Madhya Pradesh High Court
Smt. Ranjeeta vs The State Of Madhya Pradesh Through ... on 20 June, 2019
Equivalent citations: AIRONLINE 2019 MP 862
Cr.A. No. 1093/2019 1
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
SINGLE BENCH : HON'BLE SHRI JUSTICE S.K.AWASTHI, J
CRA No.1093/2019
Smt. Ranjeeta
Versus
State of Madhya Pradesh
------------------------------------------------------------------------------
Shri Vinay Saraf, learned Senior Counsel with Shri Amit Bhatia
, learned counsel for the appellant.
Shri Vaibhav Jain, learned counsel for the respondent/SPE.
------------------------------------------------------------------------------
JUDGMENT
( Passed on 20/06/2019) The present appeal is directed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C.') feeling aggrieved by judgment dated 30/01/2019 passed by Special Judge (Prevention of Corruption Act, 1988), Ujjain in Special Case No. 14/2017, whereby the appellant was found guilty for the offence punishable under Sections 7 and 13(1)(d)/13(2) of Prevention of Corruption Act, 1988 ( in brevity 'the Act') and sentenced to undergo four years RI and to pay fine of Rs.2,000/- for each offence with usual default stipulation.
2. In short the prosection case is that at the relevant point of time, appellant-Ranjeeta Songara was serving on the post of Patwari of Halka No. 13, Village Tankariya Panth, Tehsil and District-Ujjain. Complainant-Balkrishna Patel purchased 1.5 Bigha agricultural land situated at Village Tankariya Panth from Ashok S/o Munnalal Khati by a registered sale deed and thereafter, he submitted an application for the mutation of said agriculutral land in his name. However, appellant-Ranjeet kept original registry with her and assured the complainant that she will mutated the land in his name. When mutation was not done, then complainant met to the present Cr.A. No. 1093/2019 2 appellant, who made a demand of illegal gratification of Rs.2,500/- from him.
3. Since the complainant was not keen enough to give illegal gratification to the appellant, as a result of which he submitted a complaint on 20/06/2016 in the Office of Lokayukta, Ujjain and the case was entrusted to the Inspector Basant Shrivastava to verify the contents of the complaint. Inspector Basant Shrivastava gave a Digital Voice Recorder to the complainant and stated him for recording the conversation of bribe amount. Complainant went to the house of present appellant, where she made a demand of Rs. 2,500/- for mutation of agricultural land in his name. The complainant recorded this conversation and submitted the Digital Voice Recorder to Inspector Basant Shrivastava. Thereafter, he submitted complaint (Ex. P/3) to Inspector Basant Shrivastava. The transcript of conversation between the complainant and the appellant was prepared and the arrangements were made to lay a trap to the accused. A letter was written by SPE, Ujjain to the collector to send and to depute two gazetted officers so that they may be included in the trap party as panch witnesses. In compliance of the direction of the Lokayukta office, Collector, Ujjain deputed Vijay Kumar Sukhwani, Associate Professor of Engineering College, Ujjain and Ramesh Chandra Gupta, Professor of Govt. Polytechnique College, Ujjain. On 21/06/2016, these two Officers were present in the Office of SPE, Ujjain and they were introduced to the complainant. Thereafter, in presence of Panch witnesses, Dr. V.K. Sukhwani read over the complaint of the complainant and after hearing its contents, the complainant accepted the averments written in the complaint to be true and further admitted that the complaint is written by him. On the basis of aforesaid complaint, FIR was lodged against the appellant for the offence punishable under Sections Sections 7 and 13(1)(d)/13(2) of Prevention of Corruption Act, 1988 .
