Pratap Singh and Another vs State of M.P.

M.A. Siddiqui, J.—The appeal has been filed by the appellants against the judgment dated 01.12.1998 delivered by Special Judge, Narsinghpur in Special Case No. 1/95 whereby appellant no. 1 Pratap Singh has been convicted for alleged offence punishable u/s 7 of Prevention of Corruption Act, 1988 (for short "the Act") and sentenced to R.I. for one year and fine of Rs. 5,000/-, in default of payment of fine to undergo R.I. for three months, whereas appellant No. 2 Vimal Kumar has been convicted for alleged offence punishable u/s 12 of the Act and sentenced to R.I. for six months and fine of Rs. 200/-, in default of payment of fine to further undergo R.I. for one month relevant time. It is also undisputed that on 18.9.92 he arrested Rajaram (PW6) and Prem Narayan (PW7) for the offence of Excise Act who were charge-sheeted and found guilty. In short, the prosecution case is that, on 19.9.92 Jasman @ Jaswant (PW1) approached appellant No. 1 Pratap Singh for release of Rajaram (PW6) and Prem Narayan (PW7). Pratap Singh made a demand of Rs. 15,000/- for their release. After some haggling, appellant Pratap Singh agreed to accept Rs. 5,000/- for release of Rajaram and Rs. 1,200/- for Prem Narayan. Out the agreed amount of Rs. 6,200/- (in total), Rs. 5,000/- were paid and Rajaram was released. Rs. 1,200/- were demanded as bribe by appellant No. 1 from Jasman (PW1) for release of Prem Narayan. As Jasman (PW1) was not having sufficient money, so he pledged the gold coin to Ashok Soni (PW8) and got the money. Jasman also narrated this fact to Ramnarayan Lodhi (PW5), Sarpanch of Village Salechowka and both reached to the office of SPE, Lokayukta on 21.9.92 where Ramnarayan Lodhi (PW5) wrote the complaint Ex. P/1 on the instructions of Jasman (PW1) and Jasman put his signatures and then he handed over this Ex. P/1 to Supdt, of Police, Lokayukta, Jabalpur who called T.I. Prakash Agnihotri and Shri Agnihotri arranged the trap. Prakash Agnihotri and Shri Agnihotri (PW10), after receiving report (Ex. P/1)enquired the matter and called R.K. Jain and Mahendra Kumar Choubey (PW2). Complainant Jasman was introduced to them and they enquired and verified the matter and Prakash Agnihotri (PW.10) registered FIR (Ex. P/2). The currency notes of Rs. 100/- (twelve in denomination) total Rs. 1,200/- were handed over by Jasman (PW.1) to trap party. Mahendra Kumar Choubey (PW.2) put special mark on each note and on these notes Santosh, working as Peon in the Office of SPE, Lokayukta applied phenolphthalein powder and demonstration of phenolphthalein powder was made and tainted notes were kept in the pocket of complainant Jasman (PW1). He was asked not to touch the notes and to handover the same to appellant No. 1 Pratap Singh and to give specific signal after acceptance of tainted notes by the appellant. In the night Jasman (PW1) and Ramnarayan Lodhi (PW5) remained at Jabalpur and in the morning with trap team including Mahendra Choubey, R.K. Jain, Jasman, Ramnath, Nirbhaysingh, Prakash Agnihotri, Inspector, R.K. Pandey and Peon Santosh started from Jabalpur to Gadarwara by Bina Passenger and they reached Gadarwara.

At Gadarwara, Prakash Agnihotri (PW10), after giving directions at Railway Station, accompanied them near rest house where appellant no. 1 Pratap Singh was residing. Complainant Jasman (PW1) approached Pratap Singh in his office which was near the rest house and requested for release of Prem Narayan and to accept the bribe, appellant Pratap Singh came out of the Office, appellant Partap Singh called appellant No. 2 Vimal Kumar and they both took him to the rest house, near rest house Pratap Singh asked Jasman (PW1) to handover the money to appellant No. 2 Vimal Kumar, so Jasman (PW1) handed over the tainted notes of Rs. 1,200/- to appellant No. 2 Vimal Kumar, After handing over the money, he gave the instructed signal, on which trap team reached there and Prakash Agnihotri (PW10) gave his introduction and on his instructions tainted notes of Rs. 1,200 were seized from possession of appellant No. 2 Vimal Kumar and appellant No. 1 Pratap Singh was also taken into custody. From the room of Pratap Singh Rs. 3,000 and from his pocket Rs. 2,000 were recovered. Hands of appellant No. 2 Vimal Kumar were washed with sodium carbonate solution which turned pink which was seized FIR (ExD/1) was recorded at the spot. The seized solutions were chemically examined by FSL and positive report (Ex. P/18) was received.

