Madhya Pradesh High Court
M.M. Khan vs The State Of Madhya Pradesh on 6 July, 2023
Author: Nandita Dubey
Bench: Nandita Dubey
Cr.A. No.121/2013
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE NANDITA DUBEY
CRIMINAL APPEAL NO.121 OF 2013
BETWEEN:-
M.M. KHAN S/O LATE ABDUL REHMAN KHAN, AGED
ABOUT 51 YEARS, OCCUPATION: PRINCIPAL (SUSPENDED),
GOVERNMENT HIGHER SECONDARY SCHOOL, PEOPAL
KHEDA, TEHSIL AND DISTRICT VIDISHA, NOW ATTACHED
TO THE O/o D.E.O., VIDISHA, R/0 AH-54 AYODHYA NAGAR,
BHOPAL (MADHYA PRADESH)
....APPELLANT
(BY SHRI PRIYANK AGRAWAL - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH SPECIAL POLICE
ESTABLISHMENT, LOKAYUKTA, OFFICE, BHOPAL, DISTRICT
BHOPAL (MADHYA PRADESH)
(BY SHRI ABHIJEET AWASHTI - ADVOCATE)
....RESPONDENT
Reserved on : 20.04.2023
Pronounced on : 06.07.2023
Cr.A. No.121/2013
2
This appeal having been heard and reserved for
judgment, coming on for pronouncement this day, the Court
pronounced the following :
JUDGMENT
This criminal appeal has been filed by the appellant being aggrieved by the conviction and sentence dated 11.12.2012 passed by Special Judge (P.C. Act), Bhopal (M.P.) in Special Case No.06/2010, whereby the appellant has been found guilty for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for two years with fine of Rs. 2,500/- and rigorous imprisonment for two years with fine of Rs.2,500/- respectively with default stipulations.
2. As per prosecution, the complainant, an Assistant Teacher at Government Primary Girls' School, Karondiya applied for withdrawal of Rs.3,00,000/- from his GPF Account for repairs of his house on 28.01.2009. The appellant, who was posted as Principal, Higher Secondary School, Gunga and exercising the drawing and disbursing power, sanctioned an amount of Rs.1,50,000/-. It was alleged that the appellant demanded an illegal gratification of Rs.5,000/- for transferring the amount of Cr.A. No.121/2013 3 Rs.1,50,000/- to the account of complainant. At this, the complainant approached the Special Police Establishment (SPE) Lokayukta office, Bhopal. To verify this complaint, the DVR was handed over to the complainant to record the conversation. The conversation was recorded on 08.07.2009 and on its basis transcript (Ex.P-4) was prepared on 09.07.2009. Preparatory steps were taken on the same day to conduct the trap and accordingly pre-trap memorandum (Ex.P-6) was prepared. According to the prosecution, the complainant went inside the office of appellant for giving the bribe amount but as there are many people inside the office, the appellant asked the complainant to come back on next day, i.e., on 10.07.2009. As per the prosecution, a Purak Karyawahi Panchnama (Ex. P-8) was prepared on 10.07.2009 and the trap party went to the school. It is the case of prosecution that the complainant went inside the office of appellant and handed over to him Rs.5,000/-, which the appellant kept in his pocket. Thereafter, the complainant came out and gave the pre-arranged signal. It is alleged that the appellant realized that he was being trapped, he therefore, took out the bribe money from his pocket and threw it on the table kept outside the office of the appellant and drove away on his motor bike towards Karondiya with one Ram Lakhan Sharma (P.W.-3). He was however, caught mid way and taken to Primary Health Centre nearby, where his fingers and shirts were dipped in the solution of Sodium Carbonate, which Cr.A. No.121/2013 4 turned pink. After completion of the formalities, prosecution was lodged against the appellant on obtaining necessary sanction.
3. In support of the charges under Sections 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, the prosecution examined 11 witnesses. During the course of examination under Section 313 of Cr.P.C., the appellant denied the charges and pleaded innocence. His defence all along was that he was falsely implicated by the complainant and Yogesh Singh Sainger (P.W.-5), who was holding a grudge against him, as appellant had made complainant against Yogesh Singh Sainger (P.W.-5) and issued a show cause notice. His further defence was that voice in the recorder was not his nor he has demanded or accepted the amount.
