State of M.P. vs Rafique Khan

M.C. Garg, J.—This appeal has been filed by the State of Madhya Pradesh through its Special Police Establishment, Lok Ayukta Office, Indore, to assail the judgment delivered by the Special Judge (Prevention of Corruption Act), Dhar, in Special Case No. 03/2000 acquitting the respondent of the charges under Sections 7, 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 delivered on.....The appeal was filed with an application for grant of leave to file such an appeal, which was granted. According to the appellant, the judgment of the Special Judge is not sustainable in law that the Special Judge has committed an error by disbelieving Kailashchandra Bairagi (P.W. 2) the complainant who very specifically deposed about the demand of Rs. 8,000/- (later reduced to Rs. 6,000/-) by the accused from him for the purpose of mutating the land belonging to him and his other brothers over and above the legal dues. It is submitted that this had corroborated the complaint made by the complainant vide Exh. P-1 and the Panchnama (Exh. P-2) regarding the amount paid by him to the Special Police Establishment Branch which money was also recovered from the respondent after the trap. It is also the case of the appellant, that the Trial Judge also committed an error in disbelieving the statement of Radheshyam (P.W. 5) and Arun Kumar Laharia (P.W. 6), who also corroborated acceptance of the illegal gratification by the respondent. It is submitted, that the very fact, that the hand of the respondent/accused turned pink, when dipped in the sodium carbonate solution was also not considered by the Judge erroneously. It is, thus, submitted that in the present case, there was ample evidence available on record for the purpose of convicting the respondent/accused. It is also submitted, that the reasons given by the Lower Court in returning the finding of acquittal by holding that there were doubts in the story of the prosecution, and that, the case was wrongly foisted against the respondent/accused on account of enmity, is also not correct. It is thus prayed that the appeal be accepted and respondent be convicted of the charges framed against him.

Nobody has come forward to address arguments on behalf of the respondent/accused despite service of notice. However, we have perused the record, including the judgment passed by the learned Special Judge.

Briefly stating, the case of the prosecution is, that after a family partition of his property by Laxmandas, father of the complainant in the year 1980, the property was to be mutated in the name of all the shareholders and a Rin Pustika was to be issued. For that, separate applications were filed before the Naib Tehsildar. The partition document was also placed before the Naib Tehsildar on 16-6-1999. The Naib Tehsildar asked the Patwari to prepare a nomination filed on 23-6-1999. On. 24-6-1999, the respondent/accused measured the land and asked the complainant to pay a sum of Rs. 6,000/- for the purpose of issuing Rin Pustika and mutation of the property as illegal gratification. On 25-6-1999, the complainant approached Special Police Establishment Office of the Vigilance Department in Indore and informed them about the illegal demand by filing a complaint which is Exh. P-1. A tape-record was given by Shri Mohan Singh of the Special Police Establishment to the complainant, so that he can record the discussions had with the complainant regarding the demand of illegal gratification, which was done by the complainant on 29-6-1999 at the house of accused in presence of Radheshyam (P.W. 5) his associate. On 30-6-1999 a trap party was formed and at that time, a sum of Rs. 6,000/-, which was brought by the complainant, i.e., 11 notes of Rs. 500/- and 5 five notes of Rs. 100/-, were taken into possession. They were treated with Phenolphthalein powder and were returned to Kailashchandra Bairagi with instructions to hand over the same to the accused when demanded. Trap was laid on the same day at about 11.00 a.m. at the house of the respondent/accused. The complainant paid a sum of Rs. 6,000/- to the accused as illegal gratification, which the accused kept in his pocket. On the signal of the complainant, the trap party came near the accused. The notes were recovered from the pocket of the accused and on treating of his hand with sodium carbonate solution it turned pink. On that basis, other investigations were also carried out. FIR was registered and after completing investigation case was filed against the respondent which came up for disposal before the Special Judge. Charges were framed though denied by the accused. Before filing the challan sanction was also obtained.

The defence of the respondent/accused was of total denial and that Patwari Parmanand Patil and Narendra had previous enmity with the respondent/accused. They were related to complainant Kailashchandra. It was also his case that he had lodged a report against Balakdas, brother of complainant u/s 353 of the Indian Penal Code, which was also a reason for his false involvement in this case. It was also submitted that the respondent/accused was not to do anything with respect to the work of the complainant, and thus there was no reason for the complainant to deliver illegal gratification to the accused.

After recording evidence of the prosecution comprising of 13 witnesses including the complainant who appeared as P.W. 2, the Special Judge after scanning the evidence which was brought on record and came to the conclusion that the prosecution failed to prove their case without reasonable doubt and has acquitted the accused/respondent. He has given various reasons in support of his decision.

It has been observed that the panch witnesses, namely Pradeep Kumar (P.W. 1) and Arun Kumar Laharia (P.W. 1) have not supported the story of prosecution. In as much as they have deposed having not seen the complainant handing over the illegal gratification to the respondent/accused and were also not able to hear demand if any made by the accused from the complainant. This fact, is also corroborated by the complainant in Paragraph 41 of his statement. Moreover, according to Mohan Singh (P.W. 11), even though members of the trap party were standing near the house of the accused/respondent, they are neither the witnesses of demand nor of the acceptance of illegal gratification. Even though, P.W. 11 says that he heard the discussion between the complainant and the accused, but the witness Pradeep Kumar and Arun Kumar Laharia, as stated above, have contradicted P.W. 11 and thus, the Trial Court concluded that the entire case of the prosecution was based upon the sole testimony of Kailashchandra Bairagi, the complainant only which for other reasons discussed hereinafter as not trustworthy.

