Madhya Pradesh High Court
Raj Rajeshwari Nandan Gupta vs Special Police Establishment, Lok ... on 23 October, 2007
Equivalent citations: 2008(1)MPHT174
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 31-7-01, passed by the learned, first Addl, Sessions Judge/Special Judge, Gwalior in Special Case No. 4/93, convictiong the appellant under Section 7 read with Section 13(1)(d)/13(2) of the Prevention of Corruption Act, 198 (in short for brevity "the Act") and sentencing him to suffer R.I. of noe year and fine of Rs. 1,000/- and in fefault, further R.I. of six monthes on each count, the appellent has knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code Criminal Procedure, 1973.
2. In brid, the case of the prosecution is that complainant Kailash Chandra Agrawal (P.W. 1) owns a trading shop in the name and style "Agrawal Textiles" This shop continued till year 1984-85 and the same was closed in the year 1987.
3. As per the case of the prosecution, the appellant, who at the relevant point of time, was serving on the post of Assistant Sales Tax Officer and was public servant, made a demand of Rs. 1500/- and insisted complaint Kailash Chandra Agrawal that in case the same amount is paid by him, he would not be liable to pay a sum of Rs. 6500/- towards sales-tax and the tax liablility will be reduced up to the extent of Rs. 6500/- towards sales-tax and the tax liability will not be reduced up to the extent of Rs. 800/- only. It is further the case of the prosecution that the appellant insisted the complaint to bring the said bribe amount of Rs. 1500/- on 11-7-90,. Since the complainant was not ready to pay the said illegal amount to the appellant, he made a complaint in writing to the Special Police Establishment Lok Ayukt, Gwalior on 11-7-90,. Thereafter, the Superintendent of Plice (Special Police Establishmet) wrote a letter to the Commissioner of Excise department to make a Gazetted Officer available in order to take further steps for organizing a trap. Eventually, one Shripal Singh Chandel (P.W. 8), Gazetted Officer of the Excise Department was made available in order to assist them. According to the prosecution, complainant Kailash Chandra Agrawal (P.W. 1) handed over 15 currency notes of Rs. 100/-each to Dy. S.P. B.N. Bhaditya (P.W. 9) on which Constable Bijendra Singh applied phenolphthalein powder and these currency notes covered by the said power, were kept in the pocket of "Pajama" of complainant and he was directed that the said currency notes be handed over to the appellant. One Ashok Kumar Agrawal (brother-in-law of the complainant Kailash Chandra Agrawal) was made a panch witness.
4. It is further the case of the prosecution that the trap party went to the office of Sales Tax on 11 -7-90 where the appellant was serving on the post of Assistant Sales Tax Officer. Complainant Kailash Chandra Agrawal was sent alongwith Ashok Kumar Agrawal at 4.45 p.m. and thereafter, panch witness and the complainant came out from the chamber of the appellant and gave a signal. Immediately thereafter trap party rushed inside the chamber of the appellant and as they were informed that the money has been kept in a hand bag, the appellant was caught and his hands were washed in the solution of sodium carbonate which became pink. The currency notes were seized from his bag. The trap party thereafter prepared necessary panchnama and arrested the accused.
5. After completion of the investigation, a charge-sheet was filed. The learned Trial Judge on the basis of the allegations made against the appellant in the charge-sheet, framed charges punishable under Section 7 read with Section 13(1)(d)/13(2) of the Act. Needless to emphasis, the appellant abjured his guilt and pleaded complete innocence.
6. The prosecution thereafter examined as many as nine witnesses and placed Exh. P-1 to Exh. P-22, the documents on record. The defence of the appellant is that an ex parte assessment order was passed against the complainant by him on 15- 3-90 imposing the sales tax of Rs. 6,420/- on the complainant and on the date of incident, i.e., 11-7-90 there was no occasion to him to make any illegal demand from the complainant as no matter was pending before him. The further defence of the appellant is that a notice of demand of the recovery of tax was sent by him to the complainant as a result of which, complainant became annoyed because order of recovery was already issued on 19-6-90. It is further the defence of the appellant that the file was not with him and was with the reader. In this manner, the said defence has been put forth by the accused in his statement recorded under Section 313 of Cr.PC. In support of his defence, the appellant examined Narayansingh Kushwaha (D.W. 1), who at the relevant time, was serving on the post of peon in the office of the appellant and who served recovery notice (Exh. D-2) as well as the assessment order (Exh. D-3) on the complainant. The appellant also examined JayesH Dubey (D.W. 2) and Ramesh Chandra Anuragi (D.W. 3), who were serving on the posts of Stenographer and Assistant Grade-II, respectively, in order to prove that the appellant is innocent and he did not accept the alleged bribe from the complainant. The appellant also filed copy of assessment order and demand notice.
