Brahmadatt Pathak vs State of Madhya Pradesh

Pritinker Diwaker, J.—The appellant has preferred this appeal against the judgment and order dated 17-8-1998 passed by Special Judge, Bastar (Jagdalpur) in Special Case No. 02/1995 convicting the accused/appellant under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act (for short the "Act") and sentencing him to undergo rigorous imprisonment for one year with fine of Rs. 500 u/s. 7 and rigorous imprisonment for two years with fine of Rs. 500 u/s. 13(1)(d) read with 13(2) of the Act, plus default stipulations. Facts of the case in brief are that at the relevant time the accused/appellant was working as Depot Manager, M.P.S.R.T.C. (for short the "Corporation"), Jagdalpur and the complainant namely Dilip Kumar Chitrasen was working as Driver in the said Corporation. On 3-3-1994 a written complaint Ex. P-1 was made by the complainant to the Vigilance Officer, Raipur alleging that the accused/appellant was demanding Rs. 5000 from him saying that it is he who got him appointed. When the complainant refused to give the said amount on account of his poor financial condition, the accused/appellant asked him to submit the medical certificate and affidavit failing which he would not be permitted to drive the vehicle in the line. Both the certificates were obtained by the complainant and submitted to the office of the accused/appellant but even then he was not assigned his work and the accused/appellant had threatened him saying that it is he who appointed him and that way he could remove him too if an amount of Rs. 5000 was not given to him. On 1-3-1994, when the complainant again met the accused/appellant and informed that he could not arrange the amount of Rs. 5000, the appellant asked him to arrange at least Rs. 2,500 by 3-3-1994 itself and rest of the amount could be paid later. Accused/appellant asked him to be present in the office on 3-3-1994 with the said amount. It is alleged that as the complainant did not want to give the said bribe amount to the accused/appellant and wanted an action against him, the complaint was made by him. After getting the aforesaid report, preliminary Panchnama was prepared on 3-3-1994 itself in presence of independent witnesses namely B.K. Sirothia (PW-2) and B.S. Baishya (PW-1). Trap party headed by Anand Diwan was constituted, test was demonstrated by applying phenolphthalein powder on the 22 currency notes of 100 denomination and 6 of 50 denomination, said currency notes were given to the complainant and after instructions being given to him, the trap party went to the house of the accused/appellant. Bribe amount was given to the accused/appellant by the complainant and after receiving signal from him it raided the spot and recovered the money from the seat of the scooter of the accused/appellant. The said amount was collected by B.S. Baishya (PW-1), and thereafter trap panchnama Ex. P-5 was prepared, phenolphthalein test was conducted which proved positive. FIR Ex. P-22 was registered and after obtaining sanction Ex. P-19 challan was filed on 20-9-1995 u/s 7 and 13(1)(d) read with 13(2) of the Act.

In support of its case, prosecution has examined as many as 13 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the allegations made against him and pleaded his innocence and false implication in the case. Defence of the accused/appellant is that on the date of incident the complainant had made an attempt to give Rs. 2,500 to him which was refused by him but then the complainant tried to thrust the same in the left pocket of his shirt but he caught hold of his hand which led to scuffle coupled with exertion of force on account of which powder applied on the currency notes could have fallen on his shirt. He has also stated in his defence that scuffle coupled with exertion of force continued for quite some time and when the complainant ultimately failed to put the said amount in the pocket of his shirt, he put the same on his scooter parked nearby. According to him, he never demanded the money from the complainant nor did he ask Bhagirathi Dewangan (PW-5) to collect the same from the complainant. He has stated that if any such demand was made by Bhagirathi Dewangan (PW-5), it was bad. He has further stated that appointment order was already issued to the complainant five months prior to the date of incident and since then he was regularly performing hits duties and that he was never threatened by him for his removal from the job.

After hearing the parties, the Court below convicted and sentenced the accused/appellant as mentioned in paragraph No. 1 of this judgment.

Heard counsel for the parties and perused the material available on record.

Counsel for the accused/appellant submits that no demand of bribe was ever made by the accused/appellant as is alleged by the prosecution. He submits that the prosecution has utterly failed to prove the demand and acceptance of bribe amount by the accused/appellant because the complainant himself has deposed in his court statement that when he tried to give money to the accused/appellant, he refused to accept the same. He further submits that once the appointment order was already issued in favour of the complainant, question of his making any demand does not arise. He submits that tainted money was recovered from the seat of the scooter of the appellant and as per the statement of the complainant and that of Bhagirathi Dewangan (PW-5) no amount whatsoever was accepted by the accused/appellant. According to him, the prosecution has failed to prove the demand of illegal gratification which is a sine qua non for convicting the accused under this special provision and that in the absence of any proof for the same presumption cannot be drawn against the accused/appellant. He further submits that even if presumption is drawn as per Section 20 of the Act, defence has established its case beyond preponderance of probability that the appellant has not accepted any illegal gratification from the complainant. Counsel for the accused/appellant further submits that the complainant has not supported the case of the prosecution and at the later stage he has been declared hostile. He submits that even the FSL report has not been proved by the prosecution. In support of his submissions he placed reliance on the decisions of the Supreme Court in the matter of Banarsi Dass Vs. State of Haryana, in the matter of Subash Parbat Sonvane Vs. State of Gujarat, , in the matter of Panalal Damodar Rathi Vs. State of Maharashtra, , in the matter of A. Subair Vs. State of Kerala, , in the matter of State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, and in the matter of Gagan Kanojia and Another Vs. State of Punjab,

