Madhya Pradesh High Court
Charan Lal vs The State Of Madhya Pradesh on 21 September, 2011
Author: Rakesh Saksena
Bench: M.A.Siddiqui, Rakesh Saksena
(1) Cr.A.No.1841/1999
HIGH COURT OF MADHYA PRADESH: JABALPUR
(AFR)
Division Bench: Hon'ble Justice Shri Rakesh Saksena
Hon'ble Justice Shri M.A.Siddiqui
CRIMINAL APPEAL NO.1841/1999
Charanlal son of Nathulal Durve aged
39 years, resident of village Matiya Doh,
Police Station Lavadhodhari
District Chhindwara (M.P.)
.......Appellant
-Versus-
State of Madhya Pradesh
through Police Station Mohkhed,
District Chhindwara (M.P.)
.......Respondent
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For the Appellant: Shri Vivek Shukla, Advocate.
For the State: Shri S.K.Rai, Government Advocate.
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Date of hearing: 13/09/2011
Date of Judgment: 21/09/2011
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JUDGMENT
Per: Rakesh Saksena,J.
Appellant has filed this appeal against the judgment dated 07.07.1999 passed by Special Judge (Prevention of Corruption Act), Chhindwara in Special Case No.4/92 convicting the appellant under sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and sentencing him to rigorous imprisonment for one year with fine of Rs.500/- on each count, respectively. Sentences of imprisonment on both counts concurrent.
2. The accusation against the appellant is that on 26.7.1990, he as a public servant being Patwari of village (2) Cr.A.No.1841/1999 Khunajhirkhurd, demanded and accepted Rs.500/- by way of illegal gratification from complainant Sabba for providing him Pavti of his agricultural land.
3. According to prosecution, M.V.Bhandare, S.D.O. Police, Chhindwara on 26.7.1990 received an application from Joint Collector/Vigilance Officer, Chhindwara namely Manish Shrivastava wherein complainant Sabba had made a written complaint to Collector, Chhindwara that Patwari Charanlal Dhurve was demanding Rs.1000/- for making mutation of his land and giving Pavti in respect to it. According to complainant, about a year back, he had purchased four acres and 26 decimal agricultural land through registered sale deed from Manak Gabli. On the basis of the said registry when he approached to Patwari for obtaining Pavti, he demanded Rs.1000/-. He agreed for the payment of said money in instalments of Rs.500/-. It was agreed that first instalment of Rs.500/- would be paid on 26.7.1990 at his residence. Since he wanted Patwari to be caught taking bribe, he submitted the said application to Collector which was marked to Joint Collector Manish Shrivastava. On the said complaint, Manish Shrivastava, R.S.Thakur, Deputy Collector, M.S. Verma, SDO (P), Chhindwara, Arvind Kumar Shukla and Sopchand planned a trap. They obtained five currency notes of Rs.100/- each from the complainant, M.V.Bhandare and Manish Shrivastava made their initials on the notes and prepared a panchnama recording the numbers of the aforesaid notes. They handed over these notes to complainant and asked him to go with Sopchand to the house of accused and deliver the same to him. He was also instructed to give a signal when the said money was (3) Cr.A.No.1841/1999 accepted by the accused. Complainant and Sopchand went at the house of accused and other members of the trap party followed them. Complainant went in the house of accused and after two minutes came out and gave prefixed signal to the trap party. Immediately the members of the trap party went in the house of accused and caught him. Accused informed them that the money received by him was kept by him in his polythene bag on the other side of partition of the room. Aforesaid currency notes of Rs.500/- were recovered from the polythene bag and immediately memorandum Ex.P/9 and Ex.P/10 were prepared. Sanshodhan Panji and sale deed were also seized. Numbers of currency notes tallied with the numbers recorded in memorandum.
4. After the trap, report Ex.P/7 was recorded by SDO(P) M.V.Bhandare. The said report was then sent to police station Mohkhed where Crime No.151/1990 under section 3(1&2) was registered. After investigation, sanction for prosecution Ex.P/8 was obtained and the case was put up for trial in the Court of Special Judge.
5. On charges being framed, accused abjured his guilt and pleaded false implication. According to him, he did not accept any money as bribe. He also examined Teekaram (DW-1) in his defence. As per the statement of accused under section 313 Cr.P.C., complainant concocted the story of demand of bribe on the move of Munna @ Arvind Shukla who was inimical to him. The reason for delay in making Pavti was that Teekaram had made objection for the mutation of the name of complainant. Since the competent authority did not allow the amendment of the name, the name of complainant's father was not mutated in (4) Cr.A.No.1841/1999 the revenue record and no Rin Pustika could be prepared. He examined Teekaram (DW-1) in his defence.
