(1) Cr.A.No.1841/1999
HIGH COURT OF MADHYA PRADESH: JABALPUR
(AFR)
Division Bench: Hon'ble Justice Shri Rakesh Saksena
Hon'ble Justice Shri M.A.Siddiqui
CRIMINAL APPEAL NO.1841/1999
Charanlal son of Nathulal Durve aged
39 years, resident of village Matiya Doh,
Police Station Lavadhodhari
District Chhindwara (M.P.)
.......Appellant
-Versus-
State of Madhya Pradesh
through Police Station Mohkhed,
District Chhindwara (M.P.)
.......Respondent
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For the Appellant: Shri Vivek Shukla, Advocate.
For the State: Shri S.K.Rai, Government Advocate.
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Date of hearing: 13/09/2011
Date of Judgment: 21/09/2011
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JUDGMENT
Per: Rakesh Saksena,J.
Appellant has filed this appeal against the judgment
dated 07.07.1999 passed by Special Judge (Prevention of
Corruption Act), Chhindwara in Special Case No.4/92 convicting
the appellant under sections 7 and 13(1)(d) read with 13(2) of the
Prevention of Corruption Act, 1988 and sentencing him to
rigorous imprisonment for one year with fine of Rs.500/- on each
count, respectively. Sentences of imprisonment on both counts
concurrent.
2. The accusation against the appellant is that on
26.7.1990, he as a public servant being Patwari of village
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Khunajhirkhurd, demanded and accepted Rs.500/- by way of
illegal gratification from complainant Sabba for providing him
Pavti of his agricultural land.
3. According to prosecution, M.V.Bhandare, S.D.O.
Police, Chhindwara on 26.7.1990 received an application from
Joint Collector/Vigilance Officer, Chhindwara namely Manish
Shrivastava wherein complainant Sabba had made a written
complaint to Collector, Chhindwara that Patwari Charanlal
Dhurve was demanding Rs.1000/- for making mutation of his land
and giving Pavti in respect to it. According to complainant, about
a year back, he had purchased four acres and 26 decimal
agricultural land through registered sale deed from Manak Gabli.
On the basis of the said registry when he approached to Patwari
for obtaining Pavti, he demanded Rs.1000/-. He agreed for the
payment of said money in instalments of Rs.500/-. It was agreed
that first instalment of Rs.500/- would be paid on 26.7.1990 at his
residence. Since he wanted Patwari to be caught taking bribe, he
submitted the said application to Collector which was marked to
Joint Collector Manish Shrivastava. On the said complaint,
Manish Shrivastava, R.S.Thakur, Deputy Collector, M.S. Verma,
SDO (P), Chhindwara, Arvind Kumar Shukla and Sopchand
planned a trap. They obtained five currency notes of Rs.100/-
each from the complainant, M.V.Bhandare and Manish
Shrivastava made their initials on the notes and prepared a
panchnama recording the numbers of the aforesaid notes. They
handed over these notes to complainant and asked him to go with
Sopchand to the house of accused and deliver the same to him.
He was also instructed to give a signal when the said money was
(3) Cr.A.No.1841/1999
accepted by the accused. Complainant and Sopchand went at the
house of accused and other members of the trap party followed
them. Complainant went in the house of accused and after two
minutes came out and gave prefixed signal to the trap party.
Immediately the members of the trap party went in the house of
accused and caught him. Accused informed them that the money
received by him was kept by him in his polythene bag on the
other side of partition of the room. Aforesaid currency notes of
Rs.500/- were recovered from the polythene bag and immediately
memorandum Ex.P/9 and Ex.P/10 were prepared. Sanshodhan
Panji and sale deed were also seized. Numbers of currency notes
tallied with the numbers recorded in memorandum.
4. After the trap, report Ex.P/7 was recorded by SDO(P)
M.V.Bhandare. The said report was then sent to police station
Mohkhed where Crime No.151/1990 under section 3(1&2) was
registered. After investigation, sanction for prosecution Ex.P/8
was obtained and the case was put up for trial in the Court of
Special Judge.
