Madhya Pradesh High Court
Sanjay Rai vs The State Of Madhya Pradesh on 11 April, 2018
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Cr.A.No.1425/2013
Shri Sanjay Rai ................ Petitioner
Versus
State of Madhya Pradesh
Through SPE, Lokayukt ....... Respondents
For the petitioner : Shri Kunal Dubey, Advocate
For the respondent: Shri Pankaj Dubey, Advocate with
Shri Rakesh Shukla.
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Present : Hon'ble Mr.Justice Sushil Kumar Palo
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JUDGMENT
[10/04/2018] This appeal under section 374 of the Code of Criminal Procedure has been filed to challenge the judgment dated 10.05.2013, passed by the Special Judge (Lokayukt) Jabalpur in Special Case No. 01/2010, wherein the appellant has been convicted for offence under Sections 7 and 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 ( Prevention of Corruption Act, 1988) and sentenced to one year RI with fine of Rs. 5000/- and 2 years RI with fine of Rs. 10,000/- with stipulated default, respectively.
2. It is not disputed that the appellant-accused was Sub- Engineer in Madhya Pradesh East Regional Electricity Distribution Company, Jabalpur at the relevant time.
3. The prosecution case in brief is that complainant Sharad Tiwari was running a dairy business at village- Urdua 2 Khurd under Police Station, Panagar. He had obtained a commercial electricity connection for the dairy. Three months ago, the Electricity Meter was burnt. He lodged a complaint orally with the Electricity Department. The Meter was changed. The appellant Sanjay Rai was the Junior Engineer. He calculated the electricity consumption for last four years and stated to the complainant Sharad Tiwari that there would be a recovery of Rs. 11,50,000/- for the last four years. The complainant when said that it is excessive the appellant suggested that either he may prefer to fight the case in the Court or he may agree to give him Rs. 4,00,000/- for settling the dispute. The complainant Sharad Tiwari in presence of Sudhir Patel has given Rs. 50,000/-to the appellant. The appellant also obtained three account payee cheques having numbers 027217, 027218 and 027219 duly signed by the complainant, one cheque amount of Rs. 50,000/- was written and the other two were blank cheques duly signed by the complainant. The appellant also informed that these cheques would be deposited against the recovery of Rs. 1,87,923/-, out of which Rs. 87,923/- and two cheques of Rs. 50,000/- shall be deducted from his account. The remaining amount of Rs. 2,12,000/- has to be given to the appellant by way of gratification.
4. The complainant given permission to give Rs. 50,000/- by 21 st or 28 th of July, 2009 to the appellant. The complainant then given an application Exhibit. P/1 to the Lokayukt Police, Jabalpur. The Sub-Establishment Lokayukt swung into action. Inspector R.P. Tiwari handedover a Tape- recorder to the complainant, Sharad Tiwari for recording 3 their conversaton of the appellant. Panchnama Exhibit P/16 was drawn. He then instructed the complainant that once the deal is recorded, he shall inform the Lokayukt Police. On 19.07.2009, the complainant informed the Inspector R.P. Tiwari about the recording about illegal demand by the accused. On 20.07.2009, the complainant came to the office of Lokayukt and had given an applicaton Exhibitt P/4. On 20.07.2009 R.P. Chakrawarti, Manager, District Industrial Centre, Jabalpur and Ashok Joshi, Sub-Engineer, Public Works Department were summoned to the Lokayukt office. In presence of the witnesses the taperecord conversation was transcripted, which is Exht. P/3. The cassette after taking out has been sealed as punchnama Exht. P/5 was drawn. Both the witnesses heard the tape and transcripted Exht. P/3 and signed over it. Inspector R.K. Tiwari then drawn the report Exht. P/27.