4. Then, on submitting the currency not having denomination of Cr.A. No. 1093/2019 3 Rs.500/- each (in total Rs. 2,500/-) by the complainant, phenolpthalein powder was applied on these currency notes by constable-Tarun Borke. Thereafter, treated currency notes were kept by constable-Sunil Parsai in the right pocket of trouser of the complainant and he was directed that he should not come in contact with the treated currency notes earlier to hading over the same to the appellant. He was further pacified and directed that after hading over the bribe money to the appellant, he will not shake his hands with the appellant . Constable Sunil Parsai prepared two packets of phenolphthalein powder and solution of sodium carbonatre and thereafter, complainant and panch witnesses dipped their fingers in the said solution. On dipping their fingers in the said solution, the colour of the solution does not change. Then on dipping the fingers of constable Tarun Borke, the colour of the solution turned to pink because he had already came in the contact with the phenolphthalein poweder as he prepared two packets of it. The tinted hand wash of the hands of constable Tarun Borke was collected in separate bottle and the same was sealed. A pre trap panchnama was prepared. Before proeeding to trap the appellant, the hands of each members of the trap party were subjected to said chemical test and on dipping their fingers in the solution of sodium carbonate, the colour of the chemical solution was not changed. The unchanged liquid chemical was collected in a separate bottle.
5. Thereafter, the trap party proceeded to Nanakheda at the place of residence of appellant. The complainant was directed to go inside the house of appellant and also directed that after the bribe money is passed over, he will come out from the house of appellant immediatey and would rub his hands on his head, which would be the signal to the members of the trap party that the transaction of bribe money has taken place. The members of the trap party took their convenient position nearby the house of the appellant. After some time the complainant came out from the house of the Cr.A. No. 1093/2019 4 appellant and he rubbed his hands on his head, which was the signal to the members of the trap party. Thereafter, members of the trap party reached to the house of the appellant and lady constables namely Reena Sharma and Sadhna Dom have caught hold the hands of the appellant from the wrists and after that the members of the trap party gave their introduction to the appellant. Complainant put the bribe amount of Rs.2,500/- on the bedsheet of the Diwan. At that time a fresh solution of sodium carbonate was prepared and the fingers of hands of the appellant were washed in the said solution and on dipping the fingers of her hands, the colour of the solution turned cloudy, which was collected in the separate bottled, which was sealed. Thereafter, on being asked to the appellant, where the bribe money is kept, she told that the same is kept in the bedsheet of Diwan. Thereafter, a fresh solution of sodium carbonate was prepared and the fingers of the hands of panch witnesses were dipped, but the colour of the solution did not change. The said chemical liquid was collected in a separate bottle, which was also sealed. Thereafter, a panch witness Vijay Kumar Sukhwani uplifted the bribe money, which was kept in the bedsheet of Diwan and tallied the numbers of the currency notes from the pre trap panchnama and they were found to be the same. The hands of Panch witness-Dr. V.K. Sukhwani were again dipped in a fresh solution of sodium carbonate and this time on dipping his fingers in the said solution, the colour of the solution turned to pink. The tinted hand wash of this panch witness was collected in a separate sealed bottle. A post trap panchnama was also prepared and after peforming the necessary formalities, the trap party came back to the office of Lokayukta.
6. After completion of invetigation; necessary sanction was obtained to prosecute the appellant and thereafter a charge-sheet was filed before the learned Special Judge (Prevention of Corruption Act, 1988), Ujjain.
Cr.A. No. 1093/2019 57. The trial Court framed the charges of offence punishable under Sections 7 and 13(1)(d)/13(2) of Prevention of Corruption Act, 1988 against the appellant. The appellant abjured her guilt and claims that she is innocent and took a plea that she never made any demand form the complainant. On 21/06/2016, when was preparing the food in her house at that time two lady constables came to her house and they caught hold her hands and took her in the room. She has not received any bribe amount from the complainant and a false case has been registered against her. However, she has not examined any witness in her defence.
8. In order to prove the charges, prosecution examined as many as 9 witnesses and placed Ex. P/1 to P/45 the documents on record. The learned Special Judge after appreciating and marshalling the evidence came to the conclusion that the charges of offence under Sections 7 and 13(1)(d)/13(2) of Prevention of Corruption Act, 1988 is made out against the appellant, as a result of which convicted and sentenced her, as mentioned hereinabove.
