Dattatry Maukhriwale vs State Of M.P.

This appeal arises out of the impugned judgment of conviction and order of sentence dated 06.08.1999 passed by learned Special Judge, Rajnandgaon, in Special Criminal Case No. 03/95 whereby and whereunder, learned Judge convicted the appellant as under:-

Conviction

Sentence

U/s. 7 of Prevention of Corruption Act

R. I. for 3 years with fine of Rs. 5,000/- with default stipulation.

U/s 13(1)(D) R/w Section 13(2) of the Prevention of Corruption Act.

R. I. for 3 years with fine of Rs. 5,000/- with default stipulation.

The case of the prosecution, in short, is that on 02.05.1990, complainant Ram Kumar Gupta (PW-4) lodged a written complaint (Ex. P/1) before the Superintendent of Police Vigilance Department, Raipur mentioning therein that for the establishment of Haller Mill & Plore Mill in the Village Tedesara, he got Rs. 35,000/- loan from Lead Office of Dena Bank, Rajnandgaon, granted by District Industrial Centre and the same was transferred to Dena Bank Somni Branch. Thereafter, complainant produced all the documents asked by Branch Manger Dena Bank, Somni. Despite producing the correct and required documents, appellant demanded Rs. 3,000/- for granting the loan. As the complainant did not want to give Rs. 3,000/- to the appellant, he filed a written complaint. Thereafter, a trap party was constituted by Police Inspector M.L. Mishra (PW-1). Phenolphthalein mixed currency of Rs.3,000/- were given to the complainant and along with the trap witness Krishna Kumar he was sent to the house of appellant. When they reached the house of appellant, appellant took them inside his house and asked for the money consequently, complainant gave Rs. 3,000/- to the appellant. Thereafter, as per plan, trap party entered the house of appellant and caught him read handed. The phenolphthalein mixed currency were recovered from the appellant and when his hand was washed, the color of mixture turned into pink. After completion of investigation, charge-sheet was filed against the appellant, FIR (Ex. P/29) was registered against him and the trial Court framed charges under Sections 7 & 13(1)(d) R/w Section 13(2) of Prevention of Corruption Act against the appellant.

So as to hold the accused/appellant guilty, the prosecution has examined as many as 9 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges levelled against him and pleaded innocence and false implication in the case. Appellant has also examined 3 witnesses in his defence.

After examination of oral and documentary evidence, learned trial Court convicted the appellant under Sections 7 & 13(1)(d) R/w Section 13(2) of Prevention of Corruption Act and sentenced him as aforementioned. Hence, the present appeal filed by the appellant.

Learned counsel for the appellant submits that the instant case is violation of mandatory provisions of law under Section 17(c) of the Prevention of Corruption Act, 1988 inasmuch as that the investigation of offence in the instant case was done by Inspector instead of Dy. Superintendent of Police without the permission of the Magistrate of First Class. As per prosecution the allegation against the appellant is that at the time of trap, accused had pay-slip along with the currency but the defence of appellant is that complainant has handed over of Rs. 3,000/- to the appellant to deposit the said amount in his bank A/c No. 2237 and complainant has also admitted this fact that accused/appellant was issuing pay slip which was seized by the trap party and this defence is proved by prosecution witnesses itself but the learned trial Court wrongly disbelieve the defence of appellant and convicted him which is against the law and facts of the case. As in this case demand and acceptance was not proved beyond reasonable doubt, therefore, the judgment and conviction is liable to be set-aside.

In support of his argument, learned counsel for the appellant placed reliance on the decision of Hon'ble Supreme Court in the case of Selvaraj Vs. State of Karnataka reproted in [(2015) 10 SCC 230], Krishna Chander Vs. State of Delhi reported in [(2016) 3 SCC 108], Dudh Nath Pandey Vs. State of Uttar Pradesh reported in [(1981) 2 SCC 166 & C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala reported in [92009) 3 SCC 779.

Learned State counsel has supported the impugned order passed by the trial Court.

