Madhya Pradesh High Court
Giriraj vs The State Of Madhya Pradesh on 6 April, 2021
Equivalent citations: AIRONLINE 2021 MP 218
Author: Vivek Rusia
Bench: Vivek Rusia
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CRA No.7524/2019
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
(SINGLE BENCH: HON'BLE Mr JUSTICE VIVEK RUSIA)
Criminal Appeal No.7524/2019
Giriraj - Appellant.
Versus
The State of M.P.
(Through Special Police establishment) - Respondent
___________________________________________________ Shri Manish Yadav, learned counsel for the appellant. Shri Vaibhav Jain, learned counsel for the Respondent. ___________________________________________________ ( J U D G M E N T) ( Delivered on 06/04/2021) The appellant has filed a present appeal under Section 374 of Cr.P.C. against the judgment dated 29.08.2019 passed by Special Judge, Prevention of Corruption Ac , (hereinafter referred as " PC Act "), Neemuch in Special Case No.300002/2016 whereby the appellant has been convicted for the offence punishable under Section 13(1) (d) read with Section 13(2) of I.P.C. Act and sentenced to 4 years R.I. with fine of Rs. 4,000/- with default stipulation. The case of the prosecution, in short, is as under:
1. On 03.08.2015 near about 10:30 complainant Kailash Malviya (PW-1), visited the office of Special Police Establishment, Ujjain (Lokayukt) and submitted a written complaint (Ex.P/1) to the effect that he is a resident of Gram Panchayat Fofaliya, Tehsil- Jeeran, District - Neemuch and had submitted an application for allotment of the land on lease under Mukhyamatri Awas Yojna. On 01.08.2015, for the aforesaid work, he met Secretary Giriraj Jat, secretary of Gram Panchayat Fofaliya (hereinafter referred to as the appellant).
For grant of land lease, he has demanded Rs. 2,000/- as a bribe.
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CRA No.7524/2019According to the complainant, he is not willing to give a bribe to him and wants him to be caught while accepting a bribe The said application was entertained by the Superintendent of Police and handed over to SI Shri Dinesh Rawat (PW-10) for verification of its genuineness. Shri Rawat gave a digital voice recorder to the complainant and explained to run it. In order to verify illegal demand by the appellant, the complainant was directed to record the conversation with the appellant about the demand of bribe and for this work constable Sunil Parsai (PW-7) was sent along with him. After recording such conversation secretly, he handed over the voice recorder to Dinesh Rawat (PW-10), who heard and recorded its satisfaction about the demand of bribe by the present appellant from the complainant. The complainant was asked to submit another written complaint to the Superintendent of Police EPS. The transcript of the said conversation was prepared and FIR was registered as Crime No.0/35/15 under Section 7 of the P.C. Act on 13.08.2015.
2. Thereafter, Shri Rawat has constituted a trap team in order to catch the present appellant red-handed while accepting the bribe of Rs.2,000/-. Dinesh Rawat has brought entire facts to the knowledge of S.P. Vide letter dated 05.08.2015, the Superintendent of Police has requested Additional Collector, Ujjain to send two independent witnesses. Additional Collector vide order dated 06.08.2015 has sent Dr. Bhupendra Patidar V.A.S. and Shri A.R. Negwanshi, Assistant Superintendent, Polytechnic College, Ujjain as Panch witnesses. The complainant and Panch witnesses reached the S.P. Office at 07:00 am of 06.08.2015. Both the complainants were read over by the I.O.
before the witnesses and complainant. The complainant has admitted the contents of the complaints to be true. The voice recorder was played and the complainant has admitted his voice and the voice of the appellant in front of the witnesses and it was again kept in the
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CRA No.7524/2019sealed cover. CD was prepared and it was kept along with certificate under Section 65-B of the Indian Evidence Act.