After due investigation and after taking sanction vide Ex. P/17 charge-sheet was filed u/s 7 of the Act against appellant No. 1 Pratap Singh and u/s 12 of the Act against appellant No. 2 Vimal Kumar Bairagi. On being charged, appellants pleaded false implication.

To substantiate its case, prosecution examined jasman@ Jaswant (PW1), Mahendra Kumar Choubey (PW2), Khushal (PW3), Bhanu Pratap Verma (PW4) Ramnarayan Lodi (PW5), Rajaram (PW6), Prem Narayan (PW7), Asok Kumar Soni (PW8), N.K. Shukla (PW9) and Prakash Agnihotri (PW10). Khushal (PW3) and Bhanu Pratap Verma (PW4) are formal witnesses.

On charges being framed, appellants abjured the guilt. u/s 313 Cr.P.C., defence of appellant No. 2 Vimal Kumar Bairagi (hereinafter referred to as "appellant Vimal") was false implication, and of appellant No. 1 Pratap Singh (for short "Appellant) was that since he had made case against the complainant who was convinced by the Court, due to this enmity be has been falsely implicated in the case, but no evidence was produced.

As far as the fact that appellant was a public servant is concerned, appellant was working as Excise Sub Inspector at the time of incident and so was the statements of the prosecution witnesses and it is also undisputed that he caught Rajaram (PW6) and Prem Narayan (PW7) under Excise Act and made cases against them. In statement u/s 313 of Cr.P.C. appellant also admitted that he was Excise Sub inspector so he was a public servant. As far as valid sanction is concerned, N.K. Shukla (PW9) stated that sanction vide Ex. P/17 was granted by the Government. It is also pertinent to note that defence has not challenged the point of sanction as well as point of public servant, so it has been established that the appellant was a public servant at the time of incident and valid sanction to prosecute him was duly taken.

Jasman @ Jaswant (PW1) stated that his maternal uncle Rajaram (PW6) and Prem Narayan (PW7) son of elder brother of Rajaram were caught by appellant, the then Excise Sub Inspector and were taken in custody. Then they were taken to Gadarwara from village-Basuria, Jasman was apprised of the fact in the evening, so in the morning he went to Gadarwara and contacted appellant who demanded Rs. 15,000/ as bribe for release of Rajaram and Prem Narayan. Thereafter the bribe amount was settled at Rs. 5,000/- for release of Rajaram and Rs. 1,200/- for Prem Narayan. As the witness was not having sufficient means, so he pledged two gold coins with Gulab Soni for Rs. 3,000/-and he approached to appellant, but appellant refused to release Rajaram and Prem Narayan. At the time of pledge, Gulab Soni asked the witness that if some more money is required, it may be given. So, Jasman (PW1) again approached Gulab Soni and took Rs. 2,000/- more from him, total Rs. 5,000/- Jasman (PW1) gave Rs. 5,000/- to appellant so Rajaram was released. But Prem Narayan was not released. Witness stated that appellant said that within two days Rs. 1,200 will be given to appellant then only the appellant will release Prem Narayan. Then Jasman (PW1) approached Sarpanch Ramnath Badkul of Salechowka and narrated the whole story to him. Then Ramnarayan asked him to come in the morning and then it was settled to go to Jabalpur, in the morning, Jasman (PW1) went to Sarpanch with Rs. 1,200/- and with him from Shuttle Train both came to Jabalpur. At Jabalpur, they approached the office of SPE, Lokayukta where 3-4 officers were sitting. Jasman (PW1) narrated the whole story and amnath Badkul wrote the report Ex. P/1 on which this witness put his signatures. On this report, First Information Report (P2) was written on which the witness stated that he also put his signatures. Jasman (PW1) further stated that at Jabalpur Office, he handed over Rs. 1,200/-to one official and on the notes powder (phenolphthalein) power was shown. By washing hands of other officers, the solution did not turn its colour, but by washing hands of other person who applied phenolphthalein powder, the solution turn into pink: Jasman stated that this solution was sealed in a bottle and two small packets of powder were also sealed. Pre-trap panchnama (P.3) was prepared. As it became late in the evening, so he and Ramnath Badkul stayed at Jabalpur and on the next day the witness, Ramnath Badkul and 4-5 persons departed to Gadarwara from Jabalpur. At railway station, they took tea and officials of SPE, Lokayukta told him to go and give the bribe money to appellant. Then, the witness came to appellant and asked him to take the money and to release Prem Narayan. At that time, Prem Narayan was not in the office. He had gone outside to take tea. This witness further stated that appellant asked him to remain outside awaiting him. Then the witness came out and sat on the road. After sometime, appellant came to him with appellant Vimal and asked in to come to rest house and outside of the rest house appellant told this witness to give the bribe money to appellant, Vimal, on which the witness over Rs. 1,200/- to appellant. Jasman (PW1) further stated that time officers who came with him were In the rest house and were peeping through the windows, so when the witness gave instructed signal, by that time both appellants went inside the room of rest house, the officials of trap team came there and caught hold of hands of appellant Vimal and asked him, then appellant Vimal confessed that he had taken the money on the instruction of appellant. Then the officers did the writing work and this witness remained outside, and Rs. 5,000/- and Rs. 1,200/- were also seized. He further stated that when they started from Jabalpur, after applying the phenolphthalein powder, Rs. 1,200/- were kept in his pocket and he was instructed not to touch the tainted notes before giving the same to appellant.

