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Sanjay Kumar vs Central Bureau Of Investigation on 8 December, 2009

Madhya Pradesh High Court
Sanjay Kumar vs Central Bureau Of Investigation on 8 December, 2009
                                                                                    AFR




        HIGH COURT OF MADHYA PRADESH: JABALPUR

Division Bench: Hon'ble Shri Justice Rakesh Saksena
                Hon'ble Shri Justice S.A.Naqvi


                       CRIMINAL APPEAL NO. 1397/2005


        Sanjay Kumar, presently
        aged about 35 years, S/o
        Bhola Prasad, presently
        Working as Sr.Personnel
        Officer, Rajendra Underground
        Mines, South Eastern Coalfield Ltd.
        Sohagpur Area, presently
        Residing at C-14, Sanjay Nagar,
        Dhanpuri, District Anuppur M.P.
                                                                                  .......Appellant

                          -Versus-

        State of Madhya Pradesh
        through Superintendent of Police,
        Central Bureau of Investigation,
        Special Area Establishment, Anti-
        Corruption Branch, District
        Jabalpur M.P.
                                                                              ........Respondent


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For the appellant: Shri Anil Khare with Shri Som Mishra, Advocates.
       For the respondent: Shri Jayant Nikhra, Advocate.
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                                   Date of hearing : 12.11.2009
                                   Date of Judgment: 08.12.2009


                                       JUDGMENT

Per Rakesh Saksena, J.

Appellant has filed this appeal against the judgment

dated 4th July,2005 passed by Special Judge (C.B.I.), Jabalpur in

Special Case No.4/2003 convicting him under section 7 and section

13(1)(d) read with section 13(2) of the Prevention of Corruption Act,

1988 and sentencing him to rigorous imprisonment for one year with

fine of Rs.1000/- and rigorous imprisonment for two years with fine
Cr.A.1397/2005
(2)

of Rs.2000/- on each count respectively. Both the sentences have

been directed to run concurrently.

2. Prosecution case is that on 29.10.2002,

accused/appellant was working as Personnel Officer in Amlai Open

Cast Mines (in short OCM), South Eastern Coalfield Limited (in short

SECL), Sohagpur Area. It is said that accused demanded Rs.3000/-

as bribe from complainant Pradeep Kumar Shukla (PW5) for issuing

Labour Payment Certificate (hereinafter referred to as LPC) for the

payment of wages of security guards of Maruti Security and

Personnel Services (hereinafter referred to as MSPS) for the month

of June, 2002. MSPS was a security agency, which had entered into a

contract with SECL since the year 2001 for security of the property

of SECL. For payment of wages to security guards and other

employees of MSPS, a certificate about the payment of wages of the

labours was required to be issued by an officer of SECL for

certification that the wages of employees were being paid as per the

requirement and that just payment was received by the security

guards of MSPS. It is said that accused was required to issue the

LPC to MSPS for the payment of wages of the month of June 2002.

Pradeep Kumar Shukla (PW5) was working as security supervisor in

MSPS and was representing it for the purpose of obtaining the

labour payment bills of security guards of MSPS of Sohagpur Area of

SECL. On 29.10.2002, when Inspector of CBI, Jabalpur Shri

S.M.S.Chouhan (PW10) was camping at Shahdol, Pradeep Kumar

Shukla (PW5) submitted a written complaint (Ex.P/5) to him stating

that accused Sanjay Kumar was demanding Rs.3000/- for issuing the

LPC for the month of May, 2002 without which the payment of wages

for the month of June 2002 of the security guards of MSPS was held

up. On the basis of aforesaid complaint (Ex.P/5), Inspector
Cr.A.1397/2005
(3)

S.M.S.Chouhan (PW10) started investigation. He decided to lay a

trap on Sanjay Kumar for catching him red-handed. On 29.10.2002,

he summoned two officers from New India Assurance Company,

Shahdol viz. S.K.Dwivedi (PW2) and Bhupat Kishore (PW3) at Hotel

Surya, Room No.203 at about 4 p.m. where the team of CBI was

staying. S.K.Dwivedi (PW2) was the Development Officer and Bhupat

Kishore (PW3) was Administrative Officer in New India Assurance

Company, Shahdol. When these witnesses reached hotel, they were

introduced to complainant Pradeep Kumar Shukla (PW5). They read

the complaint Ex.P/5 made by Pradeep Kumar Shukla and after

verifying the authenticity of the complaint, signed on it.