9. Learned Senior counsel for the appellant submits that the trial Court has committed grave error of law in holding the appellant/accused guilty for the offences under the Act. It is also submitted that the complainant did not support the prosecution story and turned hostile and the prosecution has failed to prove the illegal demand to pay the gratification. There is no evidence available on record that appellant accepted the amount as gratification with motive to get mutation done. Mere recovery of currency notes from the house of the appellant is not sufficinet to prove that she accepted the money knowing it to be bribe. It is further submitted that presumption under Section 20 of the Act can be drawn only be in respect of offence under Section 7 of the Act but not under Section 13(1)(d)/13(2) of the PC Act. Under these circumstances, learned Senior counsel for the appellant prayed that the appeal deserves to be allowed by setting aside the finding of conviction and order of sentence.
Cr.A. No. 1093/2019 610. To the contrary, learned counsel for the respondent/SPE submits that trscript of DVR provided to the complainant by the prosecution agency is produced in evidence, in which the converstation has been recorded between the appellant and the complainant regarding demand of bribe, thus the factum of demand is proved, even though the complainant did not support the prosecution case and was declared turned hostile. Acceptanace of bribe amount by the appellant has also proved by the testimony of independent witnesses. Therefore, merely because the complainant did not support the prosecution case and turned hostile, the entire case of the prosecution would not be summersaulted. Seal deed of the land of the complainant has also been recovered from the possession of the appellant. Accordingly, the findings of the court bloew, recorded on a proper appreciation of the evidence, did not suffer from any infirmities or irregularities, to call for interference in this appeal.
11. Considering the rival contentions of the counsel for the parties and on perusal of record, it appears that it is not disputed that at the relevant point of time, the appellant was working as Patwari of Halka No. 13, Village Tankariya Panth, Tehsil and District-Ujjain.
12. Complainant-Balkrishna Patel (PW 1) deposed that two years ago, he has purchsed 1.5 Bigha of agricultural land from one Ashok Patel by registered sale deed. As he was needed some loan amount, therefore, he went to the Bank, however, bank Officials told him that loan cannot be sanctioned only on the basis of registered sale deed and in order to obtained the loan amount, you have to submit the copy of Khasra Panchshala and Bhu Adhikar Rin Pustika. Then he approached to the appellant for mutation of agricultural land in his name. Appellant told him to supply the copy of sale deed and within 10 to 15 days mutation will be done. After 8 to 10 days, when the complainant met the appellant two or three time , she informed him that it will take time. Thereafter, the complainant met with the appellant alongwith his friend Golu Patel but she did not talk properly.
Cr.A. No. 1093/2019 7Then he went to the office of Collectorate alongwith his friend Golu Patel, where one friend of Golu Patel met and suggested them to made a complaint before Lokayukta Office, Ujjain against the appellant. Thereafter, he went to the Lokayukta Office, Ujjain and he handed over a copy of the complaint (Ex. P/1) to Inspector Basant Shrivastava, which was written for the mutation, however, he did not know that what was written in the aforesaid document. He further submits that he had gone to the Lokayukta Office, Ujjain for only to done mutation proceedings. Thereafter, he gave Rs.2,500/- to Basant Shrivastava in order to get the receipt of mutation proceedings. He also deposed that he went to the house of the appellant but the appellant was not present there and appellant's husband met him, when appellant's husband went to call the appellant, during this period, on the instance of Lokayukta Police, he kept the currency notes of Rs.2,500/- on the bed of the appellant, thereafter, Inspector Basant Shrivastava came there and he conducted some proceedings there for about two hours.
14. From the statement of the complainant B.K. Patel (PW 1), it is clear that he did not support the prosecution case on main ingredients of motive and acceptance of demand by the appellant and turned hostile. In his cross-examination also he did not supported the prosecution case regarding motive and acceptance of illegal gratification.
14. Learned trial Court on the basis of transcipt of conversation recorded between the complainant and the appellant with regard to demand of bribe, it is found that the appellant demanded illegal gratification to get the mutation, which was recorded on 20/06/2016 in DVR. From the perusal of record, it appears that the prosecution has produced the transcript of conversation as Ex. P/5 in evidence. Since the conversation is recorded in the electronic device and subsequently, the hard copy of conversation (Ex. P/5) is prepared, therefore, as per Section 65(B) of the Evidence Act a certificate of the person, who Cr.A. No. 1093/2019 8 prepared the transcript of the conversation from DVR is required.
