State of M.P. vs L.P. Pathak

S.S. Dwivedi, J.

The appellant-State has preferred this appeal u/s 378 (3) of the Code of Criminal Procedure, feeling aggrieved by the impugned judgment dated 20.6.2000 passed by Special Judge, Gwalior in Special Case No. 1/99, whereby acquitted the respondent/accused from the charge under Sections 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ''P.C. Act'' for brevity).

Briefly stated the facts of the case are that at the relevant time on 17.9.98 the respondent/accused was posted as Assistant Labour Commissioner at Gwalior as a public servant. Complainant Santosh Sharma, a supplier of labourers at Bhind, had filed an application for the grant of licence as per the provisions of Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the Act No.37 of 1970")- This application has been filed by the complainant in the office of the respondent/Asst. Labour Commissioner, which had been received by the Inward Clerk of the concerning office and thereafter it is alleged that when complainant Santosh Sharma met with the respondent/accused then he had demanded the bribe of Rs. 5000/- from the complainant. On this illegal demand the complaint Santosh Sharma had contacted the Special Police Establishment, Gwalior and lodged a written complaint for the alleged illegal demand by the respondent/accused, a public servant, on which basis the concerning D.S.R Lokayukta Amar Singh Bhadoriya authorised Ram Singh Bhoj, the Inspector of Police Establishment for necessary arrangement of the proposed trap, on which basis the independent witnesses had been called and phenolphthalein powder had been spread on the currency notes of Rs.5000/- and they had been handed over to complainant Santosh Sharma for their delivery to the respondent/accused. On 17.9.98 a trap had been arranged. The trap party reached to the house of respondent/accused and then complainant Santosh Sharma had been asked to deliver the bribe money to the respondent/accused and thereafter make certain signal. On this the complainant Santosh Sharma entered into the house belonging to the respondent/accused and handed over the currency notes of Rs.5000/- and thereafter made certain signs, on which the trap party together with the independent witnesses entered into the room, caught the respondent/accused and Seizing Officer R.C. Bhoj (PW 11) seized the bribe money from the pocket of the shirt of respondent/accused and prepared the seizure memo; also washed the hands of the respondent/accused, the water colour turned into pink and then pink coloured water had also been preserved in three bottles. The seized currency notes had also been sealed. The respondent/accused had been arrested, thereafter the trap party returned back to the office, registered a case u/s 13 of the PC Act against the respondent. After the arrest the respondent had been released on bail. The sealed bottles of the preserved pink coloured water had been sent for its examination to the Forensic Science Laboratory, from where report had been received, wherein in the presence of phenolphthalein powder had been found proved. After obtaining sanction for the prosecution from the parent department of the respondent/accused the charge sheet had been filed before the Special Judge, Gwalior.

The respondent/accused before the trial Court abjured the guilt and his defence is of false implication. The learned trial Court after due appreciation of the entire prosecution evidence on record by the impugned judgment dated 20.6.2000 acquitted the respondent/accused from the aforesaid charges. Feeling aggrieved by which the appellant-State has preferred this appeal against acquittal after obtaining leave to appeal.

Having heard the learned counsel for the appellant as well as counsel for the respondent and perused the record.

It is submitted by the learned counsel appearing on behalf of the State that though the complainant Santosh Sharma had been declared hostile and had not supported the prosecution story but apart from that the seizure of the bribe money from the possession of the respondent/accused had been proved by the prosecution on the basis of the statements of the independent witnesses O.P.Saxena (PW6), who is a Gazetted Officer, Assistant Director, Fisheries and on the basis of the statement of the Seizing Officer Amar Singh Bhadoriya (PW9) the D.S.P., Special Police Establishment, and R.C.Bhoj (PW 11) the Inspector Police, Special Police Establishment and the respondent/ accused had not explained about the seizure of the bribe money from his possession then certainly presumption will be against the respondent that he had received and accepted the bribe money from the complainant Santosh Sharma and in view of this, the trial Court has wrongly acquitted the respondent/accused from the aforesaid charges. Similarly, the complainant Santosh Sharma had also accepted his signatures on the FIR/complaint, seizure memo and other memos prepared for the preparation of the trap and if he accepted his signatures then certainly it should be presumed that due to some ulterior motive he had not supported with regard to the demand of bribe money by the accused/respondent and in view of that also the statements of other witnesses cannot be disbelieved and thus, the trial Court has wrongly acquitted the respondent/accused. Hence, prayed for setting aside of the impugned judgment of acquittal passed by the trial Court and also proved for just and suitable conviction and sentence to the respondent.