7. The learned Trial Judge came to hold that the appellant did commit the offence for which he was charged and eventually convicted and passed the sentences, which I have already mentioned hereinabove. In this manner, the present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence.
8. It has been argued by Shri Sanjay Gupta, learned Counsel for the appellant that the evidence of complainant Kailash Chandra Agrawal (P.W. 1) is not worth credence and another star witness Ashok Kumar Agrawal (P.W. 7) who is also brother-in-law of the complainant and who is said to be all alongwith the complainant in the trap party, has not supported the case of the prosecution. By inviting my attention to the testimony of Shripal Singh Chandel (P.W. 8) it has been argued that as Gazetted Officer this witness was sent alongwith the trap party on the date of incident, i.e., 11-7-90 but this witness has also turned hostile and has not supported the case of the prosecution. By inviting my attention to Para 5 of the deposition of witness B.N. Bhatia (P.W. 9), who at the relevant point of time was serving on the post of Dy. S.P. in the Lok Ayukt Office, it is submitted that according to this witness, the trap party proceeded to the Sales Tax Office at City Centre, Gwalior and some of the members of the trap party were on scooter, some were on cycle and some were on their foot. But, according to Para 22 of the testimony of complainant Kailash Chandra Agrawal (P.W. 1), all the members of the trap party went by a jeep and if this is the position, the case of the prosecution becomes doubtful.
9. Further it has been argued by the learned Counsel for the appellant that since the assessment order was passed by the appellant on 15-3-90 and recovery notice was also sent much earlier to the date of incident, there was no occasion for him to demand and to accept the bribe and therefore, according to the learned Counsel even if for the sake of arguments it is held that the currency notes were seized from the chamber of the appellant, it would not suffice as there is no cogent evidence in order to prove the demand and acceptance of the money by the appellant as illegal gratification.
10. On the other hand, Shri C.S. Dixit, learned Public Prosecutor for the respondent/State supported the impugned judgment. Having heard learned Counsel for the parties, I am of the view that the appeal deserves to be allowed.
11. In the present case, it has been specifically admitted by complainant Kailash Chandra Agrawal (P.W. 1) in Paras 14, 15 and 17 of his deposition that the assessment order making him liable to pay sales tax of Rs. 6420/- was already passed by the appellant on 15-3-90, though, he put his inability whether he received the copy of the. assessment order on 21-3-90. He further put his inability about the fact that the said order was served on him by way of affixure on 8-4-90 by process server Narayan Prasad in presence of the witnesses. However, he has admitted that on account of passing of the assessment order, he took legal advice from his Counsel, who advised him to file appeal but he did not file appeal up to considerable long period of four years and tiled the same in. the month of January. 1994 before the Commissioner, who dismissed his appeal on 15-11-94 and maintained the order passed by the appellant. In Para 15 of his testimony complainant has specifically admitted that after passing of assessment order on 15-3-90, a recovery order was issued by appellant on 19-6-90. Complainant has also admitted that he is well acquainted about the law that an appeal is required to be filed within thirty days before the Commissioner but he did not file appeal within time. In this view of the matger when the complainant has already admitted in Paras 14 and 15 of his testimony that the order of assessment making him liable to pay sales tax of Rs. 6420/- was already passed on 15-3-90 as well as the recovery order was also issued thereafter on 19-6-90, according to me there was no occasion for the appellant to make any demand of bribe from the complainant on 11 -7-90 because at that time, the ball Had already gone from the Court of appellant.
12. The Supreme Court in the case of Ganga Kumar Shnvaslava v. State of Bihar , in similar facts and circumstances, held that if there was no occasion for demand and acceptance of bribe, the accused cannot be convicted. In this context. Para 22 of the said judgment is very important. In the, case of Ganga Kumar (supra), there was demand of money with respect to restoration of connection of electricity supply which according to the appellant of that case was already restored on 22-6-1985 arid if the restoration ofelectricity connection was already restored on 22-6-1985 there was no occasion for the accused to make demand and to accept bribe thereafter either on 25-6-1985 and 28-6-1985 for the supply ofelectricity connection. In the present case also, since complainant Kailash Chandra Agrawal (P.W. 1) has admitted that the assessment order was: already passed quite earlier by the appellant on 15-3-90 and thereafter recovery notice was also issued by the appellant on 19-6-90 fherefore, there was no occasion to the appellant to make demand and to accept tho bribe on 11-7-90, as alleged by the complainant. In the case of Ganga Ram (supra), the Supreme Court further held that since the accused of that ease initially registered a criminal case against the complainant for theft of electricity, there was probability to implicate the accused falsely by the complainant. In the: present case also, it is the defence of the appellant in his statement recorded under Section 313 of Cr.PC that on issuing notice of demand, the complainant became annoyed. The defence of the appellant is also corroborated by the evidence of complainant Kailash Chandra Agrlawal (P.W. 1) Para 15 where he has clearly admitted that after passing the order of assessment on 15-3-90 the appellant also issued notice of demand and therefore this probability cannot be ruled out that the appellant has been falsely implicated as he also issued demand notice against the complainant to deposit the amount of tax.
