Rodsingh S/o Jassasingh Kachhawa vs State Of M.P

Being aggrieved by the judgment and order dated 26/09/2017 passed in Special Case No.6/2015 by Special Judge (Prevention of Corruption Act), Ujjain whereby the learned Court has held guilty the appellant for the offence punishable under Section 7 and 13(1)(D) readwith 13(2) of the Prevention of Corruption Act and sentenced him to undergo four years RI with fine of Rs.2,000/- and 4 years RI with of Rs.2,000/- in default of payment of fine, further to undergo 2 months RI and 2 months RI, the appellant has preferred this present appeal.

Facts in brief are that appellant was working as Assistant Grade-III in the Office of Nagar Nigam, Ujjain and the complainant was working as Peon. It is alleged that on 10/07/2014 the complainant Hariram Kushwaha submitted a complaint before the Lokayukta, Ujjain that around six months back, he was suspended for negligence in his duty and Departmental Inquiry was being conducted by the appellant, wherein he was demanding Rs.1,000/- for giving the report in his favour and for reinstating the complainant. On the same day, a trap was laid and appellant was trapped accepting Rs.1,000/-from the complainant in a Tea Stall near Chamuda Mata Chauraha. After preparing the pachnama and all other formalities, charge-sheet was filed before the learned Special Judge under PC Act. Appellant was charged under Section as mentioned above in para No.1 and he abjured his guilt. After taking prosecution evidence and granted opportunity to defend the accused, the learned trial Court considered the evidence and held the offence proved and punished the appellants as stated in para 1.

The appeal is preferred on the ground that judgment and order of the trial Court is contrary to law and facts available on record. The learned trial Court erred in not considering the fact that there is no motive for the appellant to commit such offence. The learned trial Court committed error in not considering the material contradictions and omissions appeared in the statements of prosecution witnesses. The appellant has falsely been implicated in the present matter, therefore, appellant prayed that the impugned judgment and order be set-aside and he be acquitted.

Learned  counsel  for  the  appellant also  raised  two  vital grounds; firstly whether the Court below has erred in not considering that sanction which has been taken for prosecuting the appellant is illegal or not and secondly, whether there is sufficient evidence to prove the demand ?

Learned Public Prosecutor has supported the judgment and order. It is argued that prosecution has submitted original memory card, in which voice recording was done and it is primary evidence of recording. In addition to it, the respondent has also submitted CDs prepared out of the said memory card. The said CDs are secondary piece of evidence. Thus, on the basis of aforesaid, it is clear that prosecution has proved the demand. It is argued that first of all the complainant has categorically stated before the trial Court that the appellant has raised the demand of illegal gratification and secondly there are other evidences too on record to prove the demand like voice recording and circumstantial evidence, which goes against the appellant. It is further urged that no ground is raised in the appeal memo to challenge the legality or validity of sanction for prosecution. A challenge has been thrown to the sanction for prosecution for the first time at the time of final hearing of the matter. Appellant cannot be permitted to raise a ground for the first time at final hearing of the appeal itself. It is prayed that the appeal deserves to be dismissed.

I have considered rival contention of the parties and have perused the record.

The prosecution has examined as many as 9 witnesses. So far as regarding ground of demand, on bare perusal of the record, it clearly appears demand is not proved. So far as other grounds are concerned, which has been raised in the appeal memo has not been pressed by the learned counsel for the appellant at the time of hearing of the appeal.

So far as first question regarding demand is concerned, appellant has submitted that demand has not properly proved before the Court. He states that complainant-Hariram was suspended and inquiry was conducted by the present appellant and the complainant has further stated that the appellant has demanded an amount of Rs.1,000/- for reinstatement of the complainant. Thus, in the complaint as well as in examination-in-chief Hariram alleged that appellant has demanded the money for his reinstatement by concluding inquiry in his favour. So far as cross-examination is concerned, in para 54, 55 and 56 he states that no such Departmental Inquiry was proved to have initiated. He admits in para 54 that Ex.P/3 is the order of suspension, wherein it has been clearly mentioned that the complainant-Hariram would receive full salary during the period of suspension. After receipt of suspension order Ex.P/3, he did not receive any departmental notice, charge-sheet or any list of witness till date. He has clearly admitted that he did not receive any document regarding the Departmental Inquiry till he made the complaint to the Lokayukta. Similarly in para 56 he again admitted that he was not given any date to appear before any departmental authority nor he has ever signed on any proceeding before any disciplinary authority.

All these clearly shows that no such Departmental Inquiry was ever initiated against the complainant, therefore, it was highly improbable that the accused would have demanded Rs.1,000/- from him to given a favourable report in favour of complainant.

So far as question of demand of money for revocation of suspension is concerned, it has already come on record that the appellant himself had moved the note-sheet to the Dy. Commissioner for revocation of the suspension of complainant on the ground that no Departmental Inquiry was ordered within 6 months from the suspension, therefore, the question of demand of any money from the complainant does not found proved.

In the present case, as per the complainant the Departmental Inquiry was initiated against him and for completing the said Departmental Inquiry by the appellant in his favour has demanded bribe of Rs.1,000/-. However, the complainant has failed to prove that whether any Departmental Inquiry was initiated or not against the complainant, therefore, on that basis the demand cannot be said to be proved.

So far as second point regarding sanction for prosecution is concerned, learned counsel for the appellant submits that sanction which is granted in the present case was not proper sanction and was not given by the Competent Authority, therefore, it is not a proper sanction, as per Section 19 of the Prevention of Corruption Act. The sanction for prosecution required under Section 19 of the Prevention of Corruption Act is on record and this order has been signed by Shri Avinash Lavaniya, who was the Municipal Commissioner at the relevant point of time. Learned counsel for the appellant has relied on number of judgments on this point.

In view of the detailed discussion and rival submissions made by learned counsel for both the parties and also in the peculiar facts and circumstances of the present case, I deem it proper/appropriate to allow this appeal partly. The conviction and sentence awarded by the trial Court to the appellant is hereby set-aside.

Accordingly, appeal stands disposed of finally. C.C. as per rules.