Jay Singh Nag vs State Of M.P.

This appeal arises out of the impugned judgment of conviction and order of sentence dated 01.09.1998 passed by learned Special Judge, (Anti-Corruption Act), Jagdalpur in Special Criminal Case No. 03/94 whereby and whereunder, learned Judge convicted the appellant as under:-

Conviction

Sentence

U/s. 7 of Prevention of Corruption Act

R. I. for 1 year with fine of Rs. 200/- with default stipulation.

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

R. I. for 2 years with fine of Rs. 200/- with default stipulation.

The case of the prosecution in brief is that at the time of incident i.e. on 07.05.1991, appellant was posted as Assistant Teacher at Distribution Centre, Dantewada and was also In-charge of Mid-Day Meal Distribution Centre. At that time, complainant Prahlad Soni was also posted as Principle of Primary School, Pandevar and was In-charge of Distribution Centre, Pandevar. The complainant's complaint was that he did not get his remuneration of 10 months Rs. 1,700/-, where Rs. 50/-, Rs. 90/- & Rs.30/- per month were for firewood, for cooking and for the Centre In-charge, respectively. When the complainant asked for his remuneration of 10 months to the appellant, the appellant demanded Rs. 250/- as bribe. As the complainant did not want to give bribe to the appellant, he filed a written complaint (Ex. P/43) to the Superintendent of Police, Special Police Establishment Lokayukta, Raipur, on which Dehati Nalsi (Ex. P/41) was registered. Thereafter, a trap party was constituted and complainant was sent to the house of appellant with the currency. Consequently, complainant gave Rs. 250/- to the appellant, at once, trap party entered the house of appellant and caught him red handed. After completion of investigation, charge-sheet was filed against the appellant 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 2 witnesses in his defence and exhibited documents as Ex. D1 & D/2.

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 impugned conviction and sentence is contrary to law and evidence available on record. He would further submit that the trial Court failed to see that, as per prosecution case, monthly salary of appellant was Rs. 90/- per month and if 10 months salary was not given then it would be Rs. 900/- while the complainant including other witnesses stated that Rs. 1,750/- was to be given. There are material contradiction between the statement of the witnesses. On the one hand, Pothiram (PW-3), SAF constable, stated that 5 nones in the denomination of 100 were given to the complainant On the other, M.L. Mishra (PW-9), Inspector, stated that Rs. 250/- were given. Furthermore, in this case demand and acceptance of bribe is not proved by the prosecution, 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 K. Shanthamma Vs. State of Telangana reported in (2022) 4 SCC 574.

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 at Mid-day Meal Distribution Centre, Dantewada. The same has also been admitted by the appellant. Complainant Prahlad (PW-6) Stated in his examination-in-chief that:-

Wife of the complainant namely Somari Bai @ Kamla Bai (PW-5) also stated that accused Jaisingh Nag told her about the deduction of half of income, as per order of B.D.O., but she did not state anything about the demand and acceptance of bribe. Para 1 of the statement is as under:-

Statement of Nayab Tahsildar namely K. K. Mathew (PW-1) was also recorded and he has not specifically stated about the seizure of currency. He stated in para 7 of his statement that:-

Another witness Pothi Ram (PW-3) has stated in his examination in para 4 that there were 5 notes in the denomination of Rs. 100 whereas another prosecution witness M. L. Mishra (PW-9) stated different thing in para 1 of his statement which is as under:-

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 B. Jayraj V. State of A.P. reported in (2014) 13 SCC 55 the Supreme Court observed as under:-

“7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma V. State of A.P. [(2010) 15 SCC 1] and C.M. Girish Babu V. CBI [(2009) 3 SCC 779.]”

In this case except complainant (PW-6), no other witness has stated about the demand of bribe and complainant himself stated in his examination that appellant used to say that payment will be given after deduction of 50% of salary as per order of B.D.O. Defence witness L.M. Gupta (DW-1) has stated in para 2 that:-

Kishore Kumar (DW-2) has also stated in his evidence that-

Going through the statement of defence witness, conduct of the complainant Prahlad is not reliable. He is husband of Somari Bai (PW-5) and she did not state anything about the bribe in her 161 Cr.P.C. statement. Furthermore, trap witnesses have also stated different version of recovery of the currency. It was also not made clear by K.K. Mathew (PW-1) that the currency notes which were seized from the appellant/accused were actually recovered from the accused or from the table of the appellant's house. Thus, prosecution did not establish the demand of bribe by appellant beyond reasonable doubt.

In Surajmal Vs. State (Delhi Administration) [1979 (4) SCC 725] Hon'ble Supreme Court held that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money knowing it to bribe.

Looking to the above discussion, in this case demand of illegal gratification by the appellant was not proved by the prosecution so finding of the learned Court below 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.