3. The complainant was directed to arrange Rs. 2,000/- in the denomination of Rs. 500- 500. The complainant has arranged the currency and gave it to the I.O. The Phenolphthalein power was applied in the said currency and it was given to the complainant for handing over to the appellant and he was explained about the manner of giving the signal to the member of trap team after handing over the tainted money to the appellant. The team left the office Superintendent of Police in two government near about 09:00 am and reached the Panchayat Bhawan, Jeeran. The complainant along with two shadow witnesses namely constable Sunil Parsai and Constable Sandeep Kadam was sent inside the Panchayat Bhawan. The complainant went inside the Panchayat building and handed over the bribe money to the appellant and immediately gave a signal. The two witnesses immediately entered inside the Panchayat building and caught hold of both the hands of the appellant. The remaining members of the team went inside and found the appellant sitting on the chair and Dinesh Rawat I.O.gave his introduction and the introduction of other members to him. The appellant disclosed his name as Giriraj, Secretary, Gram Panchayat Fofaliya. Solution of sodium carbonate powder was prepared which was colourless. The appellant dipped both hands in the said colour, which turned into pink colour. The tainted note was recovered from the left pocket of his shirt. They were checked and verified to be the same given by the complainant. The trap team conducted the necessary remaining procedure, appellant was arrested and released on bail upon furnishing surety. For the remaining investigation, the Superintendent of Police authorized Shri Basant Shrivastava, who completed the investigation and filed the Final Report ( Chalan) before the
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competent court.
4. Learned Special Judge took the cognizance on 23.03.2016 and released the appellant on bail. Thereafter, vide order dated 01.12.2016 the charges under Section 13(1) (d) read with Section 13(2) of I.P.C. of P.C. Act were framed against the appellant. The charges were read over to the appellant and denied the charges and pleaded for trial.
5. In order to prove the charges, the prosecution has examined as many as 11 witnesses and got exhibited 34 documents. In defence, the appellant got exhibited three documents i.e. (1) resolution passed by Panchayat for allotment (D-1), Letter written by the Panchayat to the CEO, Janpad Panchayat for allotment of the certificate of the lease.
6. After appreciating the evidence that came on record the learned Special Judge vide judgment dated 29.08.2019 has convicted the appellant for the offence punishable under Section 13(1) (d) read with Section 13(2) of I.P.C. Act and sentenced him to 4 years R.I. with fine of Rs. 4,000/- with default stipulation
7. In order to prove the demand by the present appellant, the prosecution has examined Kailashchandra as P.W.1. According to his testimony for obtaining the lease of land under "Mukhyamantri Awas Yojna", he submitted an application on 3.7.2015 in the Gram Panchayat along with a photocopy of Voter card, Rashaon card and two photographs. Along with him, 10-12 villagers had also submitted the applications. For the aforesaid purpose, he alone met with the present appellant who was working as Secretary of the Gram Panchayat Fofaliya at the relevant point of time and he assured that within 8-15 days he would prepare the lease. Thereafter, the complainant gave a telephone call to him after 15 days and he called him in the office of Gram Panchayat. The complainant went to the
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office of Gram Panchayat Phophalia on 1.8.2015 and met with the appellant. He demanded Rs.2,000/- per lease and Rs.500-500/- for Yadav Saheb of Janpad Panchayat, Neemuch. The complainant came back to the village and talked to the other persons and told them that the appellant is demanding Rs.2,000/- per lease out of which Shaymlal and Bhawanishanker handed him Rs.500-500/- for Yadav Saheb. According to him, he never gave any bribe in his life and he would not give it to the appellant and decided to submit a complaint in the office of Lokayukta at Ujjain. On 3.8.2015 he gave an application in writing in the office of Lokayukta. The Dy. S.P. called Dinesh Rawat and directed him to verify the allegations made in the complaint. Dinesh Rawat gave him a voice recorder and a memory card and explained its operation and directed him to record the conversation about the demand of bribe. He sent Constable Sunil Parsai with him. They went to Village Chhachkhedi by bus and train and stayed in the night. On 4.8.2015 at 11.00, they walked down to Panchayat Bhawan and met the present appellant between 1.30 to 2.00. He switched on the voice recorder. The present appellant demanded rupees and he gave him Rs.1,500/- and then he asked to bring Rs.2,000/- and gave 2-3 days' time. Thereafter, he came out of the Panchayat Bhawan and handed over the voice-recorder to Sunil Parsai. Thereafter, they came back to Ujjain and met Inspector Rawat at 9 pm. in the night. According to him, he has forgotten to mention about payment of Rs.1,500/- to the appellant in the second complaint (Ex. P/3).