5. On charges being framed, accused abjured his guilt
and pleaded false implication. According to him, he did not
accept any money as bribe. He also examined Teekaram (DW-1)
in his defence. As per the statement of accused under section 313
Cr.P.C., complainant concocted the story of demand of bribe on
the move of Munna @ Arvind Shukla who was inimical to him.
The reason for delay in making Pavti was that Teekaram had
made objection for the mutation of the name of complainant.
Since the competent authority did not allow the amendment of
the name, the name of complainant’s father was not mutated in
(4) Cr.A.No.1841/1999
the revenue record and no Rin Pustika could be prepared. He
examined Teekaram (DW-1) in his defence.
6. Prosecution examined complainant Sabba @
Sobharam (PW-1), Sopchand (PW-2), jeweller Pradhuyuman
Kumar (PW-3), patwari G.R.Deshmukh (PW-4), head constable
Sukhram (PW-5), Girvar Singh (PW-6), head constable Shankerlal
(PW-7), S.D.O Prabhat Kumar Shrivastava (PW-8), S.D.O(P)
M.S.Verma (PW-9), Deputy Collector Manish Shrivastava (PW-10)
and Land Acquisition Officer Officer R.S.Thakur (PW-11) to prove
its case. Learned Special Judge relying on the evidence adduced
by the prosecution held the appellant guilty, convicted and
sentenced him as mentioned above.
7. Learned counsel for the appellant submitted that
appellant was falsely implicated by the complainant in
connivance with Arvind Shukla who was inimical towards him.
From beginning to end, it was Arvind Shukla who advised and
supported the complainant. Evidence of complainant was
discrepant and contradictory to other witnesses. Evidence of
other prosecution witnesses namely S.D.O.(P) M.S.Verma (PW-9),
Deputy Collector Manish Shrivastava (PW-10) and R.S.Thakur
(PW-11) was also unreliable and they did not take any precaution
to rule out the possibility of planting of the money in the room of
accused. Before initiating the trap, none of the witnesses gave his
personal search. Main investigating officer M.V.Bhandare was
not examined in the Court. The learned Special Judge
misappreciated the evidence on record and committed error in
holding the appellant guilty of the charges. On the other hand,
learned counsel for the State submitted that the evidence of
(5) Cr.A.No.1841/1999
prosecution witnesses was trustworthy and reliable. Finding of
conviction of the appellant recorded by the trial Court was
justified and no interference was called for in the impugned
judgment of conviction.
8. We have heard the learned counsel for the parties and
perused the evidence and material on record.
9. Complainant Sabba (PW-1) deposed that his father
Godelal had purchased the land from Manak. He wanted the
name of his father entered in the revenue record, therefore, he
handed over the sale deed to accused/Patwari and asked him to
record the name of his father by next day. After 2-4 days, when
he contacted accused, he demanded Rs.1000/-. He then
contacted one Arvind Shukla. Arvind Shukla took him to some
officers and made him to put thumb impressions on some papers.
He asked him to give Rs.500/- for handing over to accused, so he
managed the said money by pledging his silver ornaments. Three
officers made their initials on the currency notes and asked him
to come next day. In the next morning, he along with Arvind
Shukla and other officers went to village Khunajhir. Officers gave
him the same currency notes of Rs.500/- and asked him to
handover the said notes to accused and give signal to them. He
along with Sopchand (PW-2) then went to the house of accused
and after giving him aforesaid currency notes gave signal to the
members of the trap party. Officers reached at the house of
accused and searched him. The money was not found on the
person of accused, instead the money was found kept in a bag
hanging inside the room. The notes were taken out from the bag
and were seized. All the persons along with accused were carried
(6) Cr.A.No.1841/1999
to Chhindwara. This witness clearly stated that when the money
was not found in the clothes of accused, the house of accused
was searched. As soon as officers entered the house of
accused,he had come out of the house, therefore, he did not
know what transpired inside the house of accused. The evidence
of this witness appears discrepant. He admitted that Arvind
Shukla had taken him to the office of Collector where he was
asked to put his thumb impression on papers. After the trap when
he reached back to Chhindwara again his thumb impressions
were taken on number of papers. According to him, he did not
remember whether there had been any Likha-Padhi at the house
of accused, but when he returned to Chhindwara his thumb
impressions were obtained.