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

It is not in dispute that at the time of incident, appellant was posted as Branch Manager at Dena Bank, Somni, District Rajnandgaon and account of complainant was in his branch. Complainant R. K. Gupta (PW-4) stated in his examination in chief that appellant demanded Rs. 3,000/- for sanctioning of his load of Rs. 35,000/- granted by District Industry Centre. But in para 3 he further stated that:-

Again he admitted in para 5 of his statement that:

Krishna Kumar Das (PW-6) admitted in para 18 that :-

But complainant R.K. Gupta (PW-4) admitted his signature in the pay-slip (Ex. P/8) he admitted in para 11 of his examination that:-

Defence of the appellant is that on the date of incident, bank was closed so appellant gave him Rs. 3,000/- for depositing the cash on his bank account for that appellant said the complainant to fill the pay slip (Ex. P/8), when he was about to deposit the pay-slip, trap party entered the house and caught the appellant. The same fact is also supported by S. K. Mishra (DW-1) in his statement at para 1 that:-

Chunendra Kumar (Dw-2) also stated in para 4 of his examination that:-

Further Kachrulal Jain (DW-3) has also supported the defence and stated the same in para 2 that:-

In the matter of Dudh Nath (Supra) Hon'ble Supreme Court held in para 19 as under:-

“19. We do not want to attribute motives to them merely because they were examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witness.”

In this case also all defence witnesses stated that in bank transaction it is usual routine that on the non-working day of bank they give money to bank officer and bank manager deposit the same amount on the very next day in their bank accounts. In this case Ex. P/8 was seized by the trap party which is a pay-slip of Dena Bank dated 03.05.1990 and date of incident is 02.05.1990. In the pay slip account No. of the complainant i.e. 2237 and name of complainant Ram Kumar Gupta is mentioned. Furthermore, complainant also admitted his signature in A to A part.

In State of Gujarat Vs. Navinbhai Chandrakant Joshi & Ors. reported in (2018) 9 SCC 242 Hon'ble Supreme Court held in para 11 as under:

“11. So far as the presumption raised under Section 20 of the Act for the offence under Section 7 of the Act is concerned, it is settled law that th presumption raised under Section 20 of the Act is a rebuttable presumption, and that the burden placed on the accused for rebutting the presumption is one of preponderance of probabilities. In C.M. Girish Babu V. CBI [(2009) 3 SCC 779], this Court held as under:-

“21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence.

It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.”

Since it is established that the accused was possessing the bribe money, it was for them to explain that how the bribe money has been received by them and if he fails to offer any satisfactory explanation, it will be presumed that he has accepted the bribe”

Further in the matter of Selvaraj (Supra) Hon'ble Supreme Court held in para 18 that:-

18.. In State of Kerala V. C.P. Rao (2011) 6 SCC 450, it has been laid down that recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of the testimony of the complainant regarding the demand of bribe and when the complainant is not available for examination during the trial, court has to be cautious while sifting the evidence of other witnesses. Charge has to be proved beyond reasonable doubt. This Court has laid down thus: (SCC pp. 452-53, paras 12-13)

those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in para 28 of A. Subair v. State of Kerala, (2009) 6 SCC 587 made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from one taken by the High Court.

In coming to this conclusion, we are reminded of the well-settled principle that when the Court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan AIR 1961 SC 715 At SCR p. 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows: (AIR pp. 719-20), para 9)

'9.The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup V. King Emperor, 1934 SCC Online PC 42 afford a correct guide for appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) “Substantial and compelling reasons”, (ii) “good and sufficiently cogent reasons”, and (iii) “strong serons” are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to tis own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by th court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.”

This is the case where appellant did not deny the acceptance of money but his defence is that he received this money from the complainant to deposit the same in his bank account on the very next day and complainant also admitted the fact that at the time of incident appellant told him to fill the pay-slip so he was filling the pay slip and at that time trap party arrived. Complainant also admitted his signature in the pay slip (Ex. P/8) hence, it is a plausible defence of appellant.

In G.V. Nanjudiah V. State (Delhi Admn.) 1987 Supp SCC 266 it was laid down by the Hon'ble Apex Court that the allegation of bribe taking should be considered along with other material circumstances. Demand has to be proved by adducing clinching evidence. When the fact indicating that the complainant was aware of the amount, was not withheld by the accused, this Court disbelieved that allegation of the complainant meeting the accused and presence of strangers at the time of giving bribe was held to be unnatural.

Defence of the appellant is plausible one and it is well-settled principle of criminal justice system that prosecution has to prove its case beyond all reasonable doubts and defence has to prove only plausible view of his defence. Looking to the above circumstances, statement of complainant is not reliable and defence of the appellant is proved by the prosecution witnesses and Ex. P/8 therefore, prosecution has failed to prove the demand and acceptance of bribe in this case. Thus, finding of learned trail Court is not based upon proper appreciation of oral and documentary evidence.

Hence, the impugned judgment is set-aside. Accordingly, the appeal is allowed. The conviction of the appellant for the aforementioned offence is set-aside and the appellant is acquitted of the charges framed against him. Fine amount be refunded to the appellant.