15. The prosecution has produced the certified (Ex. P/41) given by Ramesh Dawar, who is working as AG-III in the Office of Lokayukta, Ujjain. Although, he has not been examined before the trial Court but the certified issued by Ramesh Dawar has been proved by Inspector Basant Shrivastava and no challenge has been made in the cross- examination regarding admissibility of this certificate, therefore, the trial Court has not only admitted this document but also relied upon with respect to the demand of bribe amount.
16. The Hon'ble apex Court in the case of Hazari Lal Vs. The State (Delhi Admn.), AIR SC 873 has categorically held that although, the complainant has not supported the case of the prosecution and was declared hostile, even then if the demand of bribe is proved from other circumstnaces and evidence, an accused can be convicted.
17. In the prsent case, complainant-B.K. Patel (PW 1) had admitted that he has put his signature on the complaint, which indicates that he has submitted the complaint, although on the instance of some police officials.
18. The Hon'ble Supreme court in the case of Raghbir Singh Vs. State of Punjab, AIR 1976 SC 91, in para 8 has categorically held that the Anti-corruption Department should procure the assistance of independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court. In the present case, the prosecution included Mr. V.K. Sukhwani (PW 2) as panch witness, who was serving on the post of Professor in Govt. Engineering College, Ujjain at the relevant point of time. According to the Mr. V.K. Sukhwani (PW 2), when he arrived in the Office of Lokayukta, Ujjain, Inspector Basant Shrivastava informed him that the complainant has given the application that the Patwari is making a demand of bribe from him, at that time, complainant-B.K. Patel (PW 1) was also present, who gave his complaint to Lokayukta Police Cr.A. No. 1093/2019 9 and Inspector Basant Shrivastava handed over the complaint to him. Thereafater, he read over the contents of the complaint and after hearing the contents thereof, he accpeted that whatever written in the complaint is correct. This witness was cross-examined at length, but nothing is carved out from his testimony that the complaint was not read over to complainant by him. Prosecution has also filed the transcription of conversation recorded between the complainant and the appellant regarding bribe money, hence this Court is of the view that the appellant made a demand of bribe amount from the complaiant.
19. So far as the acceptance of illegal gratification is concerned, it is admitted that the treated money was seized from the bed of the appellant. But mere recovery of the money from the bed of the appellant by itself cannot prove the charges levelled against the accused, in absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money as bribe. Complainant B.K. Patel (PW 1) stated that when he kept the currency notes on the bed of the appellant, she was not present there. Dr. V. K. Sukhwani (PW 2) deposed that the complainant was directed to go to the house of the appellant and he was also directed that after the bribe money is passed over, he would rub his hands on his head, which would be the signal of the trap party that the transaction of bribe money has taken place and the members of the trap party took their convenient position nearby the house of the appellant but there is nothing on record to established that complainant gave any signal to the members of the trap party by rubbing his hands over his head. According to statement of these witnesses, the complainant entered into the house of the appellant and after some time, two lady constables rapidly entered into the house of the appellant and they caught hold the hands of the appellant from the wrists, thereafter, the members of the trap party gave their introduction to the appellant. At the spot fresh solution of sodium carbonate was prepared and the Cr.A. No. 1093/2019 10 fingers of the hands of the appellant was washing in the said solution and on dipping her fingers of her hands in the solution, the colour of the solution turned to cloudy. Thereafter, on being asked about the bribe money, the complainant told that the same is kept in the bed of the appellant. Therefore, it is clear that no bribe amount has been recovered from the physical possession of the appellant nor at the instance of the appellant and after the recovery of money, when her hands was washing by sodium carbonate solution, then colour of the solution did not turned pink, which also clearly shows that she has not received any tented notes.