8. Dinesh Rawat told the complainant to arrange Rs.2000/- and come to the office on 6.8.2016 at near about 7.00 am. Thereafter, he arranged Rs.2,000/- and reached the office of Lokayukta at 7.00 am.
on 6.8.2015. Dinesh Rawat introduced him to two persons viz. Atmaram Meghvanshi and Dr. Bhupendra Patidar as 'Panch'
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CRA No.7524/2019witnesses. Both the applications dated 3.8.2015 and 4.8.2015 were read over in presence of witnesses and he admitted to be given by him. Thereafter, the transcript was prepared and was signed by the witnesses, which is Ex. P/5. Constable Neeraj Kumar applied the phynopthalene powder on the currency notes of Rs.2,000/- and prepared him and other witnesses for the trap. On 6.8.2015 near about 9.00 am., the team left the office of Lokayukta in two Government vehicles and reached the office of Gram Panchayat Phophlia at 1.00 pm. They stopped the vehicles half a kilometre away from the office of Gram Panchayat. Dinesh Rawat sent the complainant alone to the office Gram Panchayat and explained to him to give a signal after handing over the tainted money. The complainant went and stood in front of the gate of the office, the appellant came out from the room and he gave Rs.2,000/- to him which he kept the money in his pocket and went inside the chamber. Thereafter, the complainant gave a signal to the members of the trap team. Two members caught hold the hands of the present appellant - Giriraj and gave their introduction. His hands were washed in the solution of Sodium Carbonate which turned into pink colour. It was filled in the bottle. Another solution was prepared and his hands were washed which also turned into pink colour. Thereafter, Dr. Bhupendra Patidar and Atmaram Meghwanshi took out the currency notes from the pocket of the appellant and their hands were also washed and the colour of the solution turned into pink colour. He was arrested and released on the bail bond of Rs.25,000/-.
9. In please see para 20 of cross-examination, after hearing the conversation recorded in the CD (Article 'A') through Laptop the complainant has identified his voice but refused the identify the voice of the appellant. He was declared hostile and he was cross-
examined by the Public Prosecutor, in which he denied that he had
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CRA No.7524/2019identified the voice of the present appellant at the time of preparation of Ex. P/5 i.e. transcript, but admitted his signature. In cross- examination he has also admitted that he submitted an application on 3.7.2015 but on 24.6.2015 the Gram Panchayat had passed a resolution for allotment of land on lease to him vide Ex. D/1 and list (Ex. D/2). The two independent witnesses viz. Bhawanishankar and Shyamlal are his brothers. It is important to mention here that the complainant has admitted that in the transcript there is no demand of Rs.2,000/- by the present appellant. He has failed to give the name of his friend from whom he took Rs.2,000/-. In Para 27 he has stated that in the entire trap proceedings he has signed all the 'Panchnamas' at Ujjain in the night. He has also admitted that there is a dispute going on between the appellant and his friend - Kamalsingh and the present Surpanch. He also admitted that he followed the instructions of Lokayukta officers during the entire trap proceedings. Finally, in Para 28 of his deposition, he has admitted that before the demand by the appellant the lease was already sanctioned in his favour.
Therefore, in support of the demand, only P.W.1 - complainant has been examined and the transcript was produced. The transcript was prepared from the voice recorder given to the complainant. The conversation of the appellant and the complainant recorded in the voice recorder has not been proved before the trial Court. Only the transcript had been produced in which there is no specific demand of Rs.2,000/- from the complainant.