In reply, the learned counsel appearing on behalf of the respondent supported the impugned judgment and submits that the complainant Santosh Sharma (PW 1) had not supported that the present respondent had ever demanded any bribe money from him. It is also submitted that if the demand of bribe money from the complainant by the accused is not proved then certainly only on the basis of the recovery of concerning currency notes from the possession of the respondent/accused has not proved anything against the respondent/accused and on the basis of such recovery the respondent cannot be held guilty for the demand of bribe money and its acceptance. Similarly, the motive for the demand of bribe money is also not proved, as what has been applied by Santosh Sharma is for a licence for supply of the labourers at Bhind, whereas the issuance of the licence for Bhind district is not the part of the duty of the present respondent, who is working as Asstt Labour Commissioner at Gwalior. He is not the Incharge of Bhind district. It is also on record that a separate Labour Office for Bhind district had already been working at the relevant time and issuance of the licence of Bhind district is the sole work of Bhind Office itself and if the motive is not proved then certainly the respondent/accused cannot be held guilty for any demand of bribe money and its acceptance. Thus, the trial Court has rightly acquitted the respondent/accused and if two views are possible then certainly the judgment of acquittal passed by the trial Court should ordinarily be not interfered with by the appellate Court. Hence, prayed for the dismissal of the appeal.

To bring home the charge as levelled against the respondent/accused, the star witness of the prosecution is the complainant Santosh Sharma (PW 1), who clearly stated before the trial Court that he had applied for the grant of labour licence for which he had filed an application in the office of Gwalior and handed over it to the concerning clerk. The clerk had also not demanded anything from him. When on 16.9.98 he again came to the office of the Asstt. Labour Commissioner, Gwalior, at that time some leader type person met him and assured him that his licence will be supplied very soon and thereafter he obtained certain signatures on various papers. He never met with the respondent/accused and the accused had never demand any money from him. On the basis of this statement of complainant Santosh Sharma (PW 1) he had been declared hostile by the prosecution and in the detailed cross-examination by the prosecutor he had denied the fact that he had ever complained against the respondent/accused at the Special Police Establishment for any alleged demand of bribe by the respondent. He had also stated that he could not identify the voice of the respondent/accused, which had been recorded in the tap-recorder for which a transcript had been prepared by the Investigating Officer, which is Ex.P/5.

On perusal of the entire statement of the complainant Santosh Sharma (PW 1) the prosecution has miserably failed to prove the demand of any bribe money by the respondent/accused, which is a material fact, which ought to be proved by the prosecution in a case registered for demand of bribe.

It is also worth to be noted that there is no shadow witness available in the present case, before whom the respondent/accused being a Public Officer, had ever demanded any bribe money from the complainant.

Complainant Santosh Sharma (PW 1) accepted that he had filed an application for the grant of licence as supplier of the labourers. The application for the licence is on record, which is Ex.P/8, and on perusal of this application also it is apparent that the application has not been properly filled up/ many columns are vacant. The concerning dealing clerk Ashok Sharma (PW 4) proved the aforesaid application (Ex.P/8) and he also proved the fact that the application is not fulfilled properly, many columns are vacant and the complainant Santosh Sharma assured him that within two-three days he will fulfill all the columns but he had not turned again to him for filling of the concerning columns, so he had kept the application with him for its proper completion and not forwarded it to the second concerning clerk Mahesh Arora (PW3).