6. Prosecution examined complainant Sabba @ Sobharam (PW-1), Sopchand (PW-2), jeweller Pradhuyuman Kumar (PW-3), patwari G.R.Deshmukh (PW-4), head constable Sukhram (PW-5), Girvar Singh (PW-6), head constable Shankerlal (PW-7), S.D.O Prabhat Kumar Shrivastava (PW-8), S.D.O(P) M.S.Verma (PW-9), Deputy Collector Manish Shrivastava (PW-10) and Land Acquisition Officer Officer R.S.Thakur (PW-11) to prove its case. Learned Special Judge relying on the evidence adduced by the prosecution held the appellant guilty, convicted and sentenced him as mentioned above.
7. Learned counsel for the appellant submitted that appellant was falsely implicated by the complainant in connivance with Arvind Shukla who was inimical towards him. From beginning to end, it was Arvind Shukla who advised and supported the complainant. Evidence of complainant was discrepant and contradictory to other witnesses. Evidence of other prosecution witnesses namely S.D.O.(P) M.S.Verma (PW-9), Deputy Collector Manish Shrivastava (PW-10) and R.S.Thakur (PW-11) was also unreliable and they did not take any precaution to rule out the possibility of planting of the money in the room of accused. Before initiating the trap, none of the witnesses gave his personal search. Main investigating officer M.V.Bhandare was not examined in the Court. The learned Special Judge misappreciated the evidence on record and committed error in holding the appellant guilty of the charges. On the other hand, learned counsel for the State submitted that the evidence of (5) Cr.A.No.1841/1999 prosecution witnesses was trustworthy and reliable. Finding of conviction of the appellant recorded by the trial Court was justified and no interference was called for in the impugned judgment of conviction.
8. We have heard the learned counsel for the parties and perused the evidence and material on record.
9. Complainant Sabba (PW-1) deposed that his father Godelal had purchased the land from Manak. He wanted the name of his father entered in the revenue record, therefore, he handed over the sale deed to accused/Patwari and asked him to record the name of his father by next day. After 2-4 days, when he contacted accused, he demanded Rs.1000/-. He then contacted one Arvind Shukla. Arvind Shukla took him to some officers and made him to put thumb impressions on some papers. He asked him to give Rs.500/- for handing over to accused, so he managed the said money by pledging his silver ornaments. Three officers made their initials on the currency notes and asked him to come next day. In the next morning, he along with Arvind Shukla and other officers went to village Khunajhir. Officers gave him the same currency notes of Rs.500/- and asked him to handover the said notes to accused and give signal to them. He along with Sopchand (PW-2) then went to the house of accused and after giving him aforesaid currency notes gave signal to the members of the trap party. Officers reached at the house of accused and searched him. The money was not found on the person of accused, instead the money was found kept in a bag hanging inside the room. The notes were taken out from the bag and were seized. All the persons along with accused were carried (6) Cr.A.No.1841/1999 to Chhindwara. This witness clearly stated that when the money was not found in the clothes of accused, the house of accused was searched. As soon as officers entered the house of accused,he had come out of the house, therefore, he did not know what transpired inside the house of accused. The evidence of this witness appears discrepant. He admitted that Arvind Shukla had taken him to the office of Collector where he was asked to put his thumb impression on papers. After the trap when he reached back to Chhindwara again his thumb impressions were taken on number of papers. According to him, he did not remember whether there had been any Likha-Padhi at the house of accused, but when he returned to Chhindwara his thumb impressions were obtained.
10. Complainant (PW-1) deposed that the sale deed in favour of his father was executed in the year 1986. After elapse of about 3 years, gave sale deed to accused for entering the name of his father. He admitted that he never made any complaint about the demand made by the accused to any Revenue Inspector or Tehsildar instead he contacted Arvind Shukla. He admitted that Teekaram (DW-1) told that the land which was purchased by his father belonged to his share. He did not know whether Teekaram made any objection about the entry of their names in the record. He, however, admitted that because of the said sale deed Teekaram stopped them from passing through his field.
11. Learned counsel for the appellant submitted that the whole episode of trap was managed by Arvind Shukla, but deliberately he was not examined as a witness in the Court. In para 17 of his deposition, complainant (PW-1) stated that when (7) Cr.A.No.1841/1999 he along with Arvind Shukla went to the office of Collector, he did not give any application but his thumb impressions were obtained on several papers. He put his thumb impression on being asked by the officer who talked to Arvind Shukla. He did not know what was written on those papers. He kept on sitting outside the office and Arvind Shukla talked to officer inside the room.
