Madhya Pradesh High Court
Bharatlal vs State Of M.P. on 8 July, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
CRIMINAL APPEAL No. 1015 of 2007
BETWEEN:-
BHARATLAL S/O SUKHARAM PATIDAR, AGED
ABOUT 55 YEARS, OCCUPATION: SERVICE
VILL.DHAMNOD (MADHYA PRADESH)
.....APPELLANT
(BY SHRI L.K. BHATNAGAR- ADVOCATE)
AND
STATE OF M.P. P.S THRU.SPL.POLICE
ESTAB.,BHOPAL,UJJAIN DIVISION (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI VAIBHAV JAIN- ADVOCATE)
.....................................................................................................
Reserved on : 03.05.2024
Pronounced on : 08.07.2024
...........................................................................................................
This appeal having been heard and reserved for orders, coming
on for pronouncement this day, the court passed the following:
JUDGEMENT
1] Heard finally, with the consent of the parties.
2] This criminal appeal has been filed under Section 374(2) of Cr.P.C. against the judgement of conviction and sentence dated 22.08.2007, passed in Special Case No.1 of 2005 by Special Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 2 Judge (Prevention of Corruption Act), Ratlam (MP) whereby, while finding the appellant guilty under Section 7 and 13(1)(d) read with Section 13 (2) of The Prevention of Corruption Act, 1988 (hereinafter referred to as „the Act of 1988‟), has convicted and sentenced the appellant as under:-
Conviction Sentence
Section Imprisonment Fine In default of
payment of fine
7 of Prevention 1 year R.I. Rs.1,000/- 1 month R.I.
of Corruption
Act, 1988
13(1)(D) read 2 years R.I. Rs.2,000/- 2 months R.I.
with Section
13(2) of
Prevention of
Corruption Act,
1988
Both the sentences to run concurrently.
3] In brief, the facts of the case are that the appellant Bharatlal,
who was posted as Patwari Halka No.4, Village Panched, Tehsil and District Ratlam, caught red handed with Rs.2,000/- which he took as a bribe for issuance of Fard Batwara to the complainant. 4] According to the case of the prosecution, on 29.04.2004, the complainant Mohanlal Balsora (PW-3) informed the S.P. Lokayukt, Ujjain that the appellant Bharatlal who was posted as Patwari is demanding a sum of Rs.2,000/- to issue Fard Batwara, to which, he was asked to lodge a report in writing, and on that day only, two independent witnesses namely Dhruv Bhargava and K.C. Sanghi, both Assistant Engineers, Water Resource Department were asked to come on 30.04.2024 at 8:00 a.m. in the morning. On 30.4.2024, the complainant Mohanlal (PW-3) appeared before the concerned Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 3 Superintendent of Police, and was referred to the Inspector Prafull Choudhary (PW-6). In his complaint, the complainant mentioned that the partition amongst his four brothers has already taken place, of which proceedings also initiated in Tehsil Court Namli around one year ago, on the basis of which, a Batwara Fard was to be issued by the Patwari, the appellant Bharatlal herein, and when the complainant met with the appellant Bharatlal, he demanded a sum of Rs.6,000/- to issue Batwara Fard. However, after the complainant pleaded with the appellant, he assented to receive Rs.2,000/-, and called the complainant with the amount on 30.04.2004. The complainant also stated that he does not wish to pay the bribe to the appellant and wants him to be caught red handed. Subsequently, after completing the procedural formalities, a trap was laid and as planned, when the complainant Mohanlal met with the appellant Bharatlal, he gave a sum of Rs.2,000/- comprising of two currency notes of Rs.500/- denomination, and ten currency notes of Rs.100/- denomination each, with which the appellant was caught red handed. After the investigation completed, the charge-sheet was filed and the learned Judge of the Trial Court, after recording the evidence has convicted the appellant as aforesaid, and being aggrieved of the same, the present appeal has been preferred.
