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Heard through video conferencing on IA No.2815/2020, a third repeat application for suspension of sentence on behalf of the appellant.
The first application for suspension of sentence i.e. I.A.No.7516/2019 was dismissed as withdrawn on 27.09.2019. Thereafter, the appellant filed a second repeat application i.e. I.A.No.9900/2019 within a short period, therefore, the same was also dismissed as withdrawn on 28.01.2020, hence the present application.
Appellant has filed the present appeal being aggrieved by the judgment dated 31.08.2019 passed by Special Judge (PC Act), Dhar whereby he has been convicted under sections 7 & 13 (1)(d) r/w section 13(2) of the Prevention of Corruption Act (hereinafter referred to as 'the PC Act') and sentenced to undergo 5-5 years RI with fine of Rs.5,000/-respectively; in default of payment of fine, further RI for 6 months.
Facts of the case, in short, are as under:
As per prosecution case, complainant Mehar Singh submitted a written complaint in the office of Superintendent of Police (S.P), Lokayukt on 11.08.2016 alleging that the present appellant being a Patwari at Patwari Halka No.4, Tanda Tehsil Kukshi had demanded Rs.7,000/- as bribe from his relative Kunvar Singh for mutation and out of Rs.7,000/-he had paid Rs.6,500/-on 08.08.2016 and he has further demanded Rs.1,500/- more but they are not interested in giving the bribe and willing to catch the accused/appellant red-handed while taking the bribe. The S.P. Lokayukt entertained the complaint and marked it to Shri S.P.S.Raghav, Inspector for verification and investigation. The Investigating Officer Shri Raghav heard the conversation, registered a case as Crime No.46/16, and constituted a trap team. According to the complainant, Kunvar Singh purchased a part of the land of survey No.195/2/2 for construction of a house vide registered sale deed dated 29/03/2016 and met the accused/appellant for mutation for which he demanded Rs.7,000/- as bribe. After constituting the trap team, the Inspector Raghav left the office of S.P on 12.08.2016 near about 06.15 A.M and reached the Rest House at Tanda at 11.00 A.M. The complainant provided currency notes of Rs.1,500/- which were chemically treated with phenolphthalein powder. The trap team left the Rest House at 12.30 P.M for the office of Patwari. As per the pre-arranged programme, the complainant along with two shadow witnesses entered inside the office of the accused/appellant and handed over the currency notes to him which he kept in the pocket of his pant. Immediately thereafter he came outside and gave a signal to the members of the trap team and in turn, the trap team entered inside the office of Patwari and recovered the tainted money from the accused. Thereafter, they completed the necessary formalities, arrested the accused, and filed the final report before the competent Court.
Learned Special Judge (PC Act) framed the charges under the PC Act against the appellant. In the trial, the prosecution examined 11 witnesses in order to prove charges. In defence, the appellant examined five witnesses to establish that he has been falsely implicated because the arms license of Mehar Singh was cancelled based on the report submitted by him. He lent certain amount to Mehar Singh which he returned to him on 12.08.2016 in his office. He neither made any demand of bribe nor any case of the complainant is pending with him. The name of Kunvar Singh had already been mutated. Learned Special Judge after appreciating the evidence came on record has held that the accused/appellant has failed to give evidence in rebuttal, therefore, by virtue of section 20 of the PC Act the charges have been proved against him, hence the present appeal before this Court by the accused.
Learned counsel for the appellant submits that the appellant has been falsely implicated by the complainant as he was demanding the amount which he lent as a loan to him. The complaint was not submitted by Kunvar Singh who applied for mutation. The work of mutation had already been done. He further submits that there was a delay of 3 months in submitting the complaint before the S.P Lokayukt. Mere possession of tainted money cannot lead to a presumption of acceptance of a bribe. The demand and acceptance of tainted money have not been proved by the prosecution beyond reasonable doubt. The appellant is in jail since 31.08.2019 and there is no likelihood of early hearing of this appeal.
Shri Raghuvanshi learned counsel for the respondent/Lokayukt opposes the application by submitting that the trap conducted by the Lokayukt Police was successful. Although the electronic evidence has been disbelieved but the transcript has been proved by the witnesses to establish that there was a demand of bribe by the appellant. The accused/appellant has failed to give a valid explanation for the recovery of tainted money from his pocket, therefore, he has rightly been convicted and sentenced by the trial Court, therefore, he is not entitled for the benefit of suspension of sentence.
It is not in dispute that from 19.05.2016 to 12.08.2016 the appellant was posted as Patwari at Halka No.4. Kunvar Singh applied for mutation but he did not make any complaint regarding the demand of bribe to the Lokayukt Police and on his behalf, Mehar Singh submitted the complaint. Mehar Singh did not record the conversation at the time of handing over the bribe money. The complainant submitted the complaint on 11.08.2016 with a recording of the conversation on his mobile phone. Based on the said conversation, the Lokayukt Police has conducted the trap. The appellant gave a specific suggestion to the complainant Mehar Singh about the loan amount taken by him and cancellation of his arms license. In defence the accused examined 5 witnesses. Prima facie, learned trial Court has wrongly held that the appellant did not give any evidence in rebuttal.
The Apex Court in the case of B.Jayaraj V/s. State of Andhra Pradesh : (2014) 13 SCC55, has held that the demand of bribe is a condition precedent and mere recovery of currency notes cannot constitute the offence u/s.7 of the PC Act. The presumption of section 20 is not available to section 13(1)(d) and it applies to section 7 only. In the case of B.Satyanarayan Murthy vs.Dist.Insp.Of Police &Anr reported in (2015) 10 SCC 152 also the Apex Court has held that mere recovery itself cannot prove the charge of bribe unless it was proved that the accused accepted the money knowing it to be a bribe. If two views are possible, the accused must be given the benefit of doubt. In the case of V.Sejappa vs. State of Police Inspector Lokayukta, Chitradurga reported in (2016) 12 SCC 150 again the Apex Court has reiterated that mere recovery of money was not enough to draw the presumption. The appellant is in jail since the last 9 months and there is no likelihood of early disposal of this appeal in the near future. The Apex Court in the case of Vedkumar Pandya vs. State of M.P. (SLP No.6560/2019 decided on 16.09.2019) has suspended the sentence to the appellant under the PC Act only on the ground that he is in custody since last ten months and there is no likelihood of early disposal of the appeal in near future. The entire order is reproduced below:-
The petitioner has been in custody since 29th November 2018. Considering the fact that the sentence is only for four years and disposal of the appeal is likely to take time, having regard to the pendency of cases, we deem it appropriate to direct that the petitioner be released on bail in Special Case No.29 of 2016 dated 29th November, 2018 on conditions to the satisfaction of the Special Judge (Prevention of Corruption Act), Indore. The special leave petitions are disposed of.
In view of the above, the application is allowed and it is directed that subject to deposit of the fine amount with the trial Court (if already not deposited) and furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before the Registry of this Court, the execution of custodial part of the sentence shall remain suspended till the final disposal of this appeal. The appellant after being released on bail shall mark his presence before the Registry of this Court on 11.10.2021 and on all such subsequent dates, as may be fixed in this behalf by the Registry during the pendency of this appeal.
Before releasing the appellant from the custody, the Jail Authorities are directed to medically examine him in order to rule out the possibility of COVID-19 infection and shall comply with the direction given by the Apex Court in Writ Petition No.01/2020.
List the matter for final hearing in due course.
C.c as per rules.