Ashok Vasuniya vs State Of Madhya Pradesh

This order seeks to dispose of application filed under Section 389 (1) of the Code of Criminal Procedure, 1973 for suspension of conviction of appellant who has been convicted vide order dated 15.03.2019 by Special Judge, Mandleshwar in Special Session Trial No.118/2016. The appellant has been convicted under Section 7 of Prevention of Corruption Act, 1988 (for short 'PC Act') read with Section 120-B of IPC and under Section 13(1)(d) and 13(1)(2) of PC Act read with Section 120-B of IPC and has been sentenced to four years RI and fine of Rs.40,000/- for each offence and to suffer default imprisonment on non-payment of fine.

The prosecution story in short was that complainant was seeking issuance of No Objection Certificate (NOC) by the Town and Country Planning Department, District-Khargone, for diversion purposes and for issuance of such NOC, the accused and the co-accused demanded illegal gratification. A complainant was subsequently lodged by the complainant and a trap was laid on 23.04.2015 and a sum of Rs.15,000/- was recovered from co-accused-Harisingh Solanki. Subsequent investigation followed and charge-sheet was filed against the present appellant and the co-accused. Appellant was charged for conspiring with co-accused for demanding and accepting bribe from complainant. After conclusion of trial, the appellant has been convicted and sentenced, as described earlier. After conviction, although substantive jail sentence of the appellant has been suspended, he has since been dismissed from the service and therefore the appellant was constrained to file the application for suspension of his conviction.

The appellant submits that if in the final outcome of appeal it is held that the appellant was not guilty of offence, then an irreparable loss would be caused on the ground of his dismissal from service as his entire retiral benefits could not be released. If the present application is allowed then it would pave way for his reinstatement as a public servant. The allowance of present application would send out a strong message countering untrue and malicious accusations against public servants who have been sincere and fearless in delivering the services to the State and public at large. It has been stated that learned Special Court has wrongly relied upon the insufficient and improbable evidence of the prosecution and hence gravely erred in convicting the appellant for the above mentioned offences. The prosecution has not been able to conclusively prove the demand and illegal gratification by the appellant and also the bribe amount showing recovery from the appellant. Learned trial Court has failed to see that NOC had been issued one day prior to the alleged acceptance of the bribe and there appears to be no logical reason of accepting the bribe at the later stage.

As per the appellant, the learned trial Court did not give weightage to the fact that the complaint had turned hostile and have disowned the content of his own complainant and prima-facie there appear to be major contradictions, inconsistencies, inadequacies or loopholes in the story led by prosecution. The appellant further submits that the judgment is of the year 2019 and it will take huge time to decide the matter finally and that the appellant has a very strong case in his favour for obtaining the order of acquittal from this appellate Court. Thus, it is, prayed that the order of conviction passed by the learned Special Magistrate, PC Act dated 15.03.2019 be stayed till final disposal of this pending appeal in the interest of justice and fitness of things.

Learned counsel for the appellant submits that prosecution could not prove that the appellant had demanded any amount from the complainant, that no recovery was made from the appellant and that the NOC was granted earlier before the trap proceedings and this shows that there was actually no motive for demand of money by appellant from the complainant. Learned counsel for the appellant has supported his arguments with number of citations i.e. Rama Narang vs. Ramesh Narang, reported in (1995) 2 SCC 513, Navjot Sidhu vs. State of Punjab (2007) 2 SCC 574, Anil Chaudhary vs. State of Maharashtra, 2011 SCC Online Bombay 1498, K. Subramanian vs. Inspector of Police, Chennai, 2011 SCC Online Madras 913, Pravin Kumar Gukhroo vs. State of Gujarat, 2009 SCC Online Gujrat 6136, K. Bhagyanath vs. State 2002 SCC Online Delhi 1149, Masi vs. State, 2010 SCC Online Madras 4971, S. Manik Reddy vs. State of Maharashtra, 2008 SCC Online Bombay 1377 and Gian Singh vs. State of Haryana, 2008 SCC Online P&H 421 to bolster his submissions.

The appellant in his written submission has made the same submissions which have been made in his application. Additionally, it has been mentioned that the appellant has been roped in a criminal case because he was a designated authority in issuing the NOC in the Town and Country Planning Department. It has been mentioned that the trial Court has not relied upon the conversation recorded in the mobile phone, that the complainant himself having turned hostile, that there are major contradictions between his Court statements and his averments made in the complaint. There are number of major contradictions in the statements of Kamal Goyal (PW/5) whose wife had been allotted petrol pump and he is also a hostile witness who makes contradictory statements in his evidence vis-a-vis police statements. The appellant-Ashok Vasuniya has been roped in on the basis of principle of vicarious liability, whereas it is settled that in criminal cases not vicarious liability, but strict liability is required to be proved to bring about conviction and that in a criminal case unless there is direct evidence supported by cogent evidence, the conviction order cannot be passed.