5] Shri Lokesh Bhatnagar, learned counsel for the appellant has submitted that the learned Judge of the Trial Court has erred in appreciating the evidence on record in its proper perspective. It is submitted that the entire investigation got vitiated on account of non- preparation of panchnama after the conversation was recorded by the Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 4 complainant with the appellant, and the voice recorder was brought back to the Police Station. It is submitted that it was incumbent upon the Investigating Officer to prepare the panchnama regarding the physical state of the tape recorder, and in the absence of the same, it cannot be said that due procedure was followed in recording the transcript of the conversation. It is submitted that once the conversation is removed from the evidence, there is no cogent material available on record to suggest that the appellant had actually committed the offence when his defence is that the amount was received by him towards the sale of chana (Chickpea). 6] Shri Bhatnagar, has also submitted that admittedly, the roznamcha report was never recorded by the Police Station, which in itself is sufficient to vitiate the entire investigation because it would never be known as to what transpired prior to the appellant was caught red handed along with a sum of Rs.2,000/- by the concerned raiding party. Counsel has also drawn the attention of this Court to the deposition of the Investigating Officer PW-6 Prafull Choudhary, in para 36 of which he has stated that he has not seized any document regarding Fard Batwara, which also substantiates the appellant‟s defence that no such application was ever filed by the complainant and, in the absence of any such application, there was no occasion for the appellant to demand any gratification for Fard Batwara. 7] Shri Bhatnagar has also submitted that no such application was pending before the Naib Tehsildar at Tehsil Office regarding partition and thus, the appellant was not in a position to demand any amount from the complainant, which fact has also been proved by PW-2 Naib Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 5 Tehsildar, who has also stated that no application for partition is pending.
8] Counsel has also submitted that otherwise also, the appellant had sold 2 quintal of American Double Dollar Chana @ Rs.3,000/- per quintal, for which, an agreement was also entered into between the parties, which was signed by the appellant as also the complainant. Counsel has drawn the attention of this Court to Ex.D/2, which is said to be a memo written by the complainant that he has purchased American Dollar Chana at the rate of Rs.3,000/- per quintal. In this document, the witnesses Jagdish Chand(DW-1) and Nathulal (DW-2) have also signed in addition to the complainant Mohanlal (Pw/..). Thus, it is submitted that even if it is admitted that the appellant was caught red handed while taking Rs.2,000/-, it cannot be lost sight of that the aforesaid amount was obtained by him towards the sale of American Dollar Chana, which is evident from the agreement dated 25.04.2004, vide Ex.D/2. It is submitted that the independent witnesses Jagdish Chand and Nathulal have have deposed that the aforesaid transaction took place in front of them. 9] Counsel has also drawn the attention of this Court to the deposition of DW-2 wherein, he has stated that the appellant Bharatlal has 40 bigha land, which is an irrigated land. Thus, it is submitted that the impugned order deserves to be set aside on the basis of the aforesaid evidence adduced by the appellant in his defence. 10] In support of his submissions, counsel for the petitioner has relied upon the decision rendered by the Supreme Court in the case of Neeraj Dutta Vs State (Government of NCT of Delhi) reported as Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 6 (2023) 4 SCC 731; Soundarajan Vs. State Rep. by the Inspector of Police Vigilance Anticorruption Dindigul reported as 2023 SCC OnLine SC 424; P. Satyanarayana Murthy Vs. Dist. Inspector of Police and another reported as AIR 2015 SC 3549; V.Sejappa Vs. The State by Police Inspector Lokayukta, Chitradurga reported as 2016(3) Supreme 150; Pooja Pal Vs. Union of India and Others reported as (2016) 3 SCC 13, Jagtar Singh Vs State of Punjab passed in CRA No.2136/2010 dated 23.03.2023. Reliance is also placed on the decision rendered by this Court in the case of Arun Kumar Mishra Vs. The State of M.P., passed in CRA No.605/2011 dated 26.10.2023.