12. According to complainant, for the first time when he contacted accused he demanded Rs.1000/- but later on he demanded Rs.2000/-. In para 22, he stated that he neither gave written application in the office of Collector complaining that accused demanded Rs.1000/- from him nor he told that he wanted accused to be caught red handed.
13. As far as the demand of bribe by the accused is concerned, complainant (PW-1) is said to have informed about it to Arvind Shukla, but Arvind Shukla was not examined in the Court. Though Sopchand (PW-2) who was examined by the prosecution as a shadow witness, happened to be the friend of complainant, but even he did not say that complainant told to him about the alleged demand by the accused. Joint Collector Manish Shrivastava (PW-10) though stated that complainant told to him that accused demanded bribe from him and that he gave an application to Collector for the trap of accused, but the complainant denied of having given any application to Collector. According to him, Arvind Shukla and other officers obtained his thumb impressions on papers, but neither anybody inquired from him nor he inquired anything from them. No application/ complaint allegedly made by the complainant (PW-1) was proved (8) Cr.A.No.1841/1999 in the Court. First Information Report Ex.P/7 was recorded by M.V.Bhandare, SDO(P) Chhindwara, but M.V.Bhandare was not examined in the Court. Though it was mentioned in Ex.P/7 that an application marked by Collector Chhindwara was handed over to him by Joint Collector Manish Shrivastava, but no such document was produced in the Court. Thus, except the uncorroborated evidence of complainant (PW-1) there appeared no other evidence to assure that accused made a demand of bribe from him. In view of the fact that everything was managed by Arvind Shukla, who was not on good terms with the accused, the sole uncorroborated evidence of complainant about the demand of bribe by the accused, in our opinion, does not inspire confidence.
14. In respect to the trap proceeding and acceptance of bribe money by the accused, it has to be noted that no scientific method by using phenolphthalein powder was adopted. Had the currency notes, which allegedly were to be delivered to accused by way of bribe, been treated by the phenolphthalein powder, there could have been further assurance that accused accepted the money voluntarily or had conscious possession of bribe money. A cursory explanation by SDO(P) M.S.Verma (PW-9) that since phenolphthalein powder was not available at that time, it was not applied on the notes, cannot be held to be satisfactory or reliable. Apex Court in Khilli Ram Vs. State of Rajasthan - (1985) 1 SCC 28 observed that "Ordinarily in cases of this type the powder treatment is made. There is no material at all on record to explain why such a process was not followed in the instant case even though detection is alleged to have been (9) Cr.A.No.1841/1999 handled by experienced people of Anti-Corruption Department. It has been in vogue for well over three decades now. If such powder treatment had been made, the passing of the bribe would not have been difficult to be proved. Without powder treatment, for the absence of which no explanation has been advanced in this case, and in view of an overall assessment of the matter which indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable, the prosecution story becomes liable to be rejected." In Ganga Kumar Srivastava Vs. State of Bihar - (2005) 6 SCC 211, Apex Court with approval quoted the observations made by it in Raghbir Singh Vs. State of Punjab -(1976) 1 SCC 145 as follows:
"We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant."
15. In these circumstances, when we examine the evidence on record, we find that complainant (PW-1) along with Sopchand went to the house of accused, gave him currency notes of Rs.500/- and gave signal to the trap party. Officers of the trap party reached there and searched the clothes of accused, but the notes were not found in his clothes. The money was found kept in a polythene bag. The notes were taken out of the bag and seized. (10) Cr.A.No.1841/1999 The bag was found hanging inside the room. When officers entered the house of accused, PW-1 went out, therefore, he did not know what transpired inside the room. He did not remember whether there had been any Likha-Padhi at the house of accused, but, as stated by him, he was made to put his thumb impressions on some papers in police station, Chhindwara. Immediately after the recovery of money, he and accused were carried from village Khunajhir to Chhindwara. PW-1 stated that at the time when he gave money to accused, Girwar (PW-6) was present. When he asked accused to take money and to do his work, he took money after going behind the partition where the bag was hanging. Shadow witness Sopchand did not go inside the room and remained standing outside. He admitted that he had good relations with accused. He frequently visited his house. Accused lived alone, none of his family members lived with him. He also disclosed that there had been a quarrel between Teekaram and Arvind Shukla. Arvind Shukla wanted that accused should get the house of Teekaram demolished but accused did not yield to his demand, therefore, Arvind Shukla was annoyed with accused.