10. Complainant (PW-1) deposed that the sale deed in
favour of his father was executed in the year 1986. After elapse
of about 3 years, gave sale deed to accused for entering the name
of his father. He admitted that he never made any complaint
about the demand made by the accused to any Revenue Inspector
or Tehsildar instead he contacted Arvind Shukla. He admitted
that Teekaram (DW-1) told that the land which was purchased by
his father belonged to his share. He did not know whether
Teekaram made any objection about the entry of their names in
the record. He, however, admitted that because of the said sale
deed Teekaram stopped them from passing through his field.
11. Learned counsel for the appellant submitted that the
whole episode of trap was managed by Arvind Shukla, but
deliberately he was not examined as a witness in the Court. In
para 17 of his deposition, complainant (PW-1) stated that when
(7) Cr.A.No.1841/1999
he along with Arvind Shukla went to the office of Collector, he
did not give any application but his thumb impressions were
obtained on several papers. He put his thumb impression on
being asked by the officer who talked to Arvind Shukla. He did
not know what was written on those papers. He kept on sitting
outside the office and Arvind Shukla talked to officer inside the
room.
12. According to complainant, for the first time when he
contacted accused he demanded Rs.1000/- but later on he
demanded Rs.2000/-. In para 22, he stated that he neither gave
written application in the office of Collector complaining that
accused demanded Rs.1000/- from him nor he told that he
wanted accused to be caught red handed.
13. As far as the demand of bribe by the accused is
concerned, complainant (PW-1) is said to have informed about it
to Arvind Shukla, but Arvind Shukla was not examined in the
Court. Though Sopchand (PW-2) who was examined by the
prosecution as a shadow witness, happened to be the friend of
complainant, but even he did not say that complainant told to him
about the alleged demand by the accused. Joint Collector Manish
Shrivastava (PW-10) though stated that complainant told to him
that accused demanded bribe from him and that he gave an
application to Collector for the trap of accused, but the
complainant denied of having given any application to Collector.
According to him, Arvind Shukla and other officers obtained his
thumb impressions on papers, but neither anybody inquired from
him nor he inquired anything from them. No application/
complaint allegedly made by the complainant (PW-1) was proved
(8) Cr.A.No.1841/1999
in the Court. First Information Report Ex.P/7 was recorded by
M.V.Bhandare, SDO(P) Chhindwara, but M.V.Bhandare was not
examined in the Court. Though it was mentioned in Ex.P/7 that
an application marked by Collector Chhindwara was handed over
to him by Joint Collector Manish Shrivastava, but no such
document was produced in the Court. Thus, except the
uncorroborated evidence of complainant (PW-1) there appeared
no other evidence to assure that accused made a demand of bribe
from him. In view of the fact that everything was managed by
Arvind Shukla, who was not on good terms with the accused, the
sole uncorroborated evidence of complainant about the demand
of bribe by the accused, in our opinion, does not inspire
confidence.