11] The prayer is opposed by the counsel for the respondent Shri Vaibhav Jain and it is submitted that the prosecution has led cogent evidence in support of its story, which could not be rebutted by the appellant during the cross-examination of the prosecution witnesses. It is submitted that the appellant was caught red handed along with Rs.2,000/- and thus, a presumption has arisen in the present case as provided under Section 20 of the Act of 1988, and Section 114 of the Evidence Act, 1872 hence it was incumbent upon the appellant to rebut the aforesaid evidence by leading effective evidence. It is submitted that the appellant himself has signed the transcript along with the complainant, which was also read over to them in the presence of other witnesses. Counsel has also drawn the attention of this Court to Ex.P/6, which is a panchnama prepared at the time when the trap party came back to the Police Station, in which it is clearly stated that the tape recorder was also obtained from the complainant Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 7 and its transcript was also prepared, for which a separate panchnama was also made, which is Ex.P./7, which is also signed by the appellant. It is submitted that the appellant never protested that the aforesaid transcript or the conversation never took place and has also not denied that the voice in the voice recorder does not belong to him. 12] Counsel for the respondent has also submitted that so far as the agreement Ex.D/2, which has been proved by the appellant is concerned, the same has been rightly discarded by the learned Judge of the Trial Court as apparently, the appellant who was a Government servant, was not allowed to carry on any trading activity, and apart from that, the appellant has also not placed on record any document to demonstrate that he was a landlord. It is further submitted that so far as the documents relating to Batwara Fard are concerned, admittedly, the aforesaid documents are not placed on record, but because of that only no adverse inference can be drawn against the prosecution, for the reason that even in the conversation which took place between the appellant and the complainant, the appellant had sought a fresh application from the complainant, which is also apparent from the transcript Ex.P/7.
13] Shri Jain, learned counsel for the respondent has also drawn the attention of this Court to the transcript Ex.P/7, in which the appellant can be clearly seen to be demanding the bribe wherein, he has clearly stated that "daan dakshina kari jao", the literal English translation of which would be, "before leaving, let some token amount be paid" or in other words, the complainant must make some payments to the appellant before his leaves, which is nothing but illegal gratification. It Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 8 is also submitted that the appellant had demanded a sum of Rs.6,000/- from the complainant, however, it was settled for Rs.3,000/-, and the complainant can be seen to be saying to the appellant that he is paying a sum of Rs.2,000/-, and Rs.1,000/- he would pay in one or two days. 14] Counsel has also submitted that the appellant has also not denied the transcript in clear words and on a question (No.74) being put to him u/s.313 of Cr.P.C., that transcript of his conversation has also been prepared, he has stated that it is wrong, and in reply to question No.73, that his voice is recorded in the tape recorder along with the voice of the complainant, he has simply said that he had no conversation with the appellant. It is also submitted that even in his defence, he has not taken this plea that he had no conversation with the complainant.
15] Counsel has submitted that although a plea of previous enmity has been taken by the appellant that he was having a dispute with Mohanlal from an earlier time, as he had given certain patta to certain persons in the land adjacent to the complainant‟s land, however, this fact is not even put to the complainant in his cross-examination. 16] In support of his submissions, counsel for the respondent has relied upon the decision rendered by the Supreme Court in the case of Neeraj Dutta Vs State (Government of NCT of Delhi) reported as (2023) 4 SCC 731; M. Narsinga Rao Vs. State of A.P. reported as (2001) 1 SCC 691; Girja Prasad (Dead) By Lrs. Vs. State of M.P. reported as (2007) 7 SCC 625; State of W.B. Vs. Kailash Chandra Pandey reported as (2004) 12 SCC 2; Subramanian Swamy Vs. Manmohan Singh and Another reported as (2012) 3 SCC 64;
Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 9Niranjan Hemchandra Sashittal Vs State of Maharashtra reported as (2013) 4 SCC 642; K.C. Sareen Vs CBI, Chandigarh reported as (2001) 6 SCC 584. Reliance is also placed on the decision rendered by this Court in the case of Laxmikant Vs. State of M.P. reported as I.L.R. (2015) M.P. 1034 and State of M.P. Vs. Kamalsingh passed in CRA No.655/2007 dated 11.12.2017.