In the written submission, it has also been stated that conspiracy theory also has failed because the concerned witnesses have turned hostile. It has also been stated that provisions of Section 20 of PC Act, 1988, as per which presumption is drawn against the accused is not applicable in this case because there is no proof of demand and there is no proof of acceptance and unless there is prove of demand, the proof of acceptance did not follow. In the written submission, learned counsel has also discussed the citations referred to by the learned counsel for the respondent/Lokayukta and has submitted that these Apex Court citations are not attracted in the present case.

In the citations preferred by learned counsel for the appellant, it has been laid down that the order of conviction if results in some disqualification then the narrow meaning should not be given to Section 389(1) of the Code to bar the Court granting the order/staying the operation of order of conviction in a fit case. Thus, when an appeal is preferred under Section 374 of the Code, the appeal as against both the conviction and sentence and therefore there is no reason to place a narrow interpretation of Section 389(1) of the Code and not to extend the order of conviction. Although, the same exercise i.e. staying the order of conviction can be passed in exceptional case.

The aforesaid application has been countered by learned counsel on behalf of the respondent/Lokayukt who has submitted that the appellant had hatched a criminal conspiracy with co-accused-Harisingh Solanki who on behalf of appellant as junior was involved in negotiation with the complainant and the office room of co-accused was adjacent to that of present appellant and that there is enough evidence to prove the conspiracy theory. It has further been stated that even though the complainant had turned hostile, the prosecution was rightly found proved by the Presiding Officer whose conclusions are in accordance with the Hon'ble Apex Court judgments provides for conviction even in the face of complainant turning hostile.

Learned counsel for the respondent/Lokayukta has also put-forth number of citations in order to advance his submissions. These citations are State of Maharashtra through CBI vs Balkrishna Dattatraya Kumbhar (2012) SCC 384, Jamuna vs State of Madhya Pradesh 2003 (1) MPLJ 96, Neeraj Dutta vs State (Delhi Administration) 2019 SCC Online Page 296, State of Punjab vs Deepak Mattu AIR 2007 11 SCC-319, Vijay Rege vs. State of Madhya Pradesh 2015 SCC Online MP 4512. The main plank of submission of learned counsel for the respondent/Lokayukta is that the appellant should not be given the benefit of suspension of conviction just because of possible delay in dismissal of this appeal and further just because any public servant would be loosing his job and would be loosing certain amount of money in case of loosing his job. In the case of Deepak Mattu (Supra), the Hon'ble Supreme Court has drawn extensively from yet another case in K.C. Sareen vs CBI reported in 2001 6 SCC 584. Paragraph 12 of the aforesaid judgment is as under:

Para:12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.

Learned counsel for the appellant after considering the citations put-forth by learned counsel for the respondent/Lokayukta submits that although the suspension of conviction can be granted only in exceptional circumstances but it is not the principle laid down by any of the Hon'ble Apex Court judgments that suspension of conviction cannot be granted at all. Regarding the case of Neeraj Dutta (supra) cited by respondents, it has been mentioned that this case does not overrule the earlier citations of Satyanarayanamurthy (Supra) and other citations such as B. Jayraj vs State of Andhra Pradesh reported in 2014 13 SCC 55 and on the basis of outcome of the case of Neeraj Dutta (Supra), the matter has been referred to a Larger Bench.

The question before this Court is whether in view of the grounds contained in the application, the appellant's application for suspension of conviction deserves to be allowed ?

After considering the citations putforth by both the learned counsel, it becomes clear that the suspension of conviction of a public servant can be granted only in extremely exceptional circumstances and that the demand and acceptance of money is sine-qua-non for conviction of a public servant. In the present case, the aspect of conspiracy is involved and it is not the prosecution case at all that the appellant had received the money but the case of the prosecution was that the appellant was also involved in the demand of bribe amount and the money was taken by the co-accused at the behest of appellant and therefore there was a criminal conspiracy on the part of the appellant.

Now we shall consider as to whether it can be stated that there are such exceptional circumstances present in the case which call for allowing the application for suspension of conviction of appellant.