13. The appellant has examined Narayan Singh Kushwaha (D.W. 1) who at the relevant time was serving on the post of peon in the office of the appellant and who served the order of assessment as well as demand notice on the eonaplainant. According to this witness, by affixsure the service was made because the shop of the complainant was found to be closed.
14. It has been vehemently argued by Shri C.S. Dixit; learned Public Prosecutor for the respondent/State that under the M.P. General Sales Tax Act, the powers are vested with the appellant to set aside the ex parte order and therefore, it may be interred that the appellant made demand of Rs. 1500/- from the complainant. However, if the said argument is tested on the touchstone of the complaint (Exh. P-1) as well as the evidence of the complainant, the same is found to be devoid of any substance. No where in the complaint (Exh. P-l) or in his entire testimony, the complainant has so stated that the appellant advised or directed him to file an application for setting aside the ex parte order of assessment and therefore if the argument of the learned Public Prosecutor for the respondent/State is accepted then it will amount to pass a judgment on the basis of conjunctures and surmises without any material and evidence, Which is not at all permissible under the law. Moreover, on going through the charge framed by the learned Trial Gourt, it is seen that the appellant has been charged under Section 7 of the Act on the ground that by holding the post of public servant, he made a demand of Rs. 1500/- as illegal gratification from the complainant in the assessment case. Since there is no material on record and the appellant has also not been charged that in order to get ex parte assessment order, set aside, the demand was made, I am of the view the argument of the learned Public Prosecutor has no merit.
15. In a latest decision of Supreme Gourt in the case of T. Subramanian v. State of T.N. (2006) 1 SCC 401, Hon'ble R.V. Raveendran, J., spoke for the Bench and held that a trap was arranged, the currency notes were chemically tested and the currency notes were recovered from the accused but merely receipt of currency notes from the accused would not be sufficient to fasten guilt under Section 5(1)(a) or Section 5(1)(d) of the Prevention of Corruption Act, 1947. In this context, it would be apposite to quote-Para 12 of the judgment which reads thus:
Mere receipt of Rs. 200/- by the appellant from P.W. 1 on 10-7-1987 (admitted by the appellant) will not be sufficient to fasten guilt under Section 5(1)(a) or Section 5(1)(d) of thc Act, in the absence of any evidence of demand and acceptance, of the 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 the payment was towards lease rent due to the temple, he cannot 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 appellant had to be acquitted, as rightly done by the Special Court. In Punjabrao v. Stale of Maharashtra the accused, a patwari, was on a campaign to collect loan amounts due to the Government. The complainant therein was admittedly a debtor to the Government. The accused explained that the amount in question was received towards loan. This Gourt accepted such explanation (though such explanation was not immediately offered as in this case, but was given only in the statement under Section 313 holding thus: (SCC p. 372, Para 3) It is too well settled that in a case where the 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 the prosecution, but can establish the same by preponderance of probability.
16. In the present case, the cash amount of Rs. 1,500/- was found in a bag and there is no clinching evidence that the said bag which was lying in the chamber of appellant was of his own. Even if it is held that the cash amount is recovered from the appellant, it would not be sufficient to hold that appellant is guilty of the offence. In this context, the decision of Supreme Court in the case of T. Subramanian (supra), may be placed reliance.
17. I am also not impressed with the submission of learned Public Prosecutor that the assessment file which was seized, in that file assessment order passed by appellant was not found and there is no order-sheet indicating that any assessment order has been passed by the appellant. Therefore, inference should be drawn against the appellant. The reason is that the complainant himself has admitted that much earlier to the date of incident, which is 11-7-90, he already received not only the copy of the assessment order but also received demand notice to deposit the amount of tax. The other reason for not accepting the submission is that usually in the file of order-sheet main order is not tagged and the same is kept in another file and if the order-sheet of the date on which assessment order was passed was not written, it was the fault of the reader of appellant and appellant cannot be made responsible in that regard. At the most, it was an irregularity only.
18. Since on the above said reasonings I am allowing this appeal, the other points which are advanced by learned Counsel for appellant are not to be dealt with. ,
19. For the reasons stated hereinabove, I am of the view that the charges against the appellant are not proved. Eventually, the judgment of conviction and order of sentence against the appellant is hereby set aside and the appellant is acquitted from all the charges levelled against him.
20. Appeal is accordingly allowed. The amount of fine if deposited, be refunded to him.