Rajaram (PW6) stated that on 18.09.92 he was caught by appellant with his nephew Prem Narayan and they were taken by a Matador to Gadarwara. As appellant was Excise Sub Inspector he got involved him in excise case. On the next day, witness stated that his maternal nephew Jasman (PW1) came at Gadarwara and told him that appellant is demanding Rs. 5, 000/ from each of them to release. Then Jasman pledged gold coin and arranged Rs. 5,000/-. Jasman handed over Rs, 5,000/- to appellant on which appellant, after taking signature of this witness, released him, but Prem Narayan was not released and it was asked that he will be released only after giving bribe of Rs. 1,200/-. Thereafter the witness came back and Prem Narayan was released after 1-2 days.

Prem Narayan (PW7) stated that he was caught with his uncle Rajaram when he had gone to the house of Rajaram as a guest by appellant on the ground that he was involved in case of excise. Appellant demanded Rs. 5,000 from each of the appellants, Rs. 5,000 were arranged by Jasman (PW1) so Rajaram was released on giving Rs. 5,000/- by Jasman. Rs. 5,000/- were also demanded from the witness, but the matter was settled for Rs. 1,200, then Jasman asked him that he will arrange Rs. 1,200/ - more. Witness stated that Rajaram was released but he remained there for whole night. On 22.09.92 as the witness was suffering from stomach pain, so he went for treatment to his village. When he came back, Jasman (PW1) met him who informed the witness that the appellant was caught red handed on complaint made by Jasman (PW1) while appellant was taking bribe of Rs. 1,200/- The witness stated that warrant was issued against him so he approached the Court whore fine of Rs. 200/- was imposed on him which he had deposited and was released in case of excise.

Ashok Kumar Soni (PW.8) S/o Gulabchand Soni stated that on 19.09.92 Jasman (PW1) approached him, and firstly, he, by pledging two gold coins, took Rs. 3,000/-, and afterwards he took Rs. 2,000/- more from him. He stated that Jasman pledged gold coins as per photo copy of cash register P/14, P/15 and P/16.

Learned counsel for appellants submitted that evidence relating to bribe of Rs. 5,000 for release of Rajaram is not the matter in issue and there is no charge of taking this Rs. 5,000/ -, so version of Rajaram (PW6)and Ashok Kumar Soni (PW8) have no importance and no direct connection with the alleged bribe of Rs. 1,200/ -. Counsel further submitted that as far as version of Prem Narayan (PW7) is concerned, he has not stated that any bribe money was handed over before him and he was under custody as he specifically admitted that he had gone to his village for treatment on 22.09.92 and as per admission of Prakash Agnihotri (PW10) in para 10 of his statement vide P/11, 12, 13, it is very much clear that Prem Narayan was also released prior to 22.09.92, the alleged day of trap, and on 22.09.92 at Gadarwara, Rajaram and Prem Narayan admitted the guilt and were punished. Counsel submitted that as Rajaram has already been released as such there was no occasion to ask for money as bribe.

On the other hand, learned counsel appearing for SPE, Lokayukta submitted that for punishment u/s 7 of the Act, It is not necessary that accused should be in a position to give favour as in case of Section 13 of the Act.

We do agree with the contention of counsel for respondent that u/s 7 of the Act it is not necessary that accused should be in a position to give favour as in case of Section 13 of the Act.

Now, we will discuss the cross examination of Jasman (PW.1) and other evidence on record.