4. The trial Court, however, on the basis of evidence on record, held the charges against the appellant to be proved and convicted and sentenced him as aforestated.
5. Learned counsel for the appellant has assailed the judgment on the ground that the prosecution has failed to establish the demand and acceptance of the bribe amount as alleged. It is urged that no voice sample of the appellant was obtained and no voice identification was done. It is argued that apart from complainant, who himself was an interested witness, no one has Cr.A. No.121/2013 5 identified appellant's voice. It is further pointed out that editing and tampering with the tape cannot be ruled out, as according to the prosecution story, the call recording was around 15-20 minutes long but the transcript produced in the Court was very short.
6. Learned counsel has further argued that there are many contradictions and improvements in the statement of witnesses. It is argued that according to complainant, appellant threw the bribe money on the table kept out side his office and went on the motor bike, however, admittedly no table was found outside the office of appellant nor any phenolphthalein test was done on that table and on the motor bike to corroborate the statement of complainant. He has further argued that only one of the panch witnesses has been examined, who denied seeing any transaction and the bribe amount was recovered from the complainant himself.
7. Per contra, the learned counsel for the Lokayukta has submitted that the evidence adduced by the prosecution is cogent and convincing to establish the charges against the original accused, hence no interference is warranted.
8. Heard the rival submissions of the learned counsel for the parties and perused the record.
Cr.A. No.121/2013 69. In the present case, complainant (P.W.-1) made a complaint to SP (Lokayukta) on 07.07.2009 as regards the demand of Rs.5,000/- made by the appellant for transferring the sanctioned amount of Rs.1.5 lakhs in his account. He was handed over a micro tape recorder with empty cassette at around 3.15 P.M. (Ex.P-2). As per this witness, he went to the office of appellant and got the conversation recorded. Next day, i.e., on 09.07.2009, at around 10.30 A.M., he handed over the DVR alongwith the second written complaint (Ex.P-3) in the Lokayukta office. According to the complainant, the tape was repeatedly played, where he identified the voice of the appellant and accordingly the transcript (Ex.P-4) was prepared. According to this witness, the conversation recorded in the DVR was about 15 to 20 minutes long. His statement is corroborated by Anil Guha (P.W.-6), Inspector at EOW, Bhopal, in para 1 of his deposition and R.B. Sharma (P.W.-10), Inspector, EOW, Bhopal in para 1 to 3 and 43 of his testimony.
10. The conditions for admissibility of a tape recorded statement has been carved out in Ram Singh and others Vs. Col. Ram Singh 1985 (Supp.) SCC 611, wherein para 32 the Supreme Court has held :-
Cr.A. No.121/2013 732. Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice.
In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
11. Similarly in the case of Nilesh Dinkar Pradkar Vs. State of Maharashtra 2011(4) SCC 143, the Supreme Court has held thus :-
Cr.A. No.121/2013 831. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.
12. On applying these principles to the present case, it is observed that the complainant has denied that it was his voice in the DVR. From the narration of the complainant (P.W.-1), Anil Guha (P.W.-6) and R.B. Sharma (P.W.-10), it is evident that no one accompanied the complainant to verify the complaint. The tape recorder/DVR remained in the exclusive possession of complainant (P.W.-1) from 3.15 P.M. on 07.07.2009 to 10.30 A.M. on 09.07.2009. This DVR was handed over in the office of EOW on 09.07.2009, where it was played several times and the transcript was prepared. This fact that the DVR/cassette remained in the exclusive possession of the complainant creates a doubt regarding the genuinity, as the presumption regarding editing or tampering with the DVR/tape could not be ruled out due to the facility of erase and reuse.
