate, it indicated presence of phenolphthalein by turning pink. During search, all the currency notes treated with the chemical were recovered from the right pocket of appellant's trousers.
Ramesh Chandra Shukla (PW4) not only tallied their numbers with the details recorded in the pre-trap panchnama (Ex.P-10) but also counted them. The trousers worn by the appellant was also seized and he :: 4 ::
Criminal Appeal No.1976/2003 was made to wear another trousers brought from his residence situated in the premises of the police station.
(v) Hands of Ramesh Chandra Shukla as well as right pocket of the appellant's trousers were washed with the solution of Sodium Carbonate and the resultant solutions indicated presence of Phenolphthalein.
Samples of the solutions were kept in separate bottles and sealed. A positive report (Ex.P-27) from the Forensic Science Laboratory was also received regarding hand wash and pant pocket wash.
4. While denying the charges, the appellant pleaded false implication in the wake of animosity. According to him, -
Rooplal had taken his agricultural land having an area of 2 acres on lease as a 'Shikmi' (sub-tenant) but failed to pay the contractual amount even after giving assurance before the Panchayat. In such a situation, he had taken possession of the land from Rooplal and had given the same to another person for cultivation as Shikmi. On the date of the incident, Rooplal had come to the hotel where he was sitting and asked about a home guard posted at the police station and while they were talking to each other, other members of the raiding party came there and asked as to whether he had received the money whereas he had neither demanded nor received any amount.
5. The prosecution sought to prove the charges by examining as many as 11 witnesses. To support the plea of defence, the appellant produced 3 witnesses namely Rajendra Patel (DW1), Ravi Shankar (DW2) and Murat Singh Patel (DW3). Upon consideration of the entire evidence on record, learned trial Judge, for the reasons :: 5 ::
Criminal Appeal No.1976/2003 assigned in the judgment, concluded that on one hand, recovery of the tainted money from the possession of the appellant was proved beyond a reasonable doubt and on the other, he was not able to rebut the statutory presumption under Section 20(1) of the Act.
6. Legality and propriety of the impugned convictions have been challenged inter alia on the following grounds -
(i) The prosecution version was apparently shrouded with doubt in view of the non-supportive evidence of Rohani Prasad (PW3).
(ii) The application (Ex.P-5) said to have been submitted by Rohani Prasad was neither entered in the corresponding register nor in the Rojnamcha and further, it did not contain any endorsement made by the then SHO of P.S. Majhgawan, authorizing the appellant to make an enquiry into the allegations contained therein.
(iii) In the official capacity of Constable, the appellant was not competent to deal with the application.
(iv) There was no cogent evidence as to demand of illegal gratification.
(v) Evidence regarding acceptance of bribe suffered from serious infirmities.
(vi) Since the probability of defence was established, the statutory presumption under Section 20(1) of the Act was not attracted to the facts of the case.
In response, learned Special Public Prosecutor, while making reference to the incriminating pieces of evidence, has submitted that :: 6 ::
Criminal Appeal No.1976/2003 the convictions are well founded. According to him, probability of the defence that was categorically ruled out by the complainant Rooplal, was rightly rejected in absence of relevant revenue records or other cogent evidence.
7. Before proceeding to advert to the merits of the rival contentions, it may be observed that the question whether there was any offence registered or yet to be registered which the appellant could have investigated in relation to which the bribe was allegedly offered would be irrelevant. The reason is that to establish an offence under S.7 of the Act, that corresponds to Section 161 of the Indian Penal Code (since omitted), the prosecution must establish that accused was public servant and that he obtained illegal gratification for showing or forbearing to show, in exercise of official function' favour or disfavour (Bhanuprasad Hariprasad Dave v. State of Gujarat AIR 1968 SC 1323 referred to). Accordingly, the mere fact that the appellant, being Constable, was not competent to investigate or inquire into the contents of the application (Ex.P-5) made by Rohani Prasad against complainant Rooplal as well as non- corroborative evidence of Rohani Prasad would not assume any significance. As an obvious corollary, the fact that the information contained in the application was not recorded in the Rojmancha or any other book required to be kept in the police station under Section 155(1) of the Criminal Procedure Code (for short 'the Code')was also of no consequence.
8. The other contentions may be dealt with under the following sub-heads -
DEMAND OF BRIBE
9. Complainant Rooplal (PW7) substantially reiterated the background facts leading to submission of application (Ex.P-5) by :: 7 ::
Criminal Appeal No.1976/2003 Rohani Prasad against him. As per his statement, non-availability of the bell worn by one of his bullocks taken by Rohani's son to the cattle pond had led to an altercation between him and Rohani Prasad. He clearly deposed that it was the appellant only who, while informing that the complaint made by Rohani Prasad was entrusted to him for inquiry, had demanded an amount of Rs.2000/- as illegal gratification for closing the case.
