Bhagwandas vs State of M.P.

S.S. Dwivedi, J.

The appellant has preferred this appeal feeling aggrieved by the impugned judgment of nviction and sentence dated 03.10.2000 rendered by the First Additional & Special Judge, Gwalior in Special Case No. 1/1949, whereby, the appellant/accused has been found guilty u/s 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter shall be referred to as "PC Act") and sentenced to one year rigorous imprisonment with fine of Rs. 500/- on each count and in default of payment of fine, further ordered to suffer imprisonment for one month.

Briefly stated, the facts of the case are that appellant/accused admittedly at the relevant time posted as Village Patwari of Circle No. 65 in Tehsil Gwalior. The complainant Kedar Singh (PW-7) contacted the appellant/ accused Bhagwandas, Village Patwari, for issuance of certified copy of the khata record to apply some loan in the bank, for which, it is alleged that the appellant/accused had demanded the illegal gratification of Rs. 200/- from the complainant Kedar Singh. Thereafter the complainant Kedar Singh had contacted to Special Police Establishment Lokayukt Gwalior and lodged FIR (Ex. P/1) for the alleged illegal demand made by the appellant/accused as a public servant. On this report, the Investigating Officer D.S. Rana (PW-9) has prepared the requisite panchnama and spread the phenolphthalein powder on the four currency notes of Rs. 507- each total Rs. 2007- and thereafter the currency notes were handed over to the complainant Kedar Singh for its delivery to the appellant/accused as per his illegal demand. On 10.01.1992 the concerning trap has been arranged. The complainant Kedar Singh reached near Baradari Square Morar at a Barber''s shop, where the appellant/accused came for acceptance of the aforesaid bribe of Rs. 200/-. The complainant Kedar Singh handed-over the aforesaid currency notes amounting to Rs. 200/- to the appellant/accused and make sign to the trap party, who were there for the trap purposes. Thereafter, two constables immediately came and caught hold the hands of the appellant/accused and Investigating Officer had seized the currency notes of Rs. 200/- from the possession of the appellant/ accused. The hands of the appellant were washed by the mixture of sodium carbonate powder by which the colour of water turned into pink and then pink colored water was preserved in the clean bottle for its examination by the Forensic Science Laboratory, Sagar, from where report (Ex. P/20) was received. Appellant accused was arrested. The concerning Investigating Officer returned back to the office, registered a case u/s 7 and 13 (1) (d) r/w Section 13 (2) of PC Act. After obtaining necessary sanction for the prosecution of the appellant/accused from the appointing authority filed the charge-sheet against the appellant/accused before the Special Judge, Gwalior.

The appellant/accused abjured the guilty and his defense is of false implication in the case. The learned trial Court after appreciation of entire prosecution evidence on record by impugned judgment held the appellant/ accused guilty for the offence punishable u/s 7 and 13 (1) (d) read with Section 13 (2) of the PC Act and sentenced him as stated hereinabove. Feeling aggrieved by which, the appellant/accused has preferred this appeal.

Heard the learned counsel for the appellant as well as the learned Public Prosecutor for the State and perused the record.