3. Demonstration of pre-trap proceedings was done and

Pradeep Kumar Shukla was asked to give the currency notes, which

were to be delivered to accused by way of bribe. He handed over 30

notes of denomination of Rs.100/-, totalling Rs.3000/-. Numbers of

the notes were recorded in pre-trap memorandum Ex.P/6;

phenolphthalein powder was applied to the said notes and the notes

were kept in the left pocket of the shirt of Pradeep Kumar Shukla.

Pradeep Kumar Shukla was asked to not to touch these notes unless

they were to be handed over to accused on his demand. S.K.Dwivedi

was directed to accompany Pradeep Kumar Shukla as a shadow

witness and was instructed to hear the talks taking place between

accused and the complainant and to give a signal after the tainted

money was handed over to accused. Bhupat Kishore (PW3) was

instructed to accompany the trap team and to watch the

proceedings.

4. The trap party with Pradeep Kumar Shukla proceeded on

two vehicles for the residence of accused. Accused at that time lived

at Sanjay Nagar, Amlai Zet hostel Room No.12. Pradeep Kumar
Cr.A.1397/2005
(4)

Shukla and S.K.Dwivedi went to the room of accused and after about

15 minutes, at about 9:30 p.m. S.K.Dwivedi (PW2) came out of the

room and gave signal to the trap party by igniting a cigarette with

matchstick. The members of the CBI team entered Room No.12 of

Sanjay Kumar. Inspector S.M.S.Chouhan (PW10) and another

member of the team caught the wrists of both the hands of Sanjay

Kumar and gave their introduction and informed him that he was

caught for taking bribe of Rs.3000/- from Pradeep Kumar Shukla.

Pradeep Kumar Shukla and S.K.Dwivedi informed that Sanjay Kumar

had kept the notes in the left pocket of his shirt. Bhupat Kishore

(PW3) took out the currency notes from the said pocket and tallied

numbers of the notes with the numbers noted in the pre-trap

memorandum. The notes were seized and sealed in an envelope.

Hands of Sanjay Kumar were washed with sodium carbonate solution

whereby the colour of the solution turned pink. The pocket of the

shirt from which the currency notes were recovered was dipped in

sodium carbonate solution, which gave pink colour. The solution was

sealed and seized shirt was also wrapped in a paper and sealed.

Hands of complainant were also washed with sodium carbonate

solution and solution was sealed in a bottle. After completing the

trap proceedings, Inspector S.M.S.Chouhan (PW10) recorded the

post-trap memorandum Ex.P/7 which was signed by the members of

the trap party. Some documents were seized from the office of SECL,

OCM vide seizure memo Ex.P/9. FIR of the incident Ex.P/20 was

recorded and investigation of the case was conducted by Paneer

Salwam, CBI Inspector (PW9). He recorded the statements of

witnesses and collected the relevant documents and obtained the

sanction from Naresh Kumar Sharma (PW4), Chief Managing

Director. Reports of Central Forensic Science Laboratory, New Delhi
Cr.A.1397/2005
(5)

(in short CFSL) in respect of seized solutions were received. Though

presence of phenolphthalein in the solution was found positive in

other solution, but in Ex.-E the solution obtained after washing the

pocket of the shirt of accused did not show the presence of

phenolphthalein. After investigation, charge sheet was filed.

5. Accused abjured his guilt and pleaded false implication.

He filed his statement under section 233(2) of the Code of Criminal

Procedure stating that the whole episode was concocted by the

officers of MSPS on false grounds. According to him, he never

demanded money from Pradeep Kumar Shukla for issuing LPC after

the month of April 2002. There was no ground for him to issue LPC

as from that time payment of the labours was being made through

the Bank for which LPC was not required. The requirement of grant

of LPC was for verification that the employees of MSPS were being

paid their wages, but since from April 2002 the employees of MSPS

were being paid through Bank, there was no justifiable ground for

issuing LPC.