16. Learned counsel for the appellant, in this background, submitted that the possibility that in connivance with Arvind Shukla, complainant planted the marked currency notes in the house of accused could not be ruled out. He also pointed out from paragraph 27 of the evidence of PW-1 that when officers of the trap party went in the house of accused and inquired about the money, accused expressed his ignorance, then they searched the room, but the accused kept on standing there unmoved. The officers went behind the partition and recovered marked money (11) Cr.A.No.1841/1999 from the polythene bag after about 10-20 minutes. He further admitted that the officers who searched the house of accused did not give their personal search to anybody.
17. Sopchand (PW-2) stated that though he went with complainant (PW-1) but remained standing near the door of the house of accused. He saw accused taking money from the complainant but he did not see where he kept the money. Since he remained out of the house, he did not know whether there was any Likha-Padhi at the house of accused. Evidence of Sopchand (PW-2) seems suspicious in view of the evidence of complainant that he gave money to accused behind the partition whereas according to Sopchand he saw complainant giving money to accused from outside of the door of the house. Sopchand stated that after complainant gave signal, officers of the trap party entered the room of accused and he and complainant remained outside the house. He did not know what they did inside the room. One of the officers, who was searching the room, told that the money was found in the polythene bag. Sopchand (PW-2) was confronted with his police statement Ex.D/4 wherein he stated that complainant gave Rs.500/- to accused and accused put that money in the polythene bag hanging on the wall of the room. According to him, when officer came out of the house of accused, the polythene bag was in his hand. Thereafter they all went to Chhindwara. There was no Likha-Padhi at the house of accused. In view of the discrepant evidence of this witness, in our opinion, no reliance can be placed on him.
18. Evidence of SDO(P) M.S. Verma (PW-9) also appears contradictory to the evidence of Complainant (PW-1) and (12) Cr.A.No.1841/1999 Sopchand (PW-2). This witness stated that as soon as they received signal from complainant, they reached into the house of accused. When SDO(P) Bhandare inquired from accused as to where he kept bribe money received from the complainant, accused told that he put money in the polythene bag. None of the other witnesses stated that accused told to the members of trap party that he put money in the polythene bag. According to him, seizure memo Ex.P/10 was drawn at the spot whereas complainant (PW-1) and Sopchand (PW-2) categorically stated that no Likha-Padhi was done at the place of incident. He though stated that before entering in the house of accused, members of trap party gave their search to accused, but no memorandum in that regard was drawn. In these circumstances, it cannot be accepted that members of the trap party gave their search before proceeding for trap.
19. Evidence of Joint Collector Manish Shrivastava (PW-10), who played prominent role in the trap proceeding, also appears suspicious. He stated that it was not possible for him to say when trap party reached at the house of accused after receiving the signal from the complainant and in which room the accused was present. He did not remember whether accused was alone in the house or other persons were present there. He did not remember who caught the accused and searched him. It is also important to note that this witness stated that the money was found in the bag of accused which was kept beside him. He firmly stated that money was recovered from the polythene bag, but he denied that the bag was in another room. According to him, bag was with the accused. Apparently the evidence of this (13) Cr.A.No.1841/1999 witness runs counter to the evidence of complainant and other witnesses. Similar is the position of Deputy Collector R.S.Thakur (PW-11) who though stated that bribe money was seized from the accused, but he did not know who found that money. M.V.Bhandare and Manish Shrivastava searched and inquired about the money but he only remained standing. He did not know how many rooms were there in the house of Patwari. The money was recovered from the polythene bag which was hanging on a pole inside the room. There was no partition in the room of accused. Initially this witness stated that the seizure memorandum was recorded in the house of accused but later he disclosed that memorandum was recorded in the office of Collector.
20. In view of the above contradictory and discrepant versions given by the prosecution witnesses, in our opinion, it cannot be held with certainty that accused voluntarily accepted/obtained marked money from the complainant. The possibility that everything was managed by Arvind Shukla and the money was planted in the house of accused cannot be ruled out. The best possible evidence about the acceptance of bribe money by the accused could have been made available by the use of phenolphthalein powder, but the same was not used. Number of persons including Arvind Shukla appeared to have entered the house of accused. In these dubious circumstances, it cannot be held that prosecution established the fact of demand and acceptance of bribe money by the accused beyond a reasonable doubt. We are of the view that learned Special Judge did not appreciate the evidence on record in correct perspective. (14) Cr.A.No.1841/1999
21. After an overall assessment of the matter, it appears that the story advanced by the prosecution is not true and the defence version seems probable. In these circumstances, the impugned judgment of conviction of appellant under sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act and the sentence awarded to him is set aside. He is acquitted. His bail bond and surety bond are discharged.
22. Appeal allowed.
(Rakesh Saksena) (M.A.Siddiqui)
Judge Judge
b