17] Heard, learned counsel for the parties and perused the record. 18] On perusal of the record it is found that Ex.P/6 and P/7 are relevant. Ex.P/6 is the Japti Panchnama wherein, the procedure that followed after the trap of the appellant has been narrated, whereas, Ex.P/7 is the transcript of the conversation between the complainant Mohanlal (Pw/3) and the appellant Bharatlal, thus, contention of the appellant that no proper panchnama was prepared is without any substance, hence rejected.
19] From the narration of the aforesaid facts, it is also apparent that the complainant Mohanlal (Pw/3) had no time to return the tape recorder to the respondent prior to the trap of the appellant, as he had no time left since the time gap between the trap and the voice recording was negligible. So far as the transcript is concerned, it is lastly mentioned in it by the complainant that he is giving Rs.2,000/- to the appellant, and Rs.1,000/- he would pay in one or two days. The appellant is also seen to be saying to the complainant "daan dakshina kari jao" which clearly means that no sooner the demand of Rs.6,000/- was made, the complainant also paid Rs.2,000/- to the appellant. Whereas, in his statement recorded under Section 313 of the Cr.P.C., the appellant has been specifically asked about the demand of Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 10 Rs.6,000/-, to which he has stated that he had entered into a transaction with the complainant to sell two quintal chana at the rate of Rs.3,000/- per quintal, and when he was asked that the complainant has paid a sum of Rs.2,000/- to him, he has stated that it was in respect of chana crop only.
20] In respect of Ex.P/7, which is the transcript of the recording, this court finds that it has been admitted by the complainant Mohanlal, although the appellant has simply denied the same. In his accused/defence statement recorded under Section 313 of Cr.P.C., the appellant‟s defence is that he had sold two quintals of Dollar Chana to the complainant at the rate of Rs.3,000/- per quintal, which was agreed by the complainant in the presence of two witnesses, Jagdish Chand and Nathulal, DW-1 and DW-2 respectively, and thereafter, the complaint Mohanlal intended to give less amount to the appellant, to which he had refused.
21] So far as the deposition of complainant PW-3 Mohanlal is concerned, in para 8 of his deposition, when the tape recorder was played in the Court, he has recognized his own as also the voice of the appellant. Although he has admitted that at some places the voice is not properly audible, however, surprisingly, in his cross-examination, he has not been questioned about the transcript and not a single suggestion has been made to him challenging the veracity of the transcript Ex.P/7.
22] It is also found that the transcript Ex.P/7 has been proved by panch witness PW-1 Dhruv Bhargava, who has stated in para 5 of his deposition that when the transcript was being prepared, the Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 11 complainant had recognized his own voice as also that of the appellant, but surprisingly, he has not been cross-examined on this point or regarding the veracity of aforesaid transcript by the defence. Thus, the transcript has literally been gone un-rebutted by the defence. It also give rise to a presumption that the appellant has no explanation to offer regarding the transcript Ex.P/7, which has also been proved by PW-6 Prafull Choudhary Investigating Officer, who has stated that on Ex.P/7 he had appended his signature on each page and from A to E, the appellant has appended his signature and on the said document the complainant as also two other punch witnesses had also signed. Although he has been cross-examined on this point and has been suggested that the tape recorded was played to each and every persons separately, to which he has denied, although he has admitted that the names of punch witnesses have not been mentioned in the aforesaid panchnama Ex.P/7. He has also denied that the speaker of the tape recorder could not be played at such a volume which may be heard by more than one person, to which he has again denied. He has also denied that the voice in the tape recorder was unclear/inaudible. He has also been suggested that in the transcript, the conversation was in respect of two quintal chana, to which also he has denied. 23] On perusal of Ex.P/7, it is found that on it, the names of two witnesses K.C. Sanghi and Dhruv Bhargava are mentioned, however, beneath the signatures appended in the said document on each page, the names of all the persons who have signed the document, have not been mentioned, however, in the considered opinion of this court, it is hardly relevant as panch witness PW-1 Dhruv Bhargava has already Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 12 been examined and has not been suggested by the defence that he did not sign on Ex.P/7.