It is submitted by the learned counsel for the appellant that the complainant Kedar Singh (PW-7) himself not supported the prosecution story with regard to demand of bribe by the appellant/accused and thereafter its acceptance by the appellant/accused. In view of that statement, the complainant Kedar Singh had been declared hostile by the prosecution, who had not supported the prosecution story. It is further submitted that the prosecution had also not proved any motive of the appellant/accused for illegal demand of bribe from the complainant as the work of supply of the certified copy of the Khasra/Khata is managed by the Tehsildar himself and unless Tehsildar ordered for the supply of the certified copy of the concerning Khasra record, the appellant/accused is not having any right to deliver the certified copy to the applicant and when the appellant/accused is not having any right for supply of the certified copy, then certainly the motive for demand of illegal gratification from the complainant does not arise and this material fact has also been ignored by the trial Court. It is further submitted that the shadow witness Gyan Singh as mentioned in the FIR by the complaint, has not been examined by the prosecution. Third independent witness i.e., the barber, in whose shop the concerning trap has been conducted, has also not been examined and if these two material witnesses have not been examined, then certainly adverse inference ought to have been drawn against the prosecution. Had these two witnesses examined, they would definitely not have supported the prosecution story. It is also submitted that seizure of bribe money is also not proved from the possession of the appellant/accused. As per the seizure memo, the concerning currency notes were seized laying on the ground and not from the conspicuous possession of the appellant/ accused and in view of the same, the acceptance of the bribed money by the appellant/accused is also not proved beyond reasonable doubt and if that be so, the prosecution has utterly failed to prove the alleged charge for demand of bribe by the appellant/accused and its acceptance and the learned trial Court has wrongly held the appellant/accused guilty of the aforesaid offence. Hence, prayed for setting aside the impugned judgment of conviction and sentence passed by the trial court and prayed for acquittal of the appellant accused.

Per contra, the learned Public Prosecutor for the State supported the impugned judgment and submitted that though the complainant Kedar Singh (PW-7) turned hostile and not supported the prosecution story, but on the basis of the his written complaint with regard to demand of bribe by the appellant/accused, seizure of the currency notes from the possession of the appellant/accused was made, which has been proved by D.S. Rana (PW-9). The demand of bribe and its acceptance clearly prove the guilt of the appellant/accused and the trial court has rightly held him guilty of the aforesaid offence and no substantial grounds are available for any interference in the impugned judgment of conviction and sentence passed by the trial court. Hence, prayed for dismissal of the appeal.

To bring home the charges as leveled against the appellant/accused it is apparent that the complainant Kedar Singh (PW-7) examined by the prosecution, has not supported the prosecution story. He stated that he had contacted the appellant/accused for the supply of certified copy of the Khasra Khata and the appellant/accused told him that first of all submit the application for obtaining the certified copy of the Khasra in the Tehsil office and after the necessary permission granted by the Tehsildar, he can supply the aforesaid copy to him and at this juncture, sme hot-talk took place between the complainant and appellant/accused but the appellant/accused has not demanded any Rs. 200/- as bribe for supply of the certified copy of the village Khasra. He also denied that he had made some written complaint against the appellant/accused with regard to aforesaid illegal demand of Rs. 200/- at the office of Special Police Establishment, Lokayukt. In view of the aforesaid statement given by the complainant Kedar Singh (PW-7), he had been declared hostile by the prosecution and in cross-examination also, he had not stated anything about necessary preparation of trap, spreading of phenolphthalein powder on the currency notes and delivery of money to the appellant/accused at some Barber''s shop. Thus, he had not supported the single fact as alleged by the prosecution. In cross-examination, he had admitted the fact that concerning Tehsildar has obtained certain signature from him on various papers but he could not identify as to what were the papers. Thus, it is pertinent to note that complainant Kedar Singh (PW-7) had not stated about the fact of demand of bribe by the appellant/accused and thereafter its acceptance by the appellant/accused.

On perusal of the written compliant (Ex. P/1), it is seen that it nowhere reflects that before any person, the shadow witness, the appellant/accused has demanded any bribe money of Rs. 2007- from the complainant and it is settled principle under law that in bribe cases there must be independent corroboration about the statement of the complainant with regard to demand of bribe money by the accused. For this, the reliance can be placed on the decision of the Apex Court reported in the case of Panalal Damodar Rathi Vs. State of Maharashtra, , wherein, their Lordships were pleased to hold "in the circumstances where the corroboration of the complainant''s statement is not available with regard to the demand of bribe by the appellant/accused, then the sole statement of complainant cannot be relied upon". Similar is the view taken by this Court in the case of Jagdish Chandra Makhija Vs. State of Madhya Pradesh, , wherein it is held "if the statement of the complainant with regard to the demand of the bribe has not been corroborated by the independent witness then the same statement of the complainant without corroboration cannot be accepted".