13. Another aspect, which requires consideration is that according to these witnesses, the conversation recorded in DVR Cr.A. No.121/2013 9 was 15 to 20 minutes long but a perusal of the transcript (Ex. P-4) set out below shows that it contains to total eight sentences, the conversation regarding which could not be more than 3-4 minutes (Ex. P-4):
vkosnd & ueLrs lj
vukosnd & gkWa dgks
vkosnd & lj] eSa dy vkidks pkj gtkj :i;s ns nwWaxkA
ckdh ,d gtkj :i;s ,d nks fnu esa ns nwWaxkA
vukosnd & ugha HkkbZ iwjs djksA rHkh rqEgkjk dke gks tk;sxkA vkosnd & Bhd gS lj] eSa dy vkidks iwjs ikap gtkj :i;s ns nwWaxkA ysfdu lj lqcg Ldwy fudy tkÅWaxkA nksigj nks cts rd vkÅWaxkA vukosnd & Bhd gS] Bhd gS vk tkuk( vHkh tkvks vkosnd & th
14. Moreover, it is only the complainant (P.W.-1), who had identified the voice of appellant in the recorded conversation, though the prosecution has examined Asst. Teacher Ram Lakhan Sharma (P.W.-3), Peon Roopram Kushwaha (P.W.-4) and UDC Yogesh Kumar Sainger (P.W.-5), who worked in the same school where the appellant was the Principal and familiar with his voice, but these witnesses were never asked to identify the voice in the tape recorder. Further, as admitted by R.B. Sharma (P.W.-10), no Cr.A. No.121/2013 10 voice sample was collected nor the recording was sent for voice testing. Under such facts and circumstances, much reliance cannot be placed on the recorded conversation in the DVR or the transcript (Ex. P-4) and same cannot be taken as proof of demand.
15. Learned counsel has urged that the acceptance and recovery of bribe money has not been proved. He has relied upon various decisions of the Supreme Court in support of the proposition that unless demand and voluntary acceptance of bribe amount is established, presumption under Section 20 of the Prevention of Corruption Act will not apply.
16. In the case of K. Samantha Vs. State of Telangana (2022) 4 SCC 574, the Supreme Court has held thus :-
10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act.
11. In the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another1, this Court has summarised the well-settled law on the subject in paragraph 23 which reads thus:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and Cr.A. No.121/2013 11
(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."
(emphasis added).
17. In the case of N. Vijaykumar Vs. State of Tamil Nadu (2021) 3 SCC 687, the Supreme Court has held :-
26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused.
Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)
(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal [email protected].(Crl.)Nos.4729-30 of 2020 gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.
27. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under :
Cr.A. No.121/2013 12"7. Insofar 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 v. State of A.P. [(2010) 15 SCC 1 :
(2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] .
18. In the instant case, as per the complainant (P.W.-1), he switched on the tape recorder (Article -G), while going inside the room to record the conversation. According to complainant (P.W.-1) he told the appellant that he has brought Rs.5,000/- as asked by him, on which the appellant accepted the bribe amount and kept it in his shirt's pocket and informed him that money has been transferred to his account. However, as per K.K. Gupta (P.W.-2) (para 10), this cassette was found empty when played. As per this witness, he came out of the room and gave the prearranged signal. It is stated that on seeing this signal, the appellant became suspicious and threw the money on the table placed outside the principal's office and went on motor bike with R.L. Sharma (P.W.-3) towards Karondiya. As per this witness, he picked up the bribe amount from the table, as it was the lunch break and the students were running in the school ground.
Cr.A. No.121/2013 1319. In this regard, according to R.B. Sharma (P.W.10), Anil Guha (P.W.-6) and Arun Mishra were sent inside the school with the complainant to facilitate and observe as to what transpired between the complainant and appellant. However, Arun Mishra has not been examined as witness by the prosecution. Anil Guha (P.W.-6) is also not an eye witness, as he admitted that he was standing outside the main gate of the school from where office of Principal was not visible.
20. As per this witness, the panch witnesses despite being instructed to go with complainant (P.W.-1), did not do so, whereas according to the panch witness K.K. Gupta (P.W.-2), only complainant was sent inside the school. According to R.B. Sharma (P.W.-10), complainant (P.W.-1) went alone inside the school and came out of the school after 15-20 minutes and inform him first about the incident. This fact is also corroboration from the evidence of complainant (P.W.-1), wherein he has stated that he went alone inside the Principal's Office, whereas rest of the party members were standing outside the school near the hand pump and tea stall at a distance of 200-250 ft. Presence and importance of a shadow/independent witness in the trap party is to facilitate such witnesses to see and over hear as to how and what happened at the time of alleged transaction but in the instant case, there is no explanation by the prosecution as to why the panch Cr.A. No.121/2013 14 witnesses did not accompany the complainant at the time of trap. Thus, this factum of the appellant throwing the bribe amount and the complainant (P.W-1) picking it up from the table could not have been seen by any of the members of the trap party, as admittedly they were all standing outside the gate of the school. On this aspect, there is no other evidence except that of complainant (P.W-1).