14. In respect to the trap proceeding and acceptance of
bribe money by the accused, it has to be noted that no scientific
method by using phenolphthalein powder was adopted. Had the
currency notes, which allegedly were to be delivered to accused
by way of bribe, been treated by the phenolphthalein powder,
there could have been further assurance that accused accepted
the money voluntarily or had conscious possession of bribe
money. A cursory explanation by SDO(P) M.S.Verma (PW-9) that
since phenolphthalein powder was not available at that time, it
was not applied on the notes, cannot be held to be satisfactory or
reliable. Apex Court in Khilli Ram Vs. State of Rajasthan –
(1985) 1 SCC 28 observed that “Ordinarily in cases of this type
the powder treatment is made. There is no material at all on
record to explain why such a process was not followed in the
instant case even though detection is alleged to have been
(9) Cr.A.No.1841/1999
handled by experienced people of Anti-Corruption Department. It
has been in vogue for well over three decades now. If such
powder treatment had been made, the passing of the bribe would
not have been difficult to be proved. Without powder treatment,
for the absence of which no explanation has been advanced in
this case, and in view of an overall assessment of the matter
which indicates that the story advanced by the prosecution is not
true and the defence version seems to be more probable, the
prosecution story becomes liable to be rejected.” In Ganga
Kumar Srivastava Vs. State of Bihar – (2005) 6 SCC 211,
Apex Court with approval quoted the observations made by it in
Raghbir Singh Vs. State of Punjab -(1976) 1 SCC 145 as follows:
“We may take this opportunity of pointing out that it would be
desirable if in cases of this kind where a trap is laid for a public
servant, the marked currency notes, which are used for the
purpose of trap, are treated with phenolphthalein powder so that
the handling of such marked currency notes by the public servant
can be detected by chemical process and the court does not have
to depend on oral evidence which is sometimes of a dubious
character for the purpose of deciding the fate of the public
servant.”
15. In these circumstances, when we examine the
evidence on record, we find that complainant (PW-1) along with
Sopchand went to the house of accused, gave him currency notes
of Rs.500/- and gave signal to the trap party. Officers of the trap
party reached there and searched the clothes of accused, but the
notes were not found in his clothes. The money was found kept in
a polythene bag. The notes were taken out of the bag and seized.
(10) Cr.A.No.1841/1999
The bag was found hanging inside the room. When officers
entered the house of accused, PW-1 went out, therefore, he did
not know what transpired inside the room. He did not remember
whether there had been any Likha-Padhi at the house of accused,
but, as stated by him, he was made to put his thumb impressions
on some papers in police station, Chhindwara. Immediately after
the recovery of money, he and accused were carried from village
Khunajhir to Chhindwara. PW-1 stated that at the time when he
gave money to accused, Girwar (PW-6) was present. When he
asked accused to take money and to do his work, he took money
after going behind the partition where the bag was hanging.
Shadow witness Sopchand did not go inside the room and
remained standing outside. He admitted that he had good
relations with accused. He frequently visited his house. Accused
lived alone, none of his family members lived with him. He also
disclosed that there had been a quarrel between Teekaram and
Arvind Shukla. Arvind Shukla wanted that accused should get the
house of Teekaram demolished but accused did not yield to his
demand, therefore, Arvind Shukla was annoyed with accused.
16. Learned counsel for the appellant, in this background,
submitted that the possibility that in connivance with Arvind
Shukla, complainant planted the marked currency notes in the
house of accused could not be ruled out. He also pointed out from
paragraph 27 of the evidence of PW-1 that when officers of the
trap party went in the house of accused and inquired about the
money, accused expressed his ignorance, then they searched the
room, but the accused kept on standing there unmoved. The
officers went behind the partition and recovered marked money
(11) Cr.A.No.1841/1999
from the polythene bag after about 10-20 minutes. He further
admitted that the officers who searched the house of accused did
not give their personal search to anybody.
17. Sopchand (PW-2) stated that though he went with
complainant (PW-1) but remained standing near the door of the
house of accused. He saw accused taking money from the
complainant but he did not see where he kept the money. Since
he remained out of the house, he did not know whether there was
any Likha-Padhi at the house of accused. Evidence of Sopchand
(PW-2) seems suspicious in view of the evidence of complainant
that he gave money to accused behind the partition whereas
according to Sopchand he saw complainant giving money to
accused from outside of the door of the house. Sopchand stated
that after complainant gave signal, officers of the trap party
entered the room of accused and he and complainant remained
outside the house. He did not know what they did inside the
room. One of the officers, who was searching the room, told that
the money was found in the polythene bag. Sopchand (PW-2)
was confronted with his police statement Ex.D/4 wherein he
stated that complainant gave Rs.500/- to accused and accused
put that money in the polythene bag hanging on the wall of the
room. According to him, when officer came out of the house of
accused, the polythene bag was in his hand. Thereafter they all
went to Chhindwara. There was no Likha-Padhi at the house of
accused. In view of the discrepant evidence of this witness, in our
opinion, no reliance can be placed on him.