6. Prosecution, to substantiate its case examined ten

witnesses viz. Lal Singh (PW1), S.K.Dwivedi (PW2), Bhupat Kishore

(PW3), Naresh Kumar Sharma (PW4), Pradeep Kumar Shukla (PW5),

Yogendra Tiwari (PW6), Avinash Sarkar (PW7), Barmeshwar Singh

(PW8), Paneer Salwam (PW9) and S.M.S.Chouhan (PW10). Accused

also in his defence examined two witnesses viz. Sanjay Amte (DW1),

Manager of Hotel Surya, Shahdol and Lakhwinder Singh (DW2), an

employee of MSPS. Complainant Pradeep Kumar Shukla (PW5) did

not support the prosecution case by denying the demand of money

by the accused. However, learned trial Court relying on the evidence

of other prosecution witnesses held the accused guilty and convicted

and sentenced him as mentioned above.

Cr.A.1397/2005
(6)

7. Shri Anil Khare, learned counsel for the appellant,

contended that accused/appellant was falsely implicated in the case.

The case was concocted at the instance of officials of MSPS. There

was no occasion for demand of any money from complainant Pradeep

Kumar Shukla for issuance of LPC, as from April 2002 labour

payment of MSPS was being made through the Bank. The officers of

MSPS had made four complaints to CBI against the officers of SECL.

In all the aforesaid complaints, the alleged amount of bribe was said

to be Rs.3000/-. All the said complaints were made at Surya Hotel on

29.10.2002. He contended that it was not established from the

evidence of prosecution witnesses that any demand was made by the

accused. The evidence of the prosecution witnesses in that regard

was inconsistent, discrepant and contradictory. Complainant

Pradeep Kumar Shukla (PW5) himself did not say that any demand

was made by the accused. Almost all the prosecution witnesses

including the complainant admitted that at the relevant time no LPC

was required to be issued since payment of wages of the employees

of MSPS was being made through Bank since June 2002. He further

contended that trap witnesses viz. S.K.Dwivedi (PW2) and Bhupat

Kishore (PW3) were not independent witnesses. Their evidence was

inconsistent and contradictory. At the time of passing of the alleged

money, S.K.Dwivedi (PW2) had already left the room where the

transaction is said to have taken place. He further contended that

from the report of CFSL, it was clear that the pocket of the shirt of

accused in which the tainted currency notes were allegedly kept did

not contain traces of phenolphthalein. The evidence of sending the

shirt again for test of phenolphthalein was suspicious. There was no

evidence on record to indicate that the said seized shirt of accused

was kept intact. The seal by which the shirt was sealed in the packet
Cr.A.1397/2005
(7)

was not handed over to any independent person to rule out the

possibility of tampering. The explanation given by the accused was

probable and reliable and was substantiated by the prosecution

witnesses itself apart from the evidence of defence witnesses. On the

contrary, Shri Jayant Nikhra, learned counsel for CBI, contended

that the evidence of prosecution witnesses was reliable and

sufficient to bring home the accusation against the accused.

Complainant Pradeep Kumar Shukla (PW5) did not support the

prosecution case because he had been sacked from the job. There

was evidence on record to indicate that LPC was required to be

issued for the month of May 2002. He contended that the evidence of

S.K.Dwivedi (PW2) and Bhupat Kishore (PW3), who were

independent witnesses, was trustworthy. It was established from the

report of CFSL that the tainted currency notes were accepted by the

accused and kept in the pocket. There was nothing on record to

indicate that the shirt of accused was tampered with by anybody. He

contended that even if the complainant did not support the

prosecution case, the accused could be convicted if the offence was

proved by other evidence on record. He justified the finding of

conviction recorded by the trial Court.

8. We heard the learned counsel of both the sides at length

and perused the impugned judgment and the evidence and material

on record carefully.

9. It is not disputed by the appellant that he was working as

Senior Personnel Officer in OCM of South Eastern Coalfield Limited,

Sohagpur Area and was a public servant.