21. Though, the prosecution has unsuccessfully tried to introduce Ramlakhan Sharma (P.W.-3), who accompanied the appellant on motor bike, as an eye witness, who has stated that after lunch, when he came out from staff room for washing his hands, he saw the appellant throwing something out from his pocket. However, he has clarified that he was not able to see as to what was actually thrown by him. However this statement could only be taken as an improvement as admittedly (see para 9) he did not inform the Lokayukta regarding this fact on 10.07.2009, though very much present at the Primary Health/Centre, where initial proceedings were drawn. It is further interesting to note that this person was not made witness to any of the proceedings done at Primary Heath Centre. According to Ramlakhan Sharma (P.W.-3), his statement was recorded after 4-5 days in the Lokayukta office, where he was made to sign on the statement and hence hit by the provisions of Section 162 of Cr.P.C. The fact that Cr.A. No.121/2013 15 his statement was recorded after 4-5 days is also corroborated by R.B. Sharma (P.W.-10) in para 48 of his evidence. Hence, no reliance can be placed on his testimony.
22. According to R.B. Sharma (P.W.-10), while he was standing outside the school gate, complainant came out of the school after 15-20 minutes and informed him that appellant has run away with one Teacher on the motor cycle towards Karondiya. On receiving this information, he sent Anil Guha (P.W.-6), Vijay Sen and the complainant (P.W.-1) after the appellant who was then stopped/intercepted, while on way to Karondiya and taken to nearby Primary Health Centre, where he was asked regarding the bribe money, whereas according to Ramlakhan Sharma (P.W.-3), who accompanied appellant on motor bike, they were on the way to Karondiya for inspection of Primary School, when appellant received a call on his mobile asking them to come back as DEO has reached the school, hence they were returning back to the school but were stopped on the way near Primary Health Centra by two persons on motor cycle, who introduced themselves as officers from Lokayukta and caught hold of appellant by hands and took him to the Primary Health Centra, at the time, the appellant had asked them as to why he was being held. Panch witness K.K. Gupta (P.W.-2) has admitted that when appellant was apprehended, he got hyper and stated that he has been falsely Cr.A. No.121/2013 16 accused. Similar is the statement of R.B. Sharma (P.W.-10) that when he reached the Primary Health Centre, he saw complainant (P.W.-1) struggling and other inspectors holding the appellant by his hands and collar. In such situation, when appellant was struggling, the possibility that traces of phenolphthalein powder getting rubbed on his hands and shirt could not be ruled out.
23. Further as per this witness, the bribe amount was recovered from the complainant himself at the Primary Health Centre, who then narrated, that the amount was thrown on the table by the appellant which he had picked up. His statement is corroborated by K.K. Gupta (P.W.-2) and Anil Guha (P.W.-6) and Ramlakhan Sharma (P.W.-3). This witness has admitted that after completing the proceedings at the Primary Health Centre, he went to the school, but found no such table outside the Principal's office, as narrated by the complainant. He admitted that it was an important factor and also was necessary to conduct the phenolphthalein test on the table but he did not tried to enquire about the table from the staff or the Teachers. He further admitted that the complainant has not shown him the table before leaving for primary health centre. According to this witness, the spot map of the school (Ex.P-11), though drawn at the instance of complainant (P.W.-1) but it did not show the position/placement of the table on which the bribe money was thrown.