24] The appellant has also taken a plea that he had given a proposal to give pattas to the landless persons and in this proposal, the land of the complainant ad-measuring 0.400 hectare situated at Survey No.412 was also falling, hence, Mohanlal was angry with him as he was apprehending that his crops would be damaged by the people who have been given the pattas and thus, he has been falsely implicated in the case. On due consideration of such plea, it is found that no such document has been placed on record to demonstrate that any such land of the complainant or any land adjacent to his land was acquired by the State at the instance of the appellant on which the landless persons have been given pattas. Apart from that, it is also found that this defence of acquiring complainant‟s land or any adjacent land for giving pattas to landless persons has not been put to the complainant in his cross-examination, although, he has been suggested that the amount was given by the appellant towards payment of chana, to which also he has denied. He (the complainant) has also denied the document Ex.D/2 which is the agreement to sell dollar Chana to the complainant or that his signatures are appended to the said document. This Court is of the considered opinion that if the appellant had come up with a defence that he had sold two quintals of chickpeas (Dollar Chana) to the complainant, then it was incumbent upon him to demonstrate that he holds so much of land which can procure two quintals of chana, and he also ought to have proved on record the crop which was harvested prior to the transaction, which procured two Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 13 quintals of chana. However, none of such evidence is on record to substantiate the defene of the appellant, and merely if DW-2 Nathulal in his cross-examination has stated that Bharatlal had 40 bigha land, it is of no consequence in the absence of any tangible evidence. 25] Shri Lokesh Bhatnagar, learned counsel for the appellant has stressed upon the fact that an application for verification of the complainant‟s signature on Ex.D/2 which is an agreement to sell the Chana (chickpea) was also filed in the Trial Court, but the same was dismissed vide its order dated 27.02.2007, which has led to serious prejudice to the defence of the appellant. On due consideration of the said submission, this Court is of the considered opinion that the aforesaid document was of no consequence to the appellant in the light of the conversation which took place between the appellant and the complainant, in which there is absolutely no reference to any chana having been sold by the appellant to the complainant, and the entire conversation is regarding the application, which according to the appellant, was to be filed before the Tehsildar. 26] On perusal of the deposition of PW-3, the complainant Mohanlal, it is also found that he has emphatically denied that there was any transaction between him and the appellant regarding sale of chana and otherwise also, if the story of the appellant is considered to be true, then there was no reason for the appellant to accept Rs.2,000/- only, whereas, according to him, he was to receive Rs.6,000/- towards sale of two quintals of chana. In such circumstances, the deposition of the defence witness DW-2 Nathulal who is a witness to Ex.D/2 the agreement for sale of Chana, is of no consequence. Similarly, the Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM 14 testimony of DW-3 Satyanarayan, who was the Patwari, who has produced certain revenue records, as also DW-4 Gopal Choudhary, who was posted as Gram Pradhan, who has proved the encroachment report Ex.D/5, is also not relevant.
27] In such facts and circumstances of the case, this Court is of the considered opinion that the prosecution has been able to prove its case of demand of bribe by the appellant beyond reasonable doubt and does not find any illegality in the finding recorded by the learned Judge of the Trial Court.
28] So far as the decisions cited by the counsel for the appellant are concerned, the same are distinguishable on facts. 29] Accordingly, the appeal being devoid of merits, is hereby dismissed. Appellant is on bail, his bail bonds are cancelled, and he is directed to surrender before the Trial Court within two weeks‟ time for undergoing the remaining jail sentence.
(SUBODH ABHYANKAR) JUDGE Bahar Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/8/2024 5:51:07 PM