On the other hand counsel for the respondent/State supports the judgment impugned and submits that as the amount has been recovered from the seat of the scooter belonging to the accused/appellant, findings of the Court below convicting and sentencing him under this special provision are just and proper and need no interference in this appeal.

B.S. Baisya (PW-1)-Tehsildar at the relevant time is the witness to the trap proceedings who has stated in his evidence that on the date of incident he was posted at Jagdalpur and that he knew the appellant who was working as Depot Manager, Jagdalpur. According to him, on the date of incident at about 9 a.m. he went to the office of the police department where he met Dy. S. P. Mishra, and the complainant whom he did not know by name was also there. He is also stated to have met one Gazetted Officer whom also he did not know by name. He has stated that the complaint Ex. P-1 given by Dy. S.P. was read over by him, complainant had given him Rs. 2,500, numbers of the same were noted down and phenolphthalein powder was coated thereon. Then after putting an amount of Rs. 2,500 in the pocket of the shirt of the complainant he was instructed that while giving the said amount to the accused/appellant he was to give the signal to the trap party. Thereafter, first the complainant was sent to the house of the accused/appellant followed by himself, one Executive Engineer and Dy. S.P. Bisen. Preliminary panchnama Ex. P-2 was prepared. Then after giving money to the accused/appellant, complainant gave a signal on which the trap party entered his house where Dy. S.P. had caught hold of the hand of the accused/appellant. Thereafter, hands of the accused/appellant were washed and the money was recovered from the scooter vide Ex. P-3 and Panchnama Ex. P-5 was prepared. According to this witness, when the trap party reached the house of the accused/appellant, he was standing at the main gate of his house along with one Dewangan and his scooter was parked about 5-7 ft. away from the main gate of his house. B.K., Sovetia (PW-2)-Executive Engineer in the Irrigation Department is the witness to the trap who has stated almost the same thing as has been stated by B.S. Baisya (PW-1). Shyamlal (PW-3) who at the relevant time was working as Upper Division Clerk in M.P.S.R.T. from whom attendance register was seized vide Ex. P-7. He has stated that at page Nos. 56, 60, 64, 68, 72 and 76 attendance of the complainant was recorded. J.N. Datt (PW-4) who at the relevant time was working as Head Clerk in M.P.S.R.T.C. is the witness from whom personal file of the accused/appellant and the complainant was seized vide Ex. P-9 and P-10. Bhagirathi Dewangan (PW-5) who at the relevant time was working as Traffic Inspector has stated in his evidence that attendance register Ex. P-6 and duty chart Ex. P-15 were seized from him. He has stated that on the date of incident when the complainant came to the house of the accused/appellant, he was also sitting there as he had come to discuss some official matter with him. According to this witness, when the complainant called the accused/appellant, he and the accused/appellant came to the verandah where the complainant came and touched the feet of the accused/appellant and requested him to permit him for driving the vehicle and that he wanted to please him. Saying so, according to this witness, the complainant tried to thrust the money in the pocket of the accused/appellant but he refused to accept the same saying that he was not in need of money and also told him not to indulge in such unwanted activities. Resistance offered by the accused/appellant to the act of the complainant led to scuffle coupled with exertion of force and ultimately when the accused/appellant did not accept the money from the complainant, he went and put the same on his scooter parked nearby and when the accused/appellant told him not to do that and take the same with him, the members of the trap party came there and caught hold of the hands of the accused/appellant and seizure of money was made. Complainant namely Dilip Kumar Chitrasen (PW-6) has stated in his evidence that on the date of incident he was working as driver in the M.P.S.R.T.C. whereas the accused/appellant was working as Depot Manager and Bhagirathi Dewangan (PW-5) was working as Control Room Incharge. According to him, Bhagirathi Dewangan (PW-5) had demanded Rs. 5000 from him saying that it was to be given to the accused/appellant as it was he who got him (complainant) appointed. According to him, as due to his poor financial condition he was not having money, a complaint Ex. P-1 was made by him and given to the police. He also gave Rs. 2,500 to the police which after applying some powder was kept in the pocket of his pant with an instruction to give signal while handing over the same to the accused/appellant. Thereafter, he along with the trap party went to the office of the accused/appellant but as he was not available in the office, they went to his house. First of all, he alone had gone to the house of the accused/appellant and as the door was closed he raised his voice on which one Bhagirathi Dewangan (PW-5) came out and told that the accused/appellant was inside the house. According to him, after the accused/appellant came out, he tried to give money to him but he refused to accept the same. Thereafter, he kept the said amount on the scooter of the accused/appellant and gave signal to the trap party. After receiving the signal, the trap party entered the house of the accused/appellant and caught hold of him. At this stage, this witness has turned hostile. In cross examination done by the public prosecutor, this witness has stated that the amount was not accepted by the accused/appellant. Kishore Chandra Joshi (PW-7) is the witness who prepared spot map Ex. P-17. Pravin Shrivastava (PW-8) is the witness to sanction to prosecute the accused/appellant. Satish Kumar Dubey (PW-9) is the member of the trap party has supported the case of the prosecution stating that complainant came to the office, made a written report and then the trap was laid and currency notes were seized from the seat of the scooter belonging to the accused/appellant. Muralilal (PW-10) is the witness to seizure made under Ex. P-15. Sheikh Sarifuddin (PW-11) is the witness to Ex. P-20 by which certain information was given to the investigating officer regarding the duty of the drivers. Dauram (PW-12) is the constable and member of the trap party who has supported the case of the prosecution stating that after the trap, chemical test was conducted by him which proved positive and that currency notes were seized from the scooter of the appellant. Anand Diwan (PW-13) is the investigating officer who has supported the case of the prosecution.