Mahendra Kumar Choubey (PW2) Asstt. Engineer, Upper Narmada Division, Pachpedi, Jabalpur stated that he was called as a witness and Jasman (PW2) was introduced to him. He after reading complaint (P1) verified from Jasman and put his signatures from "B to B" on this application and wrote that complaint has been verified. Then Rs. 1,200/- were handed over to him, on which the witness put his small initials, phenolphthalein powder was applied on the notes and same were kept in the pocket of Jasman (PW1) and he was told not to touch them. Per-trap Panchnama (P.3) was prepared. The witness further stated that on 22.09.92 in the morning he along with R.K. Jain, Nirbhay Singh, Prakash Agnihotri inspector, R.K. Pandey Inspector, Santosh Peon and Jasman @ Jaswant (PW1) started by passenger from Jabalpur to Gadarwara and reached 9 Am in the morning at Gadarwara. They alighted at railway station, rest house and office of appellant situated nearby the railway station. Witness further stated that Jasman was sent to give bribe money and they remained 50-60 mtrs. Away from there. Then, on the signal given by Jasman (PW1), trap party reached there Jasman @ Jaswant came out of the Excise Office. Inspectors of the trap team caught hold the appellant, but the tainted money was not found in his possession. Witness stated that at that time appellant was resisting and hot talk took place. Then Jaswant told that he had given the tainted notes to appellant Vimal who was a mediator, at that time appellant Vimal was also there. Appellant and appellant Vimal were taken to Room No. 3 of rest house where inspector rebuked appellant Vimal, on which appellant Vimal took out Rs. 1,200/- and handed over the same to inspector. These notes were the same tainted notes on which there were signatures of witness. Then, hands of appellant Vimal were washed by sodium carbonate, the solution turned into pink. Some papers were sized from appellant vide Ex. p/4, 4, 5, 6, 7, 8 and P/9. Final panchnama (P10) was prepared on which the witness and his companion R.K. Jain put their signatures.

Learned counsel for appellants submitted that Mahendra Kumar Choubey (PW2) admitted in para 26 of his cross-examination that no money was recovered before him from appellant Vimal, he also admitted vide para 27 of his cross-examination that the bottles of the solution were prepared at Jabalpur and were washed. Moreover he also admitted that Santosh Kumar Peon who applied phenolphthalein powder on the notes also accompanied the trap team. Counsel submitted that Jasman @ Jaswant (PW.1) has admitted categorically in his cross-examination vide para 40 that tainted money was recovered from front pocket of shirt of appellant. He has categorically stated that the tainted money was not recovered from appellant Vimal.

Ramnarayan Lodhi (PW5) stated that he accompanied Jasman (PW1) up to the rest house where tainted notes were given to appellant Vimal on the instructions of appellant by Jasman before him. But, Jasman (PW1) and Mahendra Kumar Choubey, (PW2) did not envisage even presence of this witness. Though, Jasman (PW1) stated that this witness accompanied with them up to Gadarwara in train, but he has categorically stated that he went alone, so is the version of Mahendra Kumar Choubey (PW2). This witness is the person who took Jasman (PW1) to the Office of Lokayukta, Jabalpur and wrote report (P1) and has become the witness of bribe, while his presence has not been shown by complainant Jasman (PW1) and Mahendra Choubey (PW2). Even Prakash Agnihotri (PW10) the Investigating Officer has not stated about presence of this witness Ramnarayan Lodhi (PW5). Prakash Agnihotri (PW10) stated in para 3 of his examination in chief that after reaching Gadarwara, he instructed Jasman (PW1) to go to the office of appellant and give him the bribe money. It appears that Ramnarayan Lodhi (PW5) was very much interested in prosecution of the appellant. Moreover Ramnarayan Lodhi (PW5) stated that bribe money was given in the room while Jasman (PW1) stated that bribe money was handed over outside the rest house. He stated in the Court that he was present through out the trap proceedings, while as per his statement Ex. D/4, he stated to the police that as soon as trap proceedings started he left the place of incident. So, it is very much clear that Ramnarayan Lodhi (PW5) is a concocted witness and his presence has not been shown by any witnesses.

Mahendra Kumar Choubey(PW2) has admitted in para 14 of his cross examination that he perused the file before giving the statement and he noted down the numbers of notes and prepared note (Ex. D/3) which was seized from him. He further admitted in para 15 of his cross-examination that he prepared Ex. D/3 in the office of prosecutor.

Learned counsel for appellants submitted that Prakash Agnihotri (PW10) also gave his statement with perusal of case diary in front of him for which he was objected and warned. Even the witness was not sure in the Court about Article A to I, the tainted notes, whether they were seized or not.

Learned counsel for respondent submitted that demand of bribe was there as per statements of Jasman (PW1) and Mahendra Kumar Choubey (PW2) and by written report (Ex. P/1).