10. In the transcript in 'Mewadi' language the word "Do Do Jade Nipte Apano" was said to have told by the appellant to the complainant about the demand of Rs. 2000/ as illegal gratification. The Investigating Officer - Dinesh Rawat (P.W.10) in his deposition has also admitted in his cross-examination that it is correct that in the transcript 'Panchanama', the demand of Rs.2,000/- as a bribe is not
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CRA No.7524/2019confirmed. Only the word "fifteen hundred" is mentioned. He has also admitted that the scientific verification of the voice of the complainant as well as the present appellant (accused) was not done. He has also admitted that he did not verify as to whether any work of the complainant was pending with the present appellant or before submitting the complaint the lease has already been sanctioned.
11. At the time of handing over the bribe money on the date of the trap, no voice recorder was given to the complainant to record the conversation. According to the complainant, he went to the office of Panchayat and was standing in front of the gate and the Secretary came out and took money from him. No shadow witness was present there and there is no record to that effect.
12. It is not in dispute that before submitting a complaint on 3.8.2015 to the Superintendent of Police (Lokayukta), the Gram Panchayat had already recommended the name of 12 persons including the complainant for grant of lease of the Government Abadi land . The prosecution has also collected the Panchayat proceedings dated 24.6.2015 and list of the allottees and the letter of Surpanch and Secretary to the CEO, Janpad Panchayat, Neemuch for allotment of the lease. All these documents have been exhibited as Ex. D/1 to D/3 by the complainant at the instance of the appellant. The directions issued for allotment of plots under "Mukhyamantri Gramin Awas Yojna" are on record as Ex. P/10 in which complete procedure for allotment is provided. The beneficiary is required to submit an application to the Secretary of the Gram Panchayat and a three members committee comprising Panchayat Coordinate Officer, Patwari and Secretary of the Gram Panchayat to scrutinize and arrange the applications and prepare a list on the basis of the eligibility. Therefore, the Secretary alone was not the competent authority to recommend the name of beneficiary for allotment of land
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CRA No.7524/2019on lease. In the present case, the recommendation had already been made before demanding illegal gratification from the complainant. No work of the complainant was pending with the present appellant and he was not even the competent authority to grant the lease.
13. It is important to mention here that the complainant had knowledge that before submitting the complaint to the Superintendent of Police the lease had already been granted in his favour. Therefore, the demand for a bribe by the appellant has not been established by the prosecution. The Apex court in the case of Nishan Singh Vs State of Punjab [Criminal Appeal No . 1227 OF 2005 decided on 16.11.2010] has held as under
"The question that arises for our consideration is as to whether the appellant entered the details of the order granted by the Court on 2.7.1986 itself and if such an entry was made on 2.7.1986, was there any occasion by the appellant demanding the money from PW-5 on 18.7.1986.
The High Court while adverting to this aspect of the matter clearly recorded a finding that from the perusal of the Rapat Roznamcha "it does appear that entry with regard to stay was entered on 2.7.1986". The High Court having referred to that finding further proceeds to observe that the appellant making the entry on 2.7.1986 itself is of no consequence and he cannot be absolved with the charge framed against him.
The reasoning given by the High Court is that in spite of making entry about the stay order in the Roznamcha the appellant required the PW-5 complainant to come after a week on the pretext that he was busy and will make the entry only after 2-3 days. It is on 18.7.1986, according to the High Court when the PW-5 returned to the appellant a demand of bribe was made. It is difficult to believe that PW-5 was not aware of the fact that such an entry was made by the appellant on 2.7.1986 itself. In fact there is a positive finding by the High Court that the entry was made on 2.7.1986 itself. In such view of the matter it becomes difficult to accept the story set up by the prosecution that a bribe was demanded by the appellant on 18.7.1986 and PW-5 complainant agreed to give that bribe. Once it is accepted that entry was made on 2.7.1986 itself, the whole story of the prosecution becomes unbelievable and unacceptable.