10. However, while contending that the factum of demand was not proved, learned counsel for the appellant has submitted that it was in answer to the leading questions put by the Public Prosecutor after declaring Rooplal hostile that the corresponding facts were brought on record but since the public prosecutor was able to elicit the incriminating answers during the cross-examination of the complainant, the decision in Varkey Joseph v. State of Kerala, 1993 Supp (3) SCC 745 is of no avail to the appellant.
11. As pointed out already, the admission made by the Inspector Naresh Kumar Agrawal (PW10) to the effect that the application (Ex.P-5) was not found recorded in the Rojnamcha or any other register did not assume any significance. Further, the contention that no date or time or place was fixed for meeting the demand is also not acceptable in view of a categorical statement of Rooplal (PW7) that demand of the bribe was made on 03.06.2001 that happened to be a Sunday under a threat that if the same was not paid up to 07.06.2001, he would be sent to jail.
12. To buttress the contention that in view of the aforesaid facts, the demand of bribe was not proved, attention has been invited to the decision of Supreme Court in State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200 wherein it was re-affirmed that demand of illegal gratification is a sine qua non for constituting the offence under Section 7 of the Act :: 8 ::
Criminal Appeal No.1976/2003 and, therefore, for arriving at the conclusion as to whether all the ingredients of the offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on record in their entirety. In that case, appeal against acquittal of the accused-a Head Constable who, allegedly, on the first occasion, had demanded Rs.2000/- for releasing complainant and his brother on bail for an offence under Section 448 of the IPC and on the second occasion, had demanded Rs.1500/- for releasing complainant's brother and his servant on bail for taking cow of one Dhanraj to the cattle pond, was dismissed on the following grounds -
(i) One of the panch witnesses namely Ashok had died whereas the second one, who was not a witness of demand, was sought to be examined by the prosecution to prove the demand purported to have been made by the accused through him.
(ii) The accused enquired about the correctness or otherwise of the FIR lodged by the complainant after a long time.
(iii) Two attempts were made to nab the accused red-
handed. The first on 08.08.1995 and the second on 22.08.1995.
(iv) If the accused intended to take the amount, he would have accepted the same in his house itself and there was no reason to ask the complainant and the witness to meet him at a public place i.e. near the Veterinary Hospital.
(v) Even the details of the said purported raid viz. time of the complainant's visit to the police station, the residence of :: 9 ::
Criminal Appeal No.1976/2003 the accused and the Veterinary Hospital, had not been disclosed.
Thus, the decision in Dnyaneshwar's case (supra), being distinguishable on facts, does not render any assistance to the appellant.
ACCEPTANCE OF ILLEGAL GRATIFICATION
13. Learned counsel for the appellant has contended that the acceptance and payment of the bribe were also not proved beyond a reasonable doubt in view of the following facts -
(i) Munnalal Patel (PW5), the sole independent witness of payment of bribe, did not support the corresponding version.
(ii) In Para 21 of his statement, complainant Rooplal (PW7) candidly admitted that handing over of the tainted money was not preceded by any conversation.
(iii) Ravi Shankar (DW2), a Constable posted at the same police station, came forward to support the defence by stating that he had seen the complainant while attempting to give a packet to the appellant.
(iv) Evidence of panch witnesses Ramchandra Shukla (PW4) and S.K. Bhadrarai (PW6) who, admittedly, were not able to witness passing of the tainted money, suffered from serious infirmities.
14. In support of the contention, reference has been made to the following decisions of the Supreme Court -
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(i) Subash Parbat Sonvane v. State of Gujarat, (2002) 5 SCC 86.
(ii) T. Subramanian vs. State of T.N. (2006) 1 SCC 401.
15. In T. Subramanian's case, the explanation given by accused immediately after being trapped that the money was given by the complainant towards lease rent and not as bribe for securing patta in favour of complainant was found to be plausible and, therefore, sufficient to rebut the statutory presumption but the case in hand reflects a different factual scenario altogether. Here, none of the panch witnesses Ramesh Chandra (PW4) and S.K. Bhadrarai (PW6) admitted that immediately after being trapped, the appellant had termed the tainted money as part of the outstanding amount of rent. Besides this, S.K. Bhadrarai contradicted the statement of Ramesh Chandra that on being apprehended, the appellant had denied even taking of money. As such, the ratio laid down in T. Subramanian's case is not applicable to the facts of the instant case.