In the case of Neeraj Dutta (Supra), the Hon'ble Apex Court was faced with a dilemma when the case of P. Satyanarayanamurthy vs State of Andhra Pradesh 2015 10 SCC 12 was put up before the Court. In this case (Satyanarayanamuthy's case) the complainant had died before the trial and thus he could not be examined by the prosecution. On this basis, the trial Court had exonerated the accused, thus, the Supreme Court had observed that since the complainant had died and in such case because of his death, no evidence could be led on the part of demand of bribe and if the accused were to be convicted, it would be an inferential deduction which is impermissible in law and therefore the Apex Court has affirmed the finding of acquittal.

While considering this citation, the Hon'ble Apex Court in Neeraj Dutta's case (Supra) referred to other judgments of Apex Court which are Kishanchand Mangilal vs State of Rajasthan 1982 3SCC 466, Hazarilal vs State 1980 2 SCC 390 and N. Narsinga Rao vs. State of Andhra Pradesh (2001) 1 SCC 691, in these cases despite the fact that the complainant had either died or turned hostile, the conviction was affirmed on the ground of reliability of punch witnesses and the logic was derived from the preventive clause under Section 114 of Evidence Act, 1872. The Court in Neeraj Dutta's case (Supra) thereafter looking to the breach of contradictions or conclusions drawn in the case of Satyanarayana (Supra) on the one hand and other cases referred to above referred the question to a larger bench in following terms:

Para 14:

"The question whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is not permissible to draw inferential deduction of culpability of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 issued on other evidence adduced by the prosecution" ?

In the case of Balkrishna Dattatraya Kumbhar (Supra), the Hon'ble Apex Court had held that conviction of public servant convicted in corruption cases cannot be suspended just because they would otherwise loose their job and they have to be treated as corrupt till they are exonerated by superior Courts. The suspension of conviction of such persons and then permitting them to perform their official duties would have a tremendous adverse effect on public interest.

As far as present appellant-Ashok Vasuniya is concerned, the prosecution was required to prove as to whether he was involved in the conspiracy along with co-accused-Bharat Singh Solanki in demand and acceptance of bribe. It is an admitted fact that prior to considering the application for diversion of land by SDM, NOC was to be obtained from the Town and Country Planning Department. It is also an admitted fact that appellant-Ashok Vasuniya was signatory to the NOC. It is also cleared that NOC was granted on 22.04.2015. A perusal of note-sheet Article 'A-9' shows that first note-sheet was drawn up on 07.01.2015 and after that the next note-sheet was written only on 22.04.2015, thus, the last note-sheet was written on 22.04.2015. The complainant-Afghan who wanted diversion of his land has stated that he had met appellant-Ashok Vasuniya on 22.04.2015 and his such submissions are not being contradicted in cross-examination. The prosecution story is that complainant had phoned Ashok Vasuniya and was recording the conversation in his mobile phone. After recording the conversation, he had handed over the mobile phone to the prosecution agency. The prosecution during investigation had sought the voice sample of appellant-Ashok Vasuniya. However, the witness-Yuvraj Singh Chouhan (PW/17) states that appellant refused to give the voice sample. Although the voice recorded in the mobile phone of appellant-Ashok Vasuniya was not found to be an admissible evidence but the fact cannot lost sight of that the appellant had refused to give his voice sample. Such refusal would result in drawing of an adverse inference/presumption against him that if he would have given voice sample, the same would have been found to be matching with voice recorded in the mobile phone.

As per Ex.P/9 which is the map, the room of appellant-Ashok Vasuniya is adjacent to the room of Harisingh Solanki. Thus, there was a close proximity between these two persons physically as well. The complainant has stated that he had been trying to obtain NOC since long time but he could not obtain the same. It seems strange that on the day, the appellant and complainant had a meeting on 22.04.2015, the note-sheet was drawn up on the same day the NOC was granted. There is no explanation given by the appellant as to why the note-sheet which was earlier written on 15.01.2015 was not proceeded with till 22.04.2015 when the complainant himself met appellant-Ashok Vasuniya. It was found proved that on the next day i.e. on 23.04.2015, the co-accused-Harisingh Solanki was caught red handed and the file was recovered from him. This proximity of dates shows conspiracy between the two persons. Further, appellant-Ashok Vasuniya submits that NOC had already been given on 22.04.2015 and the letter was dispatched to SDM regarding grant of such NOC. However, there is no seal on Ex.P/4 which carries the impression of the office of SDM. Thus, there is no proof that the letter had infact been dispatched to SDM on 22.04.2015. It appears that only after the bribe changed hands, the letter would have been sent.

All these facts prima-facie show complicity of appellant-Ashok Vasuniya in the demand and acceptance of bribe by co-accused. Hence, no exceptional circumstances are there in favour of appellant for giving him the benefit of suspension of conviction. The application-IA No.7792/2019 stands rejected. List the appeal for final hearing in due course.