Similarly on perusal of the seizure memo (Ex. P/5), which has been proved by the prosecution witness P.R. Kaixoliya (PW-4), wherein, it is clearly mentioned that currency notes of Rs. 200/- has been seized laying on the ground and not from the pocket of the appellant/accused. The witness Shiv Shankar Tiwari (PW-1), Police Constable, who had caught immediately the appellant/accused in the Barber''s shop, also stated that currency notes of Rs. 200/- had been seized from the ground and not from any pocket of the appellant/accused. The second witness D.S. Rana (PW-9), Investigating Officer, has also admitted the fact that at the time of seizure, the appellant/ accused had clearly stated that complainant Kedar Singh (PW-7) was forcibly trying to give him the currency notes, which he had not received. The currency notes were seized from the ground and not from the possession or pocket of the appellant/accused. In view of the aforesaid statement of the Seizing Officer D.S. Rana (PW-9) and witness Shiv Shankar Tiwari (PW-1), it is apparent that if the seizure is not effected from the conspicuous possession of the appellant then certainly the seizure cannot be held from the possession of the appellant accused and no presumption u/s 20 of the PC Act can be raised against the appellant/accused on the basis of aforesaid seizure.

With regard to seizure of bribe money not from the possession of the appellant/accused, in such circumstances also, the appellant/accused cannot be held guilty for the aforesaid offence and for this, the reliance can be placed on the decision of the Apex Court reported in Smt. Meena Hemke Vs. The State of Maharashtra, , wherein, it has been held "If the bribe money has not been recovered from the possession of the appellant/accused, this has been recovered from the room concerned. In such case, the appellant/accused cannot be held guilty for acceptance of the bribe money from the complainant".

Other witness examined by the prosecution are D.S. Rana (PW-9), the Investigating Officer, who had proved preparation of trap and seizure memo (Ex. P/5) as discussed hereinabove. Ravindra Singh (PW-2) had proved the preparation of trap for spreading the phenolphthalein powder on the four currency notes of Rs. 50/- each, which had been handed over to complainant Kedar Singh for its delivery to appellant/accused. Bhagwan Singh (PW-3) proved that complaint (Ex. P/1) had been written by him on the instructions of complainant Kedar Singh. P.R. Katroliya (PW-4) had proved the fact that for the supply of certified copy of the Khasra, the concerning applicant ought to apply before the Tehsildar. He had also proved the seizure of currency notes by the Investigating Officer vide seizure memo (Ex. P/5). B.R. Kaneria, (PW-5) had proved the preparation of panchnama (Ex. P/2). R.K. Gupta (PW-6) had proved the prosecution sanction by the law department which is Ex. P/13. Ashok Kumar Shrivastava (PW-8) had proved the appointment letter (Ex. P/15) for the appointment of appellant as Patwari.

Thus, on overall re-appreciation of the entire prosecution evidence on record, in my considered opinion, the prosecution had failed to prove the. demand of bribe by the appellant/accused by independent and cogent evidence.

Similarly, prosecution has also failed to prove the acceptance of bribe money by the appellant/accused and also not proved the seizure of bribe money from the conspicuous possession of the appellant/accused. The prosecution has also not proved the motive for demand of bribe money by the appellant and in view of that, the learned trial Court has wrongly held the appellant/accused guilty for the offence punishable u/s 7 and 13 (1) (d) read with Section 13 (2) of the PC Act, therefore, the impugned judgment of conviction and sentence is liable to be set aside.

Resultantly, the appeal preferred by the appellant succeeds and is hereby allowed. The impugned judgment of conviction and sentence passed by the trial Court is set aside. Appellant is acquitted from the charge u/s 7 and 13 (1) (d) read with Section 13 (2) of the PC Act. Fine amount, if any, deposited by the appellant be refunded back to him. The appellant is on bail. His bail bond stands discharged forthwith.