For the aforesaid reasons, we are of the opinion that the High Court has committed a grave error in upholding the finding of the Trial Court."
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CRA No.7524/201914. In order to convict a public servant under section 7 and 20 of the Prevention of Corruption Act, mere recovery by itself cannot prove the charge against the accused. It has to be proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. In case of B. Jayaraj V/s. State of Andhra Pradesh : (2014) 13 SCC 55, the apex Court has held that insofar as offence under section 7 is concerned, it is settled position of law that the demand of illegal gratification is a sine a 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 doubts that the accused voluntarily accepted the money knowing it to be a bribe. This judgment has recently been followed by the Apex Court in the case of N. Vijayakumar V/s. State of Tamil Nadu (Cr. Appeal Nos. 100-101 of 2021 decided on 3.2.2021) also reported in [2021 SCC Online SC 53]. Para 12 of the said judgment is reproduced below :
"12. 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 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. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under :
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is
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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] .
8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned.
The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P11cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. Insofar 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 Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal 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." The above said view taken by this Court, fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a
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CRA No.7524/2019"possible view" as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record."
15. It is clear from the aforesaid verdict of the Supreme Court of India that the prosecution has to prove recovery of the tainted money from the possession of the accused to be illegal gratification. All the witnesses i.e. P.W.6 to P.W.12 have tried to prove the handing over of the money by the complainant, acceptance and possession by the present appellant. But as per aforesaid case law of the Hon'ble Apex Court, mere acceptance and possession cannot establish the offence u/s. 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. In respect of demand, only the witness (P.W.1) has been examined. So far as P.W.5 and P.W.6 are concerned, they have stated that they never met the present appellant directly. The appellant was negotiating and talking with the complainant on their behalf for granting the lease. They gave money to the complainant, but they are not aware whether the complainant has handed over the money to the appellant or not. According to them, they gave only Rs.500/- to the complainant for sanctioning the loan through "Yadav Saheb". They gave money to the complainant for giving the same to Yadav Saheb for the purposes of loan and not for the present appellant. Therefore, P.W. 5 & P.W.6 though they are relative of the complainant, are not supporting the case.
16. There is no recorded voice conversation in respect of initial demand by the appellant i.e. before making the complaint and there is no recorded voice conversation at the time of handing over
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CRA No.7524/2019the bribe money. There is only one conversation in which P.W.1 and Investigating Officer (P.W.10) have stated that there is no whisper of demand of Rs.2,000/-. Only the words "Do Do Jade Nipte Apano"
have been said, which means "De Do" but not "Rs.2,000/-".
Therefore, there cannot be a presumption that this conversation was in respect of demand of Rs.2,000/- as a bribe. Hence, the benefit of the doubt goes in favour of the present appellant. Once the demand is not established and on the basis of mere possession of tainted money, the appellant cannot be convicted. The complainant (P.W.1) in his cross-examination has admitted that the present Surpanch is his friend and there is an enmity between the appellant and the Surpanch. Therefore the possibility of the false implication of the appellant cannot be ruled out because of the said enmity. Therefore, in the considered opinion of this Court, the conviction and sentence awarded to the appellant by the learned Addl. Sessions Judge deserve to be set aside.
17. Accordingly, this appeal is allowed and the judgment dated 29.08.2019 passed by Special Judge, Prevention of Corruption Act , Neemuch in Special Case No.300002/2016 convicting the appellant for the offence punishable under Section 13(1) (d) read with Section 13(2) of I.P.C. Act and sentencing to 4 years R.I. with fine of Rs. 4,000/- with default in stipulations hereby quashed. The bail bonds stand discharged.
( VIVEK RUSIA ) JUDGE.
Praveen/Alok Digitally signed by ALOK GARGAV Date: 2021.04.07 15:13:49 +05'30'