10. Learned counsel for the appellant argued that the

prosecution failed to prove that the appellant had an opportunity to

make demand of bribe from the complainant. Since the LPC was not
Cr.A.1397/2005
(8)

required to be issued at the relevant time because the payment of

wages of the employees of MSPS was being made through Bank. It

was necessary to find out if there was any motive for payment of

bribe in the fact situation of the present case.

11. Lal Singh (PW1), who was working as Accountant in

OCM, SECL deposed that he had the file of MSPS containing the bill

of wages (Ex.P/1) pertaining to period 1.6.2002 to 30.6.2002. The

payment voucher of the bill (Ex.P/3) was also in the file. Bill Ex.P/1

was presented to Area Manager of OCM by MSPS on 1.7.2002. It

was received in the Finance Department on 4.8.2002. The value of

the bill was Rs.1,11,103/-. This bill was forwarded to Finance

Manager Avinash Sarkar and was paid as per payment voucher Ex.P/

3. He admitted that since the month of April 2002 the payment of the

wages of the employees of MSPS was being done through the Bank,

therefore, no LPC was required. He categorically stated that he

knew accused Sanjay Kumar since about last 3 years. He was a good

worker and his papers were always found correct.

12. Avinash Sarkar (PW7), Deputy Finance Manager of SECL

explained the necessity of LPC. According to him, the certificate was

required for verification that the payments to labours were being

made correctly. It was a certificate to the effect that the payment of

wages was made before the officer concerned. The certificate was

used to be issued by the personnel officer. At the time of occurrence,

accused Sanjay Kumar was working on the post of personnel officer.

This witness too admitted that LPC was not necessitated after the

direction about the payment through Bank was issued. Referring to

letter Ex.P/15, written by Area Security Officer of SECL, it was

deposed by him that the bill Ex.P/14 was lying with the Accounts

Department for want of LPC for the month of May 2002, however,
Cr.A.1397/2005
(9)

this letter indicated that the payment to the staff/workers engaged

by the concerned agency was being made through Bank from the

month of April 2002, therefore, the payment for the month of June,

2002 may be released and necessary certificate could be submitted

after collecting the required documents for the month of May 2002.

This was done because the concerned agency was pressing hard for

the payment in view of ‘Deepawali’ festival. This gives some

indication that the payment of wages of the concerned agency i.e.

MSPS were being made through the Bank from the month of April

2002. This witness further deposed that in respect of bill Ex.P/14 he

had sought advice from the Finance Department by sending a note

Ex.P/17 as to what should have been done as the LPC from the

month of May, 2002 was not found, whereupon Mr. Barmeshwar

Singh, Deputy Finance Manager had directed him to obtain the LPC

from the concerned officer. In this regard, the evidence of

Barmeshwar Singh (PW8) is also significant. Barmeshwar Singh

(PW8) deposed that he had found the bill correct, therefore, he had

recommended for concurrence for the payment. He deposed that in

the document Ex.P/17, the then Assistant Finance Manager Mr. D.

Chatterjee had directed him to obtain LPC. This direction was

signed by Area Finance Manager Shri D.Chatterjee.

13. Learned counsel for the appellant contended that though

this endorsement was made on Ex.P/17, but the Area Finance

Manager Shri Chatterjee was not examined by the prosecution

before the Court, therefore, this note cannot be made use of for

holding that LPC was required at the relevant time, especially in

view of the fact that Barmeshwar Singh (PW8), Finance Manager in

cross-examination himself admitted that since April, 2002 the

payment of labours was being made through Bank, therefore, no LPC
Cr.A.1397/2005
(10)

was required. He admitted that letter Ex.D/4 dated 14.12.2001 was

issued by Chief General Manager (Personnel and Administration)