After hearing counsel for the parties and perusing the material available on record including the evidence of the witnesses it has become crystal clear that the prosecution has not been able to prove the demand and acceptance of illegal gratification by the accused/appellant. From the evidence of the complainant himself it is revealed that when the accused/appellant persistently refused to accept the amount of Rs. 2,500 being given by the complainant, the same was put on the seat of the scooter belonging to him parked nearby and even thereafter the accused/appellant asked him to take the amount with him otherwise it would disappear in air. According to Bhagirathi Dewangan (PW-5) who at the time of trap was in the house of the accused/appellant itself, when the complainant had called the accused/appellant, he and the accused/appellant came to the verandah where the complainant came and touched the feet of the accused/appellant and made a request for allowing him for drive the vehicle for that he would please him. Saying so, according to this witness, the complainant tried to thrust the money in the pocket of the accused/appellant but he refused to accept the same saying that he was not in need of money. According to this witness, the appellant had also told the complainant not to indulge in such unwanted activities. This witness has further stated that protest made by the accused/appellant to the act of the complainant led to scuffle coupled with exertion of force and ultimately when the accused/appellant did not accept the money from the complainant, he went and put the same on his scooter parked nearby and when the accused/appellant told him not to do that and take the same with him, the members of the trap party came there and caught hold of the hands of the accused/appellant and seizure of money was made. Thus if the evidence of the complainant (PW-6) and the witness namely Bhagirathi Dewangan (PW-5) is seen together, they are contradictory to each other. Moreover, the record goes to show that the accused/appellant, as alleged, had no role in assigning work to the drivers because the complainant (PW-6) himself has stated in paragraph 4 of his deposition that it is Bhagirathi Dewangan (PW-5) who used to assign the work to the drivers and that while giving job to him the accused/appellant had never made any demand of money from him. In the matter of Banarsi Das v. State of Haryana (supra) it has been held by the Apex Court that in the absence of demand and acceptance of illegal gratification being proved by the prosecution, merely on the basis of recovery of tainted amount from him the accused cannot be convicted under this special provision. This apart, it is also apparent from the record that on refusal of the appellant to accept money from the complainant and his subsequent failure in thrusting the same in his pocket, he ultimately decided to put the amount on the scooter belonging to the accused/appellant parked nearby and that the recovery was not effected from the person of the accused rather it was made from his scooter. While dealing with the similar point in the case of Smt. Meena Hemke Vs. The State of Maharashtra, it has been held that any recovery not made from the person of the accused does not conclusively lead to inference of acceptance of bribe by him. Thus in these circumstances and keeping in mind that the complainant himself has not supported the case of the prosecution and later on declared hostile, it cannot be said that the prosecution has proved its case beyond reasonable doubt and that being so the appellant is entitled to receive the benefit of doubt. Thus the Court below has gone wrong in appreciation of the evidence of the witnesses and recording its findings by way of judgment impugned based thereon, which cannot be sustained in the eye of law. Consequently, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. He is already on bail and therefore his bail bonds stand discharged. Fine amount if deposited by the appellant be refunded to him.