The most important fact which has been noticed by the trial Court is on the basis of the statement of Laxmikant Pandey.(PW8) it is apparent that Smt. Sandhya Singh, Asstt. Labour Officer has been posted as Labour Officer for Bhind district and she had been relieved from the Assistant Labour Commissioner''s Office on 3.9.98 for taking charge at Bhind Office. When Labour Office Bhind had already started working on 3.9.98 then certainly there is no reason available for issuance of licence as applied by the complainant from the Labour Office at Gwalior and thus, the respondent/ accused is not having any jurisdiction for issuance of the licence as applied by the complainant from the Gwalior Office if the Labour Office at Bhind had already started working since 3.9.98. In view of that, the trial Court in the impugned judgment at para 63 clearly came to the conclusion that as the Labour Office at Bhind had started working from 3.9.98 and is authorised for issuance of the licence to the concerning applicant then certainly there is no motive available to the respondent for demand of any bribe on 16.9.98 from the complainant for issuance of such licence in favour of the complainant. This finding recorded by the trial Court for the purposes of motive for demand of bribe is based on the proper appreciation of the evidence on record and cannot be said to be perverse which can be interfered with in this appeal.

Thus, it is apparent that the prosecution has failed to prove the motive of the respondent for the alleged demand of the bribe. ''Similarly the prosecution has failed to prove the demand of bribe by the respondent/ accused on the basis of the statement of complainant Santosh Sharma. Thus, the prosecution is lacking on these two material facts which are to be proved by the prosecution in a case for conviction of the accused under Sections 13 (1) (d) and 13 (2) of the PC Act.

Now only remains the recovery of the bribe money from the possession of the respondent/accused, which has been alleged to be proved by the statements of O.P. Saxena (PW6), Amar Singh Bhadoriya (PW9), and R.C. Bhoj (PW 11). All these witnesses stated that currency notes of Rs. 5000/-had been seized from the pocket of the respondent/accused''s shirt, for which necessary Panchnama had been prepared.

Learned counsel for the appellant submits that if after the recovery of the bribe money the respondent/accused had not explained about the recovery of the concerning money then certainly a presumption should be raised against the respondent that he had accepted the bribe money from the complainant.

In reply, learned counsel for the respondent placed reliance on the decision of the Hon''ble Apex Court in case of V. Venkata Subbarao Vs. State, represented by Inspector of Police, A.P., , wherein Their Lordships of the Supreme Court held that "if the demand of the bribe money by the accused has not been proved by the prosecution then certainly only on the basis of recovery of bribe money by the accused has not been proved by the prosecution then certainty only on the basis of recovery of bribe money the presumption u/s 20 of the PC Act cannot be raised against the accused, it can be raised only if a demand has been proved by cogent evidence by the prosecution". The aforesaid law said down by the Hon''ble Apex Court is fully applicable to the present case also wherein demand of bribe money by the respondent/accused has not been proved, then certainly the presumption only on the ground of recovery of bribe money as per provision of section 20 cannot be raised against the accused.

Similarly, learned counsel for the respondent also relied on the decision of the Hon''ble Apex Court in case of State of Andhra Pradesh Vs. T. Venkateswara Rao, also, wherein the Hon''ble Apex Court held that "if the motive for demand of bribe money has not been proved then also the accused cannot be held guilty for the demand of bribe from the complainant."

Thus, on these two grounds that, motive has not been proved by the prosecution similarly the demand of bribe by the respondent/accused has also not been proved by the prosecution, the trial Court appears to be right in acquitting the respondent/accused, as the charge levelled against him for the offence punishable u/s 13 (1) (d) and Section 13 (2) of the PC Act has not been found proved. The aforesaid conclusion of the trial Court is based on proper appreciation of the facts and law on the point and does not appear to be perverse or illegal, on which basis in this appeal against acquittal this can be interfered with.

Resultantly the appeal preferred by the State against the impugned judgment of acquittal being devoid of any substance is dismissed accordingly.