that only one time extension for a period of three months for making

payment to Security Personnel of DGR Sponsored Security Agencies

in cash was approved by the competent authority, however, they

were informed that further payment to security personnel engaged

by the Agencies will be made only through Bank by the concerned

Security Agency. This witness deposed that by letter Ex.D/8 dated

2.4.2002, Deputy Chief Personnel Manager, Sohagpur Area had

directed the officers of MSPS that they were allowed one time

extension for three months only in the month of December 2001 and

it was advised them for getting the Bank account opened for all their

employees so that payment of March 2002 payable in April 2002

could be made through Bank but they did not inform the

management whether the same had been opened or not. In the said

circumstances, the management shall be compelled not to allow

them to make payment to their employees in cash and assurance was

sought that the accounts were opened at the earliest so that the

payment of the month of March 2002 could be released to their

employees through Bank. Barmeshwar Singh (PW8) admitted that a

letter Ex.D/9 was written by Chief General Manager, Sohagpur Area

to CMD, SECL, Bilaspur on 8.2.2003 in reference to a petition filed

by MSPS in the High Court. In Ex.D/9, it was indicated by the Chief

General Manager that order to make payment through Bank was

issued in the month of December 2001, which was extended up to

April 2002. In between this, the MSPS adopted all efforts to avoid

Bank payment with no results. They expressed so many problems in

opening the Bank Account, but they reluctantly and half-heartedly

responded and after long persuasion the payment could be made
Cr.A.1397/2005
(11)

through Bank from April 2002. It was also expressed in the said

letter that MSPS Management was so greedy for money that they

assigned the management of the Company to those persons, who

were arrogant and could threaten guards to extract money from

their salary, but due to payment made through Bank, they were not

getting chance and as such they were annoyed and frustrated.

This witness admitted that he heard many times that the officers of

MSPS misbehaved with the officials of SECL.

14. In the light of the evidence of aforesaid witnesses when

we examine the evidence of complainant Pradeep Kumar Shukla

(PW5), it seems that accused Sanjay Kumar refused to give him LPC

because it was not required. He stated that when he met accused for

obtaining LPC, he told him that he would not give LPC because it

was not required and that he had no role for getting his bill paid.

This witness admitted that though he made a complaint to CBI that

Sanjay Kumar was demanding money, but in fact he had not asked

for any money. He admitted that the labour payment for the month

of May 2001 was done by his company through Bank. In para 17 of

his statement, he denied that in the month of October, 2002 accused

asked him that if he wanted to get his bill passed early, he will have

to pay for it. Though the fact that accused did not make any demand

from him was omission in his police statement, yet his categorical

statement before the Court that accused did not ask money from him

casts serious doubt over the prosecution story that he demanded

bribe for issuing LPC.

15. In Jagdish Chandra Makhija Vs. State of Madhya

Pradesh (1990 MPLJ 239), it has been held that in a trap case when

initial part of the story of demand and offer is found to be

untrustworthy, testimony of the complainant cannot be accepted. In
Cr.A.1397/2005
(12)

assessing the evidence of a witness, the background of the

prosecution story should be kept in mind. Where the complainant

seems to have no regard for the truth and admitted that he made a

false complaint under the pressure of his officers, his testimony

cannot be accepted. In cross-examination, complainant admitted

that the officers of his Company had decided that three officers of

SECL viz. S.K.Singh, Ajay Singh and Sanjay Kumar should be

trapped. He was asked to get accused Sanjay Kumar trapped. He

disclosed that while writing the complaint application he told to

Yogendra Tiwari (PW6) that Sanjay Kumar did not make any demand

from him, Yogendra Tiwari (PW6) asked him to write as he

instructed. He admitted that he made the complaint because he

could not disobey the direction of his senior officer. It was Yogendra

Tiwari who had taken him to CBI officers. Complainant admitted

that since in the month of March 2002 the labour payment was

being made through Bank, therefore, LPC was not required.

16. Yogendra Tiwari (PW6), Chief Executive Officer of

MSPS, deposed that in the month of October, 2002 Pradeep Kumar

Shukla informed him that the payment of the bill for the month of

June 2002 was not being made because accused was not issuing LPC

for the month of May 2002 and for issuing the same he was

demanding bribe of Rs.3000/-. According to him, he then advised

Shukla to make a report to CBI. In cross-examination, this witness

was confronted with his police statement Ex.D/3 wherein these facts

were not disclosed by him. In view of these material contradictions,

his evidence does not inspire confidence. Learned counsel for the

CBI argued that even if the complainant did not support the

prosecution case and turned hostile, since he admitted his

signatures on the complaint, the complaint Ex.P/5 proved the
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(13)