The Special Judge further observed that even though as per the statement of the complainant a sum of Rs. 6,000/- was received from the pocket of the respondent/accused and the number of notes tallied with Exh. P-2 and that the hand of the respondent/accused when treated with sodium carbonate solution and then it became pink and that the script (tape-recorded version) about the discussion had between the complainant and the accused was prepared, in view of the submissions made by the respondent, that the complainant had enmity with him, the aforesaid fact required carefully scrutiny and independent corroboration.

In this regard the Special Judge also observed that the prosecution has failed to prove that the respondent/accused agreed to receive illegal gratification for specific job to be done for the complainant in as much as in the present case, nothing was to be done by the respondent/accused for carrying out any work of the complainant. This has been discussed by the learned Sessions Judge in Paragraphs 14 and 15 of the judgment which are reproduced for the sake of reference :--

The Sessions Judge has also discussed the evidence about demand of illegal gratification by the respondent/accused from the complainant. It is observed that as per the complainant, the demand was made by the respondent/accused from his son Hanumandas Bairagi who appeared as P.W. 3 and has deposed that on 24-6-1999, when he was at his house, the respondent/accused called him and asked for a sum of Rs. 1,500 each. In Paragraph 4 of his statement he stated that at that time the other co-owners of the land were not with him. He also stated that the aforesaid demand was made by taking him aside. No other witness were aware of any such demand. However, in Paragraph 3 of his deposition he stated that Rajkumari, Savitribai and Omprakash were present at that time, who are the other shareholders of the land and whose names were also to be mutated. However, none of them was produced as witnesses to support the case of prosecution. There were contradictions in his statement made in Court and as made to the police.

Learned Special Judge also found the story of illegal gratification by the respondent/accused from the complainant as doubtful, inasmuch as, Kailashchandra Bairagi (P.W. 2) in Paragraph 18 of his deposition stated, that at the time when measurement of the land was made, 10-15 persons were present on 24-6-1999 and at that time, the respondent/accused asked for the money. None of those 15 persons has come in the witness box. In Para 33 of his depositions he also stated about informing other co-owners about the demand who as stated above have not come forward to corroborate the police version.

The statement of the complainant with respect to demand of money by the respondent/accused at his house has also been found doubtful, inasmuch as, while in Paragraph 3 of his examination-in-chief he stated that on 25-6-1999 he had gone to the house of the respondent/accused where discussion about the money took place between him and the accuse, in Paragraph 21 he stated that:--

But, this fact was not stated in Exhs. P-1 and P-2. Even in his statement made to the police (Exh. D-2) there is no such discussion.

In Paragraph 24 of his statement, the complainant admits that he had no work with the respondent, but his work was with Naib Tehsildar Shri Tarafdar. Thus, the Court has concluded that once the complainant had no work with the respondent/accused and the work was to be done by Naib Tehsildar, the question of paying any illegal gratification to the respondent does not arise.

The Trial Court has also considered the veracity of the tape recorded version in the light of the judgment of the Hon''ble Supreme Court in Ram Singh and Others Vs. Ram Singh, . It has been observed, that no person could identify the statement of the voice of the accused or the complainant or associated with the recording of the discussion had between the complainant and the accused. There was also no evidence that after the discussion, which the complainant had with the respondent/accused, tape was not opened.

In this regard Paragraphs 22 and 23 of the judgment arc reproduced hereunder:--

The Special Judge also discussed the defence of enmity in Paragraph 25 of the judgment. There is also cross-examination of the complainant in Para 11, where he has accepted the factum of allotting land to Dhakkad Samaj in Village Panchayat Rajaud as Secretary and that in this regard, a complaint was also made against him. Further in Paragraph 13, he also admits that the land allotted to Sitabai w/o Parmanand Patil, a complaint was made by Patwari Narendra Dwivedi, who became Patwari after Rafique. Learned Trial Court also taken a specific note regarding previous enmity between him on one hand and Narendra Dwivedi Patwari and Rafique on the other hand. Copies of the complainants have been filed in his statement u/s 313, Cr.P.C.

Paragraph 26 of the judgment is also reproduced hereunder:--

In these circumstances, when there was a defence available to the accused, and the only witness to prove the illegal gratification was the complainant himself, who had reasons to foist a false case against the accused, the veracity of that person became doubtful and this is a reason the learned Special Judge in having not accepted his testimony. This is also relevant from the point of view that even with respect to the payment of the illegal gratification, there is lot of infirmities in the statement of the complainant, inasmuch as, in Paragraph 35 the complainant says that he paid the money to the accused in the veranda, whereas in Exh. D-1, i.e., the statement made to the Police he stated that the money was paid inside the house and that the same was kept by Rafique after counting in his pocket. According to Radheshyam he was not with the complainant at the relevant time whereas the complainant says that at the time when the money was paid Radheshyam was also standing.

In these circumstances, the testimony of the complainant was rightly not accepted by the learned Sessions Judge. The reasons given by the learned Sessions Judge are flowing from the records. It is also well settled that the testimony of the complainant has to be examined more carefully as he also stands in the same footings, as the accused stand in a trap case.

It is also well settled that if the two views are possible, one which favours the accused, must be accepted while appreciating the evidence in an appeal filed against the judgment of acquittal. Consequently, there is no reason to interfere with the judgment of the learned Special Judge. The appeal filed by the appellant is, thus, dismissed.