Per contra, learned counsel for appellants submitted Jasman (PW1) specifically stated in paras 31 and 32 of cross examination that he knew only to sign, he stated that he is not so educated to read and write. Jasman (PW1) further stated that he only put his signatures on what was written by Ramnath Badkul on report (P1) without his knowledge.

As far as statement of Mahendra Kumar Choubey (PW2) is concerned, he stated in his cross examination para 18 that all the things were told to him by Deputy Supdt of Police Nirbhay Singh and Nirbhay Singh handed over report (Ex. P1). He also admitted that he did not mention on Ex. P/1 that he read over the report (P1) and same was admitted to be correct by complainant Jasman (PW1). This type of note has not been written by him. He further stated in para 19 that Ex P/1 was not written before him, and notes of Rs. 1,200/- were there at the table. DSP Nirbrhay Singh handed over the notes to him and the witness was not in know of the fact from where the notes came.

Learned counsel for appellants submitted that as far as case of appellant Vimal is concerned, not a single words has come against him that he was aware that the money was of bribe. It is submitted that prosecution utterly failed to prove that money was received and it was recovered from appellant Vimal. Even for the sake of argument, it is assumed that appellant Vimal received the money and it was recovered from his possession, then in that situation still not a single word is there that appellant Vimal was having any knowledge that the money was of bribe and he received the money on the instructions of appellant so provisions u/s 12 of the Act are not attracted at all.

Learned Special Public Prosecutor submitted that in M.W. Mohiuddin Vs. State of Maharashtra, , in the context of "obtains the pecuniary advantage" in Section 7 and 13(d) of the Act, the Apex Court held that once the accused comes into possession of the tainted money, the only inference is that he accepted the same and thus "obtained" the pecuniary advantage 4. In our opinion, the above proposition pertained to a particular situation under which it could be held that the accused came to hold and/or came in control of the tainted money. It has further been explained by the Apex Court in para 7 of the decision that whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances in each case. In the case of Mohiuddin (supra), it was proved that the accused made a demand and also got the affirmation from other witness that he had brought the demanded money. In case of The State rep. by Inspector of Police, Pudukottai, Tamil Nadu Vs. A. Parthiban, relied on by the counsel for respondent, the Apex Court held that every acceptance of "illegal gratification" whether preceded by a demand or not, would be covered by Section 7 of the act, but if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall u/s 13(1)(d) of the Act. Learned counsel for respondent further placed reliance in case of B. Noha v. State of Kerala and another (2006) 12 SCC 277, wherein the Apex Court held that when it is proved that there was voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case, but in paragraph 11 of the same decision the Apex Court clarified that there was no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect. When an amount is found to have been passed to public servant, the burden is on public servant to establish that it was not by way of illegal gratification. Thus, from the above propositions, it appears essential to examine whether appellants, accepted or obtained the money by way of illegal gratification or bribe.

In the case of B. Noha (supra), the Apex Court observed that when it is proved that there was a voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. In cases of M. Narsinga Rao Vs. State of Andhra Pradesh, and (2000) 9 SCC 752 in the case of State of A.P. v. Kommaraju Gopala Krishna Murthy held that when amount is found to have been passed to public servant, the burden is on public servant to establish that it was not by way of illegal gratification. If this burden was not discharged, it was to be presumed that he accepted the money as illegal gratification.

Learned counsel for respondent submitted that presumption of Section 20 of the Act is there as soon as the money passes and recovered and unless otherwise is proved by defence, it has to be presumed that money was received as a bribe on demand.

Per contra, learned counsel for appellants submitted that presumption shall be applied where the bribe money has been accepted and in this case no demand, acceptance and recovery has been proved beyond reasonable doubt, so no presumption can be raised u/s 20 of the Act.

We do agree with the contentions advanced by learned counsel for appellants that no presumption can be drawn unless and until acceptance or passing of money is there. From perusal of statements of prosecution witnesses it appears that not a single word is there about the knowledge that may be attributed against appellant Vimal that he was having any knowl- edge about the fact that money was of bribe. On the other hand, the prosecution story is very much shaky on the point of receiving and recovery of money from appellant Vimal. On due consideration of the overall circumstances, evidence on record and submission of the learned counsel for parties, we find that appellant Pratap Singh demanded the bribe and appellant Vimal received the same on his instructions and tainted money was recovered from them. Since, in this case it has not been proved beyond reasonable doubt, so no presumption can be raised u/s 20 of the Act. For the reasons aforesaid, this appeal is allowed. The judgment of conviction and sentence passed against the appellants by the trial court is set aside. Appellants are acquitted of their respective charges. Their bail bonds and personal bonds are discharged.