5. The Superintendent of Police, Lokayukt then organized a trap and constituted a team for executing the trap. The trap team included Inspector R.P. Tiwari, Rajwardhan Maheshwari, Head-Constable, Kamta Prasad, Head- Constable, Ram Singh and the two panch-witnesses R.P. Chakrawarti and Ashok Joshi. The complainant produced Rs. 50,000/- cash icluding Rs. 500/- notes and Rs. 100/- notes and panchnama prepared, in which the number of notes were also written. Phenolphthalein powder was used on the notes. The notes were kept in the pocket of complainant. He was instructed not to touch the notes except to give it to the appellant. The members of the team dipped their hand in the Sodium Carbonate solution kept in a glass. The cloour did 4 not change, whereas Krishna Kumar added the Phenolphthalein powder on the notes. When he dipped his fingers in the water the same turned into rosey/pink colour. The water content was then sealed in a small bottle. The Sodium Carbonate and Phenolphthalein powder sample were also kept and sealed. The paper in which the powder was mixed with the currency notes was then turned in presence of the witnesses. On 20.07.2009 the members of the trap team went to the dairy of Sudhir Patel, where it was decided to handover this amount to the appellant. The trap team went to the dairy farm of Sudhir Patel at Pariyat. In that time, it was raining heavily. The complainant informed the Inspector R.P. Tiwari that the appellant called him at about 4:00-5:00 p.m. at Sudhir Patel's dairy. The team hidden itself in the kitchen of the dairy. Complainant Sharad Tiwari carried the amount appellant asked him about Rs. 1,62,000/-.
6. He informed that presently he has only 50,000/- rupees. The rest amount will be given after arranging the same. He handed over Rs. 50,000/-, which was ment for trap. The accused-appellant took the money kept in a polythene envelope. The complainant opened the door of the kitchen and signaled to the trap team . The trap team came into hall and caught the appellant and recovered Rs. 50,000/-, which was given to him by the complainant, after informing the appellant that the trap has been arranged. His hand was washed by the sodium carbonate solution. The solution turned pink.
7. The same was preserved in a bottle. The Inspector R.P. 5 Tiwari asked the appellant about the amount he took out the amount from a polythene packet. The numbers of the currency notes tallied with the numbers written in the punchnamea. It was found that these notes are the same, which was given to the complainant, R.P. Chakrawarti.
8. Punchnama Exhibit P/28 was prepared and the amount was seized. The solution was sent for chemical examination. The accused was arrested vide Exhibit P/11 arrest memo. The report of FSL received is Exhibit P/44. After completion of investigation, charge-sheet has been filed.
9. The learned trial Court framed charges for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act, 1988. The appellant abjurd guilt and pleaded himself innocent. According to him, the consumer/complainant committed mischief in the electric connection, therefore, there was manipulation in the reading. Because of which, an arrears of Rs. 1,71,923/- and Rs. 16,00,000/- and compounding fee of Rs. 1,50,000/-. The complainant was called to the dairy of Sudhir Patel by the appellant. The complainant was permitted to deposit the same in three instalments. After three days, the complainant had given a cheque of Rs. 50,000/- to the appellant. The appellant told him to deposit Rs. 87,923/- in the first instalment. The complainant then asked him to deposit the same after he promised to keep 37,923/- rupees. On 17.07.2009 he paid Rs. 37,923/-. The same was deposited at the office and receipt was issued.
610. On 20.07.2009 Sudhir Patel called him to his dairy farm therefore, he had gone to dairy farm of Sudhir Patel. The complainant then requested to take cash and returned the cheque. The complainant was given receipt of Rs. 87,923/-. The complainant given 50,000/- cash, which was then kept by the appellant in the Polythene packet. When he was about to leave he was cought by the Lokayukt police. According to the appellant, he has not taken any illegal gratification. The amount which was given by the complainant was to be deposited as the arrears of the electricity bill. A cheque of Rs. 50,000/- was seized from him. The Lokayukt Inspector, R.P. Tiwari has falsely implicated him.
11. The learned trial Court after examining all the witnesses pronounced the judgment on 10.05.2013 convicting the appellant and sentenced as mentioned above.
12. On behalf of the appellant it is claimed that the appellant is innocent. The amount, which has been seized from him was given by the complainant against the electricity bill. The oral evidence of Sarad Tiwari and Shudhir Patel regarding the demand of Rs. 04,00,000/- for settilng his electricity bill is not correct. There was no bribe taken by the appellant. The relevant tape recorded conversation between the complainant and the appellant in connection with demand of bribe has not been proved. The appellant has been falsely implicated. The amount of Rs. 50,000/- received by him was against the bill of electrical dues. The learned trial Court misread the evidence. The trial Court has not considered the evidence in its proper 7 perspective, therefore, gravely erred in holding that the appel1ant voluntorily accepted the bribe. The sentence awarded is also severe and calls for interference.