16. In Subash's case, the complainant did not support the prose- cution version of demand and acceptance of the amount but in the present case, the complainant Rooplal (PW7) was emphatic in stat- ing that the amount was paid as against the demand made by the appellant. Moreover, non-supportive evidence of Munnalal (PW5) was insignificant since it is not necessary that the passing of money should be proved by direct evidence (Hazari Lal v. State (Delhi Ad- ministration) (1980) 2 SCC 390 referred to).
17. According to the complainant Rooplal (PW7), after taking the currency notes from him, the appellant had kept the same in the right pocket of his trousers. As reflected in the post-trap panchnama (Ex.P-15), Ramesh Chandra Shukla (PW4) took out the tainted cur-
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Criminal Appeal No.1976/2003 rency notes from the right pocket of appellant's trousers. This wit- ness corroborated the aforesaid recital of the panchnama and other panch witness S.K. Bhadrarai and Detecting Officer Naresh Kumar Agrawal (PW10) were unanimous in saying that it was Ramesh Chandra only, who had taken the notes out of the appellant's pocket; counted the same and tallied their numbers with the details recorded in the pre-trap panchnama (Ex.P-10). The corresponding memo (Ex.P-18) was also tendered in evidence.
18. Further, Inspector Naresh Kumar (PW10) not only substantial- ly reiterated contents of the pre-trap panchnama (Ex.P-10) but also corroborated the circumstances leading to recovery of tainted cur- rency notes from the right pocket of appellant's trousers as reflected in the post-trap panchnama (Ex.P-15). Nothing could be elicited in his cross-examination so as to suggest that he was, in any way, in- terested in securing the convictions of the appellant on absolutely false grounds. His evidence could not be rejected solely on the ground that he was concerned with the success of the trap. The pre- sumption that every person acts honestly applies as much in favour of a Police Official as any other person (See. Girja Prasad v. State of M.P. AIR 2007 SC 3106). Admission made by S.K. Bhadrarai (PW6) that he had already acted as a panch witness in as many as 4 other cases was also not sufficient to dub him to be an accomplice per se or even as an interested witness because there is no rule of law that even if a witness is otherwise reliable and independent his association in a pre-arranged raid about which he had become ac- quainted, makes him an accomplice or a partisan witness (Maha Singh v. State (Delhi Adm.inistration) AIR 1976 SC 449 relied on).
19. Although, the statements of Inspector Naresh Kumar and panch witnesses Ramesh Chandra Shukla and S.K. Bhadrarai suf- fered from inconsistency on the point as to whether the passing of :: 12 ::
Criminal Appeal No.1976/2003 money was within their view yet, their testimony as to substratum of the case that the tainted currency notes were recovered from appel- lant's possession remained unaffected. They also corroborated the fact that another trousers was brought from the house of appellant so as to facilitate washing of the trousers pocket wherein the curren- cy notes were kept. No serious dispute was raised on the point that the hands of Rooplal as well as those of the appellant were also washed with the colourless solution of sodium carbonate and the re- spective parts of the solution turned pink.
20. In the light of direct evidence of the complainant Rooplal as well as clinching circumstantial evidence given by members of the raiding party, learned trial Judge did not commit any illegality in hold- ing that the currency notes treated with phenolphthalein were recov- ered from the right pocket of appellant's trousers.
PROBABILITY OF THE DEFENCE
21. While denying the factum of recovery of the currency notes from his possession, the appellant had asserted that he was appre- hended while conversing with complainant Rooplal who had ap- proached him to know the whereabouts of a home guard posted at the same police station. However, he was not able to disclose the name of the home guard. Moreover, his conduct of not demanding the amount said to have been payable to him as rent as per the agreement or award of the panchayat after seeing the complainant was obviously unnatural and improbable. Further, he did not specify the outstanding amount. There is nothing on record to suggest that he had received any installment payable against the amount settled between him and Rooplal or awarded by the panchayat. It is relevant to note that the complainant, even after admitting that the appellant possessed 2 acres of land, emphatically denied the suggestion that the land was taken by him for cultivation as Shikmi.
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22. As rightly pointed out by learned trial Judge, no suggestion was made to the complainant that the matter was referred to and decided by the panchayat or that the agricultural land was handed over to another Shikmi namely Dayaram in view of his default in payment of the rent.