demand made by the accused. He further argued that the demand

was also proved by the fact that complainant admitted before

Yogendra Tiwari (PW6), S.K.Dwivedi (PW2) and Bhupat Kishore

(PW3) that accused demanded bribe of Rs.3000/-. We are afraid that

this argument of learned counsel cannot be accepted. Evidence of

S.K.Dwivedi (PW2) and Bhupat Kishore (PW3) that Pradeep Kumar

Shukla admitted before them that accused demanded bribe cannot

be accepted in view of the fact that the complainant himself deposed

that the false complaint was made by him under the pressure of the

officers of his Company. Apart from that the complaint Ex.P/5 cannot

be treated as substantive evidence.

17. In Suresh Kumar Shrivastava Vs. State of Madhya

Pradesh (1994 MPLJ 30), it was held that the complaint cannot be

treated as substantive evidence. It contained only a “former

statement” of the complainant that accused had demanded money

from him for showing favour to him. “Former Statement” could

either be used to corroborate under section 157 of the Evidence Act

of the complainant given in the Court or to contradict his evidence

under section 145 of the Evidence Act. When complainant did not

support the story that demand was made by accused, there was no

substantive evidence or deposition of the witness before the Court, it

would be wrong on the part of the trial Court to base a decision on

what was merely a “former statement” of a witness contained in the

complaint.

18. In view of the above discussion, we feel compelled to

hold that it was not established beyond reasonable doubt that

accused had an occasion to issue LPC that could have given him an

opportunity to make a demand of bribe and to the complainant the

occasion to offer the same.

Cr.A.1397/2005
(14)

19. Learned counsel for the appellant argued that the

evidence of receipt of bribe money by the accused has not been

established beyond the reasonable doubt. Whole episode was

manufactured under conspiracy by the officers of security agency

who entertained grudge against the officers of SECL for various

reasons. The trap was arranged with the connivance of the officers

of CBI who had assembled in hotel Surya at Shahdol. According to

him, the explanation given by accused immediately at the time of

trap and in the written statement submitted by him before the trial

Court that he was falsely implicated under conspiracy was

reasonable and probable under the circumstances of the case.

S.K.Dwivedi (PW2), who was summoned as an independent witness

from New India Insurance Company, deposed that he with Bhupat

Kishore had reached Surya Hotel at 4:00 p.m. where he met CBI

Inspector Chouhan and complainant Pradeep Kumar Shukla. After

verification of the complaint from Pradeep Kumar Shukla, he saw

the demonstration conducted by the CBI Inspector. Under the

instruction of CBI Inspector, he went with Pradeep Kumar Shukla as

a shadow witness to Zet hostel in Sanjay Nagar where accused was

residing. Other members of the trap party stayed at some distance

from the building and he and Pradeep Kumar Shukla went at the

house of accused. Pradeep Kumar Shukla introduced him as his new

incharge. There had been some talks about the pending bills of the

Company. Thereafter accused enquired from Pradeep Kumar Shukla

whether he had brought the money. Pradeep Kumar Shukla took out

the money from his pocket and gave it in the right hand of the

accused who kept it in his left side pocket of the shirt. According to

him, accused assured him that his work shall be done. S.K.Dwivedi

then went out and ignited a cigarette for giving signal to the trap
Cr.A.1397/2005
(15)