13. On behalf of the respondent/State the contention raised by the counsel for the petitioner is vehemently denied and claimed that the complainant had given application Exhibit. P/1. The transcription of the tape-recorder P/3 has not been challenged. The meter of the complainant belongs to the dairy and the statement of the witnesses and the documents of the prosecution establish the offence. The witnesses are independent witnesses. There has been no doubt that the witneses are having any enmity with the appellant, there is no reason to disbelieve them. The evidence of R.P. Tiwari Inspector (Lokayukt) has clearly established the prosecution case. There is no rule of prudence which cristalize into rule of law, nor needed any rule of prudence which requires that the evidence of such officer should be treated on the same footing as evidence of accomplish. In the facts and circumstances of the case, the learned trial Court disinclined to refuse the statment of R.P. Tiwari and therefore accepted the evidence of the Lokayukt Officer ,therefore, the judgment impugned does not call for any interference.
14. Perused the record and the evidence. The evidence clearly indicates that the trap was conducted. The amount of Rs. 50,000/- has been received and there is no reason to disbelieve the same. The trap conducted and the documents including the seizure memo establishes that the amount of Rs. 50,000/- has been recovered from the appellant.
815. It is the plea of the appellant that this amount was taken by him for depositing in the department against the aelectricity dues, therefore, the burden of proof sifts on the appellant. In the examination of the accused-appellant, the appellant has admitted that after fixing the new meter, a bill of Rs. 26,000/- was received by him for recovery, whereas earlier to that bills of Rs. 7,000/- to 8,000/- was being received. The complainant deposited the bills of Rs. 26,000/- to Rs. 27,000/- at the Electricity Centre. The electricity connection was a commercial connection. He also admits that Rs. 50,000/- was received by the appellant for depositing with regard to the arrears of electricity bill. He admits that he has recieved three blank Cheques and in one of the bill an amount of Rs. 50,000/- has been filled, but no receipt was given to the complainant. He explains that he received Rs.50,000/- as the second installemnt. He also admits that he received the money and kept it in the polythene packet. At the time of the trap, he informed the trap party that he has received the money not as bribe, but for the electricity dues. He admits that after the Lokayukt Police caught him, they introduced themselve as R.P. Tiwari and two witnesses of the trap party. Appellant informed R.P. Tiwari that he is received the money against the bill of electricity dues. After washing his hand the solution turned pink/rosey. The appellant also admits that the amount and numbers of notes tallied with the amount of Rs. 50,000/- received by him, panchnama was prepared. The numbers of the notes tallied with the numbers earlier written by the trap team. The cheques he received from the complainant are 9 Exhibits P/20 P/21 and P/22. Bills including Exhibit P/23, carbon copy Exhibit P/24, the pink letter Exht-P/25, and the Changing of meter description Exht. P/26 have been seized from the office. He admits that he received Rs. 50,000/- from Sharad Tiwari as his payment for the dues of electricity bill. He received the amount and kept in the polythene packet. His two mobiles were also seized by the police by punchnama Exht. P/9. Spot map Exht. P/10 was also prepared by the police. Seizure memo Exht. P/11 was drawn by Inspector Tiwari. The appellant was serving as Junior Engineer at the Office of the Electricity Board. Raju Banerjee was serving at Bargi Electricity Distribution Centre as a helper. D.K.Pandey PW.8 was the Superintendent Engineer has given bio-data, service book, and other documents Exht. P/33, 34, 35, and 36 to the police. Sudhir Patel PW.10 was told by complainant Sharad Tiwari that electricity bill of Rs. 1,88,000/- was received by him, which is too high, therefore, Sudhir discussed the matter to the applicant. On 20.07.2009 he had gone to Sharad Tiwari. When Sharad Tiwari spoke to him the appellant in the examination of accused has stated that he informed Sharad Tiwari that the amount received has been for dues of the electricity bill and not as a bribe.
16. All these indicates that the appellant has admitted having received the money, not as a bribe but as electricity dues. The burden of proof, therefore, was on the appellant to prove that the money which he received from the complainant Sharad Tiwari for depositing it in the office against the electricity bill. According to the petitioner, he 10 received blank cheques duly signed by the complainant. It seems that the cheques should have been issued in the name of Regional Account Officer, Madhya Pradesh East Regional Electricity Distribution Company Jabalpur. The accused admitted having been received blank cheques from the complainant Sharad Tiwari. In one of the cheque amount of Rs.50,000/- was mentioned but the other two cheques were blank cheques. These cheques were seized from the custody of the appellant by seizure memo (Exhibit-P-14).