Cr.A. No.121/2013 1724. Another important aspect of the case is that complainant as well as R.B. Sharma (P.W.-1)) were aware that the money was already transferred in the account of complainant (P.W.-1). This fact the amount was already transferred in the account of complainant (P.W.-1), prior to the trap is also evident from the statement of Yogesh Kumar Sengar (P.W.-5), who has admitted that on 25.04.2009, on his note sheet (Ex. P-27), appellant sanctioned the amount of Rs.1.5 lakhs on the application of complainant from his GPF account as part final for renovation of his house. According to this witness, he placed the voucher before the appellant on 09.06.2009 and the appellant called him on 10.06.2009 to prepare the cheques in the name of Parvat Singh (P.W.-1) and Kailash Narain. He further admitted that he was given a show cause notice by appellant on 01.07.2009 (Ex. D-14- C and D-18) for dereliction of duty and his salary was also stopped. Further, the note sheets (Ex. P-27 & P.-28) show that an amount of Rs.1.50 lakhs as part final was sanctioned on 05.06.2009 and the Sub-Treasury Officer was asked to prepare the vouchers on 06.06.2009 (Ex. P-32). Entry of this amount and the bill register was made on 06.06.2009. The list showing the details of cheque and the amount which is to be transferred (Ex.P-30), the deposit slip (Ex.P-31) shows that the amount of Rs.1.5 lacs was transferred in the account of complainant on 10.07.2009.
Cr.A. No.121/2013 18Kailashnarayan Namdeo (D.W.-1), posted as UDC in the school has also admitted that Accountant Yogesh Kumar Sengar (P.W.-5) gave him the cheque alongwith the list (Ex.P.-30 and P-31) to deposit in the bank, which was deposited at 12.00 noon on 10.07.2009. Once, the appellant has already sanctioned the amount, it was the duty of the concerned Accountant, i.e., Yogesh Kumar Sengar (P.W.-5) to prepare the vouchers and cheques and place them for signature before the appellant. As per Yogesh Kumar Sengar (P.W.-5), he placed the voucher before the appellant on 09.07.2009 and prepared the cheque on 10.07.2009, under such fact situation, there was no occasion or motive for the appellant to demand the alleged bribe amount.
25. From the aforediscussed, it is evident that the corroboration, that is essential in a case like this for what actually transpired at the time of alleged occurrence and acceptance of the bribe is very much wanting in this case. The story of alleged demand and acceptance of bribe money by the appellant has, thus, not been conclusively proved and the fact that the solution turn pink on dipping appellant's finger and shirt in it, above would not be sufficient to hold the appellant guilty of offence as charged.
26. This Court cannot lose sight of the fact that though complainant is a competent witness, however his evidence is required to be scrutinized with great care and caution for the Cr.A. No.121/2013 19 reason that if the complainant any how wanted to get the appellant trapped, he had ample opportunity to come in contact with the tainted currency which was carried by him in his pocket prior to the alleged handing over to the appellant. Moreover, as evident from evidence of prosecution witnesses, the appellant was caught hold of by hands and collar by the complainant and other members of trap party and brought to the Primary Health Centre. Moreover, R.B. Sharma (P.W.-10) being officer of the Lokayukta is an interested witness. He being the architect of the trap and the head of the raiding party was deeply concerned with the success of the case and Anil Guha (P.W.-6) is admittedly a seasonal witness for Lokayukta as he admitted that he has appeared as witness in 12-13 such cases. Their evidence, therefore, could not furnish the kind of corroboration required in the circumstances of the case.
27. It is settled preposition of law that conviction of accused cannot be founded on the basis of inference. In such cases of bribery, the demand and acceptance of bribe money should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence, where each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard to complete the chain duly supported by appropriate evidence. However, in the present case, Cr.A. No.121/2013 20 it is seen that none of witnesses examined by the prosecution were eye witnesses to the demand or to the acceptance of money by the appellant from Parwat Singh (P.W.-1).
28. Though, it has been argued that appellant was falsely implicated at the behest of complainant (P.W.-1) and Yogesh Kumar Sengar (P.W.-5), however this aspect loses significance in view of the fact that demand and acceptance of bribe amount has not been found proved by this Court.
29. In view of the aforediscussed, the conviction of appellant under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 cannot be sustained. Accordingly, the conviction and the sentence imposed on the accused/appellant by the trial Court is set aside and the appeal is allowed. The accused/appellant is acquitted from the charges. He is on bail, his bail bonds stand discharged.
(Nandita Dubey) Judge 06/07/2023 gn SMT. GEETHA NAIR 2023.07.06 17:22:45 +05'30'