party. Trap party came in the room and Inspector S.M.S.Chouhan

caught hold of the hands of accused. According to this witness,

accused uttered that “he committed mistake”. Thereafter Bhupat

Kishore took out money from the pocket of accused. The hands and

the pocket of accused from which the currency notes were taken

out, when washed with sodium carbonate turned pink. Numbers of

the notes also tallied with the numbers of the notes, which had been

given to complaint. Similar facts were deposed by Bhupat Kishore

(PW3), however, he deposed that when CBI officer enquired from

the accused as to where he had kept the bribe money, accused could

say nothing. Bhupat Kishore admitted that he himself had not seen

the complaint delivering money to accused. Both the aforesaid

witnesses stated that the pocket of the shirt of accused was washed

and the pink solution of sodium carbonate was seized. But when we

turn to the evidence to complainant Pradeep Kumar Shukla (PW5),

we find that he deposed that when he and S.K.Dwivedi went in the

room of accused and asked him for passing the bill, accused asked

them to come in the office next day. He took out Rs.3000/- from his

pocket and wanted to give the same to accused but he refused to

accept it. At the time when he offered money to accused,

S.K.Dwivedi left and went out of the room. According to

complainant, when he insisted to give money, accused tried to

return the same and, therefore, he kept the money on the bed and at

that moment CBI team reached there and caught the hands of

accused. Complainant stated that when Inspector Chouhan asked

the accused that he had taken bribe, accused replied that he was

falsely implicated.

20. Learned counsel for the State contended that

complainant Pradeep Kumar Shukla was declared hostile, therefore,
Cr.A.1397/2005
(16)

his evidence was unworthy of reliance. According to him, the

acceptance of bribe money by accused was established by the fact

that hands of the accused and pocket of his shirt contained traces of

phenolphthalein, which was established by Central Forensic Science

Laboratory (CFSL) report. Contrary to it, learned counsel for the

accused contended that the fact that the tainted money was kept in

the pocket by the accused was belied by the result of CFSL test in

respect of the solution of the pocket, as it was found to be negative

for the phenolphthalein test. CFSL report is Ex.P/33. Since for the

first time CFSL report in respect of the solution of the pocket was

found negative, the shirt was again sent for test of presence of

phenolphthalein powder and a fresh report Ex.P/32 was received,

according to which, presence of phenolphthalein was confirmed in

the pocket.

21. Learned counsel for the accused vehemently argued that

the second test report was not reliable. When the solution collected

after washing the pocket of the shirt at the spot did not contain

traces of phenolphthalein, it was highly improbable that the shirt

would still contain the phenolphthalein at later stage. He argued

that though it has been stated by the prosecution witnesses that the

shirt was sealed at the spot, yet there was no evidence on record to

indicate that the shirt was kept in safe custody and the seal with

which it was sealed was also kept in safe custody of any independent

person. The trap was conducted on 29.10.2002 whereas the shirt in

question was received by CFSL on 3.2.2003. He placed reliance on

Mohd. Aman and another vs. State of Rajasthan (AIR 1997 SC 2960)

where, in regard to the period of custody of empty cartridge with the

police, it was held that inordinate delay in sending the same for

examination to ballistic expert raised doubt and gave rise to
Cr.A.1397/2005
(17)

suspicion. There was delay of only 5 days but in those

circumstances, it was held by the Apex Court that there was no

justifiable reason for the delay. In Mahmood Vs. State of Uttar

Pradesh (AIR 1976 SC 69), Apex Court held that after sealing the

parcel of any article, the seal should not remain with the

investigating agency. This principle was also followed by the High

Court of Madhya Pradesh in Vijay Singh Vs. State of Madhya

Pradesh [2004(4) MPLJ 543] and Ganesh @ Ganesha @ Ganesh

Prasad and another Vs. State of Madhya Pradesh [I.L.R. (2008)

M.P.3026].

22. The fact that initially the pocket of the shirt did not give

traces of phenolphthalein and subsequently the phenolphthalein test

gave positive result, in our opinion, throws considerable doubt about

the presence of phenolphthalein in the pocket of accused. This

circumstance militates against the prosecution version that the

accused received the tainted currency notes and kept it in his

pocket. In these circumstances, the evidence of complainant that

accused refused to accept money and, therefore, he kept it on the

bed seems probable. It is also probable that when complainant

insisted and accused refused to accept the bribe money, the hands

of accused might have come in contact of tainted currency notes. In

the above fact situation, the explanation furnished by accused that

the officers of MSPS in connivance with the officers of CBI arranged

a false trap, appears probable.