17. Amar Singh (PW/12) has given the details of the procedure to receive cheques from the consumers but the appellant has, violating the procedure, received blank cheques from the complainant Sharad Tiwari. The cheques Exhibit-P-21 and Exhibit-P-22 were received by the appellant without any endorsement and these blank cheques were kept by him on the day when the incident took place. It was raining heavily, the appellant had gone to the dairy form wearing a raincoat and received Rs.50,000/- cash. Had the appellant bona-fide, he could have returned the blank cheques to the complainant, if the cheque were received by him in lieu of the electricity dues.
18. The complainant Sharad Tiwari (PW/6) has also deposed that the appellant Sub Engineer came to him and stated that there would be recovery for last few years and after calculating on a paper, he said that it would not be less than Rs.11 Lacs recovery. He then gave the option to the complainant, whether he has to go to the Court to settle the issue or he has to pay Rs.4 Lacs and his responsibility for 11 depositing the amount will be settled. In this negotiation, the complainant had given Rs.50,000/- to the appellant in the presence of Sudhir Patel (PW/10). According to the complainant, the appellant said that only Rs.1, 87,000/- would have to be deposited and the rest amount would not be counted for.
19. Sudhir Patel (PW/10) is the witness to the seizure memo also in his cross-examination, has stated that the complainant Sharad Tiwari asked the accused to return the cheques and take the money but according to him, the appellant given two cheques to complainant Sharad Tiwari in lieu of amount Rs.87,920/- and kept the same in his bag but this statement of Sudhir Patel (PW/10) in his cross examination, neither supports the prosecution case nor supports the defense version. The witness Sudhir Patel has not been declared hostile. Sudhir Patel (PW/10) has narrated this in his cross examination. In the case of Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh reported as 1991 (3) SCC 627, the Apex Court had a occasion to examine evidentiary value of hostile witness and opined that his evidence cannot be treated as effaced or washed off the record altogether- Parts of his evidence which is otherwise acceptable can be acted upon. The Court further held that testimony of the hostile witness cannot be treated as effaced from the record. The part of evidence which is found to be acceptable can be relied. Therefore, the part which has been found duly corroborated by the other prosecution evidence can be relied upon.
1220. Otherwise also, the two blank cheques have been recovered from the appellant on the same day. Hence, there is no reason to disbelieve the prosecution version of the story. Rajyawardhan Meheshwari (PW/11) was the Inspector at the relevant time and the Lokayukta has also submitted that he had the personal knowledge that the amount given by the complainant to the appellant was given as bribe. Another witness Amar Singh (PW/12) has also admitted that it is the general procedure, when the line man or the Sub-Engineer when goes to the consumer for recovery of the bill, the consumer deposits the amount to the line man or Sub- Engineer. This amount is being deposited to the cooperative bank or in the office of the Electricity Board and receipts were given to the consumer. Sometimes, it happens that in the rural areas, the consumer gives advance cheques. After the Sub-Engineer received the advance cheques, within the prescribed date if the amount is deposited, the cheque is being returned in the consumer. It would be appropriate to mention that Amar Singh (PW/12) is the Executive Engineer of the Madhya Pradesh State Electricty Board and has given statement in favour of the appellant. If for the sake of arguments, it is believed that the amount has been paid and the cheque has not been returned by the appellant to the complainant, non return of the cheque to the complainant would give a presumption against the appellant.
21. In the case of M. Narsinga Rao Vs. State of Andhra Pradesh 2001 (1) SCC 691, the Full Bench of Apex Court has held that the proof of fact depends upon the degree of probability of its having existed. The standard required for reaching the 13 supposition is that of a prudent man acting in any important matter concerning him under Section 114 of the Evidence Act, which empowers the Court to presume. The Court has discretionary powers to make inferences and reach conclusions by employing intelligent reasoning on the facts proved. The discretion is clearly envisaged in Section 114. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under circumstances. Though presumption is not the final conclusion to be drawn from other facts but it could as well be final if it remains undisturbed later. Therefore, for the purpose of reaching on a conclusion, the Court can rely on a factual presumption unless the presumption is disproved, dispelled or rebutted. The court can treat the presumption as tantamounting to proof. However, it may be unsafe to use that presumption unless there is a statutory compulsion. Section 20 (1) of the Prevention of Corruption Act, 1947 also provides presumption. The Court is bound to presume that the said gratification was accepted as reward for doing public duty.