23. Coming to the evidence of defence witnesses, it may be observed that constable Ravi Shankar (DW2), while admitting the veracity of the trap, asserted that Rooplal was trying to hand over a packet presumably containing the currency notes to the appellant but this fact was not even disclosed by the appellant in his examination under Section 313 of the Code. Other defence witnesses viz. Rajendra Patel (DW1) and Murat Singh (DW3), though residents of village Tighra, claimed to hold agricultural lands near the appellant's field in village Junwani but no supportive document was placed on record. They came forward to corroborate the facts as stated by the appellant that (a) Rooplal had taken the land belonging to the appellant for cultivation as Shikmi, (b) Rooplal had failed to pay the amount outstanding as rent, (c) Panchayat had directed Rooplal to pay the outstanding amount in installments and
(d) the appellant, after evicting the complainant from the land, had inducted Dayaram as Shikmi thereof. However, they could not answer the following queries -
(i) In which year Rooplal had taken the appellant's land for cultivation.
(ii) When the appellant had given the land to Dayaram.
This apart, neither Dayaram nor Mahadeo, the Sarpanch, who headed the panchayat, was examined by the defence. Non-
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Criminal Appeal No.1976/2003 examination of these material witnesses was the strongest possible circumstance to discredit the defence version.
24. In such a situation, the defence was rightly rejected by learned trial Judge as inherently improbable in view of the background facts and circumstances leading to the trap.
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Criminal Appeal No.1976/2003 STATUTORY PRESUMPTION UNDER S.20(1) OF THE ACT
25. While contending that the presumption stood rebutted from the evidence brought on record, learned counsel for the appellant has placed implicit reliance on a decision of the Apex Court in M. Abbas v. State of Kerala (2001) 10 SCC 103. In that case, the appellant was able to explain that the amount had not been received by him as bribe but for the purpose of giving the same to another contractor who had completed the work of removing the bumps from the road, which otherwise was required to be done by the complainant who was later declared hostile and confirmed the explanation given by the accused.
26. Mudholkar, J., speaking for a four-judge Bench of the Apex Court in Dhanvantrai Balwantrai Desai v. State of Maharashtra AIR 1964 SC 575, observed that when an accused is shown to have accepted money, which was not legal remuneration, the presumption can be raised and the rebuttal must be by explanation which must be true and not merely plausible. However, as further explained in V. D. Jhingan v. State of U.P. AIR 1966 SC 1762 and reiterated in M. Abbas's case (supra), it is not necessary that the accused should establish his case by the test of proof beyond a reasonable doubt and he has to establish his case by a preponderance of probability as is done by a party in civil proceedings.
27. But, as discussed already, the appellant was not able to furnish even a plausible explanation for receiving the tainted money and as such, the defence did not stand even the test of preponderance of probability. In this view of the matter, the decision in M. Abbas's case is of no help to the appellant.
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28. As observed by the Supreme Court in Madhukar Bhaskarrao Joshi v. State of Maharashtra AIR 2001 SC 147 -
"the premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act."
29. Re-affirming the aforesaid principle in M. Narsinga Rao v. State of Andhra Pradesh AIR 2001 SC 318, a three judge Bench of the Apex Court has further opined -
When the expression 'shall be presumed' is employed in S. 20(1) of the Act it must have the same import of compulsion. When the sub-section deals with the legal presumption it is to be understood as in terrorum i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under S. 20 is that during trial it should be proved that the accused had accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act
30. Accordingly, we are of the opinion that learned trial Judge did not commit any illegality in invoking the statutory presumption for convicting the appellant in respect of the offences charged with.
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31. For these reasons, none of the contentions raised against legality and propriety of the convictions under challenge deserves acceptance.
32. This brings us to the question of sentence. Taking into consideration the nature of allegations found proved, social impact of the crime and other relevant circumstances of the case, interests of justice would be met if the term of custodial sentence only for the offence under Sections 13(1)(d) read with 13(2) of the Act is reduced to the minimum prescribed under the statute.
33. In the result, the appeal is allowed in part. The impugned convictions and the fine sentences are hereby affirmed. However, the term of consequent sentence of imprisonment for the offence under Section 7 of the Act is also maintained but the period of corresponding custodial sentence for the offence under Sections 13(1)(d) read with 13(2) is reduced from 2 years to 1 year.
34. Appellant is on bail. He is directed to surrender to his bail bonds before the trial Court on or before 08th March 2011 for being committed to custody for undergoing remaining part of the sentence.
Appeal partly allowed.
(R.C. Mishra) (Smt. Vimla Jain)
JUDGE JUDGE
19.01.2011 19.01.2011