18. Evidence of SDO(P) M.S. Verma (PW-9) also appears
contradictory to the evidence of Complainant (PW-1) and
(12) Cr.A.No.1841/1999
Sopchand (PW-2). This witness stated that as soon as they
received signal from complainant, they reached into the house of
accused. When SDO(P) Bhandare inquired from accused as to
where he kept bribe money received from the complainant,
accused told that he put money in the polythene bag. None of the
other witnesses stated that accused told to the members of trap
party that he put money in the polythene bag. According to him,
seizure memo Ex.P/10 was drawn at the spot whereas
complainant (PW-1) and Sopchand (PW-2) categorically stated
that no Likha-Padhi was done at the place of incident. He though
stated that before entering in the house of accused, members of
trap party gave their search to accused, but no memorandum in
that regard was drawn. In these circumstances, it cannot be
accepted that members of the trap party gave their search before
proceeding for trap.
19. Evidence of Joint Collector Manish Shrivastava
(PW-10), who played prominent role in the trap proceeding, also
appears suspicious. He stated that it was not possible for him to
say when trap party reached at the house of accused after
receiving the signal from the complainant and in which room the
accused was present. He did not remember whether accused was
alone in the house or other persons were present there. He did
not remember who caught the accused and searched him. It is
also important to note that this witness stated that the money
was found in the bag of accused which was kept beside him. He
firmly stated that money was recovered from the polythene bag,
but he denied that the bag was in another room. According to
him, bag was with the accused. Apparently the evidence of this
(13) Cr.A.No.1841/1999
witness runs counter to the evidence of complainant and other
witnesses. Similar is the position of Deputy Collector R.S.Thakur
(PW-11) who though stated that bribe money was seized from
the accused, but he did not know who found that money.
M.V.Bhandare and Manish Shrivastava searched and inquired
about the money but he only remained standing. He did not know
how many rooms were there in the house of Patwari. The money
was recovered from the polythene bag which was hanging on a
pole inside the room. There was no partition in the room of
accused. Initially this witness stated that the seizure
memorandum was recorded in the house of accused but later he
disclosed that memorandum was recorded in the office of
Collector.
20. In view of the above contradictory and discrepant
versions given by the prosecution witnesses, in our opinion, it
cannot be held with certainty that accused voluntarily
accepted/obtained marked money from the complainant. The
possibility that everything was managed by Arvind Shukla and
the money was planted in the house of accused cannot be ruled
out. The best possible evidence about the acceptance of bribe
money by the accused could have been made available by the use
of phenolphthalein powder, but the same was not used. Number
of persons including Arvind Shukla appeared to have entered the
house of accused. In these dubious circumstances, it cannot be
held that prosecution established the fact of demand and
acceptance of bribe money by the accused beyond a reasonable
doubt. We are of the view that learned Special Judge did not
appreciate the evidence on record in correct perspective.
(14) Cr.A.No.1841/1999
21. After an overall assessment of the matter, it appears
that the story advanced by the prosecution is not true and the
defence version seems probable. In these circumstances, the
impugned judgment of conviction of appellant under sections 7
and 13(1)(d) read with 13(2) of the Prevention of Corruption Act
and the sentence awarded to him is set aside. He is acquitted.
His bail bond and surety bond are discharged.
22. Appeal allowed.
(Rakesh Saksena) (M.A.Siddiqui)
Judge Judge
b