20. Looking to the aforesaid evidence, facts of the case and recovery of currency notes, raised serious doubt about the findings recorded by the trial Court that money was accepted by appellant as illegal gratification. Acceptance of bribe amount itself not establish. In absence of proof of acceptance, question of raising presumption under Section 20 of the PC Act would not arise.
21. The Hon'ble apex Court in the case of Smt. Meena Balwant Hemke Vs. State of Maharashtra, AIR 2000 SC 3377, held as under:
" The essential ingredients to be established to indict a person of an offence under Section 5(1)(d) of the Act are that he should have been a public servant; that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and that he should have obtained a valuable thing or pecuniary advantage for himself or any other person. Likewise, Section 161, IPC, requires that the person accepting the gratification should be a public servant; that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital Cr.A. No. 1093/2019 11 ingredient, necessary to be established to procure a conviction for the offences under consideration.
We have bestowed our careful thought to the submissions made on either side, in the light of the evidence on record. We are of the view that neither the quality of the materials produced nor their proper evaluation could, in this case, be held sufficient to convince or satisfy the judicial conscience of any adjudicating Authority to record a verdict of guilt, on such slender evidence. Indisputably, the currency note in question was not recovered from the person or from the table drawer, but when the trap party arrived was found only on the pad on the table and seized from that place only. The question is as to whether the appellant accepted it and placed it on the table or that the currency note fell on the pad on the table in the process of the appellant refusing to receive the same by pushing away the hands of PW-1 and the currency, when attempted to be thrust into her hands. PW-2, one of the panch witnesses, who accompanied PW-1, as a shadow witness, when he tried to give the bribe, did not support the prosecution case. He has been treated hostile and his evidence eschewed from consideration by the courts below. The lady Constable, Victoria, another shadow witness, who first arrived on the spot after the signal was given by PW-1, was not examined at the trial. Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. In this case, the role of Victoria was to enter first and hold the hands of the accused immediately after the acceptance of the bribe amount and she was stated to have done that, as planned. For reasons best known, such a vital and important witness has been withheld by the prosecution, from being examined. Jagdish Bokade, who scribed the application dated 13.8.1986 for getting copies and who admittedly was all alongwith PW-1 and gave even the idea of lodging a complaint with the Anti-Corruption Bureau, has also been withheld from being examined. The other person, who was present at the place of occurrence though cited initially as witness, was not examined by the prosecution but later was got examined as DW-1 and evidence of this person completely belies the prosecution story. The corroboration essential Cr.A. No. 1093/2019 12 in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW-5, categorically admitted that even as the Inspector of Police, PW-6, arrived, the appellant gave the same version that PW-1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution. The contradictory version of PW-1 of the very incident when earlier examined in departmental proceedings renders his testimony in this case untrustworthy. PW-3, the Head Copyist, seems to be the brain behind all these and that PW-1 as well as Jagdish Bokade appear to be working as a group in this affair and despite the blunt denial by PW-3, his closeness to PW-1 and Jagdish Bokade stand well substantiated. All these relevant aspects of the case seem to have been completely overlooked by the courts below."
22. The Hon'ble apex Court in the case of B. Jayraj Vs. State of Andhra Pradesh (2014) 13 SCC 55 held as under-
"7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P.[1] and C.M. Girish Babu Vs. C.B.I.[2]
9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal Cr.A. No. 1093/2019 13 gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. "
23. For the reasons mentioned hereinabove and in view of the fact that acceptance of bribe has not been established beyond reasonable doubt, this court is of the view that the prosecution has failed to establish charges under Sections 7 and 13(1)(d)/13(2) of the Act against the appellant, hence, the present appeal is allowed and the impugned order is hereby set aside, whereby the appellant has been convicted and sentenced for the aforesaid offence.
24. Appeallant is in jail, therefore, it is directed that appellant be released forthwith, if she is not required in any other case. Office is directed to make arrangements for issuance of release warrant of the appellant.
25. Let the record of the trial Court be sent back to the concerned trial Court alongwith the copy of this order for information and necessary compliance.
(S.K. AWASTHI) JUDGE skt Santosh Kumar Tiwari 2019.06.20 10:40:06 +05'30'