22. On behalf of the appellant, reliance has been placed in the statement of the witnesses including Amar Singh (PW/12), the Executive Engineer MPEB and Sudhir Patel (PW/10) and it is submitted that the amount which has been given to the appellant was against the arrears of electricity dues and not as bribe. Placing reliance on Krishan Chander Vs. State of Delhi reported as Indiankanoon.org/doc/199582897, it is claimed that for establishing offence under Section 7 of Prevention of Corruption Act read with Section 13 (1)(d)(i) and (ii) of the Act, the legal 14 principle applied that demand of illegal gratification is sine-quo- none to constitute the said offence and mere recovery of the currency notes cannot constitute the said offence under Section 7 unless it is proved beyond reasonable doubts that the accused voluntarily accepted the money knowing it to be bribe. Mere recovery by itself could not prove the charge against the accused and in absence of any evidence to prove the payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
23. No doubt, mere recovery for possession of the currency notes from the appellant is not conclusive proof of bribe until and unless the accused without proof of demand cannot establish the offence Under Section 7 as well as Section 13(1)(d) of the Act. The preliminary statement and the transcription of recording the statement of PW/6 complainant gives ample evidence to show that there was demand of money and pursuant to the demand, this amount of Rs.50,000/- was given to the appellant. Besides Mr. R.P.Tiwari (PW/7), the Sub-Inspector Lokayukta, who was the investigator and the officer responsible for conducting the trap was cross examined and given the details. His evidence cannot be out rightly rejected only on the ground that he has not taken the voice sample of the complainant and sent it for analysis. The transcription of the complainant's and appellant's dialogues cannot be over looked.
24. In the case of Hazari Lal Vs. State (Delhi Administration) 1980 SCC (Cri) 458 equivalent to 1980 (2) SCC 390, the Apex Court has held that the evidentiary value of Police Officer who laid the trap, if found entirely trustworthy, there is no need to seek 15 any corroboration. There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence of corroboration.
25. In the facts and circumstances of the case, the Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters, there can be no hard and fast rule, nor can there be any precedential guidance. The Court further added that there is no hard and fast rule to insist upon corroboration to appellant's witness. Sharad Tiwari (PW/6) has clearly and unambiguously stated that despite the fact that he has given the money, the appellant did not give any receipt, nor he returned cheques, therefore, he went to the Lokayukta police. Therefore, statement of Sudhir Patel that the appellant had given the receipts does not create confidence. The system of taking money without any receipt or taking blank cheques from the consumer is neither proper nor can be appreciated, therefore, the action of the appellant not issuing any receipt, nor returning the blank cheques would indicate and lead to the only conclusion that the amount was given as a demand of bribe. Reading the evidence in its entirety, the statement of complainant Sharad Tiwari (PW/6) and investigation officer R.P.Tiwari (PW/7) cannot be brushed aside. Some variation in the cross examination are not significant. There are adequate circumstances, which establish ingredients of circumstances in respect of which the appellant had been charged.
1626. Before parting the case, this Court is constrained to observe that the method of taking the amount or blank cheques from the consumers is a system, which encourage corruption. Therefore, it is expressed that in the recovery of arrears of the electricity dues, a more transparent and appropriate procedure be developed so that this type of offence should not occur in future. At least, when an amount is received, a receipt may be issued to the consumer showing the amount and the date of receipt. A blank cheque should not be taken. The cross cheques in the name of East Regional Electricity Distribution Company should be received to avoid any such incident.
27. In the ultimate analysis, this Court does not perceive any merit in the appeal and subsequently the same stands dismissed.
28. As the appellant is on bail, his bail bonds be cancelled. He be taken into custody forthwith to suffer the sentence.
29. The copy of this judgment along with the record be sent to the trial Court for necessary action immediately along with record of the trial Court.
30. Copy be also transmitted to the Managing Director M.P. East Regional Electricity Distribution Co. Ltd., Shakti Nagar, Jabalpur for necessary action.
(Sushil Kumar Palo) Judge Kunda n Digitally signed by KUNDAN SHARMA Date: 2018.04.11 06:07:33 -07'00'