23. Learned counsel for the accused, referring to the

evidence of Sanjay Amte (DW1), argued that the whole episode was

a frame-up. On 20.10.2002, M.S.Chouhan, C.L.Patel, B.R.Prabhakar

and Vinayak Dubey had come in his hotel Surya at Shahdol. Room

No.201 was took in the name of V.Joshi and in this room 5-6 persons
Cr.A.1397/2005
(18)

had stayed. Lakhvinder Singh (DW2) deposed that he along with his

boss Yogendra Tiwari and Mr. Joshi had reached Surya hotel. Two

persons from CBI who were in civil dress had accompanied them

from Bhopal. Shakeel Ahmad, Advocate who was legal advisor of

Maruti Security Company was also with them. Yogendra Tiwari had

asked Mr.Gautam, Mr. Shukla and Joshi to write three complaints

and had given money. When complainant Pradeep Kumar Shukla

had told that accused had not demanded money, Yogendra Tiwari

had asked him to do what he said. These facts find corroboration

from the evidence of Pradeep Kumar Shukla (PW5) who deposed

that on 29.10.2002 when he had gone to hotel Surya he had met

Finance Manager Vinod Joshi and Devnath Gautam in one room.

Chief Executive Yogendra Tiwari and former manager Lakhvinder

Singh and Shakeel Ahmad were also present. According to him,

officers of the Company had decided to get three persons viz.

S.K.Singh, Ajay Singh and Sanjay Kumar trapped. He was asked to

get Sanjay Kumar trapped though Sanjay Kumar never made any

demand from him. He disclosed that Yogendra Dixit had introduced

him to CBI people.

24. In State of Madhya Pradesh Vs. J.B.Singh [AIR 2000 SC

3562], Supreme Court observed that so far as payment is concerned,

once complainant himself did not support the prosecution case,

there is no material to establish the alleged payment said to have

been made by complainant to the accused pursuant to the alleged

demand. Therefore, all the necessary ingredients of the offence

under section 5(1)(d) of the Prevention of Corruption Act as well as

under section 161,IPC not having established, the order of acquittal

is justified. In Sita Ram Vs. State of Rajasthan [AIR 1975 SC 1432]

Apex Court held that when story of demand of bribe by the accused
Cr.A.1397/2005
(19)

from the complainant was not proved and even the story of payment

of money by the complainant was not established beyond reasonable

doubt, the rule of presumption engrafted in section 4(1) could not be

made use of for convicting the accused. In Suraj Mal Vs. The State

(Delhi Administration) [AIR 1979 SC 1408] , Apex Court held that in

the case of bribery, mere recovery of money divorced from the

circumstances under which it is paid is not sufficient to convict the

accused when the substantive evidence in the case is not reliable. In

Punjabrao Vs. State of Maharashtra [2002 AIR SCW 16], Apex Court

observed “It is too well settled that in a case where the accused

offers an explanation for receipt of the alleged amount, the question

that arises for consideration is whether that explanation can be said

to have been established. It is further clear that the accused is not

required to establish his defence by proving beyond reasonable

doubt as the prosecution, but can establish the same by

preponderance of probability.” Similar view was expressed by the

Apex Court in case of Ganga Kumar Shrivastava Vs. State of Bihar

[(2005) 6 SCC 211].

25. After scanning and analyzing the evidence adduced by

the prosecution, we are unable to hold that prosecution was

successful in establishing beyond reasonable doubt that there was

any occasion for the accused to have demanded bribe from the

complainant for issuing the LPC. It was not proved beyond doubt

that at the relevant time such a certificate was required for payment

of wages of the employees of MSPS, since the payment of wages of

MSPS was already being made through the Bank. Apart from that,

complainant Pradeep Kumar Shukla (PW5) himself did not support

the prosecution version and categorically stated that no demand was

made by the accused. Complaint (Ex.P/5) could not have been
Cr.A.1397/2005
(20)

treated as substantive evidence in the absence of evidence of its

maker. Complainant himself admitted that the complaint Ex.P/5 was

made by him under coercion of the officers of his Company. In view

of his admission, the evidence of other independent witnesses viz.

S.K.Dwivedi (PW2) and Bhupat Kishore (PW3) was rendered of no

use. Apart from the above facts, the fact that for the first time

sodium carbonate solution in which the pocket of the shirt of the

accused was dipped negatived the presence of phenolphthalein,

created doubt about the acceptance of bribe money by the accused.

Besides that, the conduct of CBI Inspector S.M.S.Chouhan (PW10)

seemed to be suspicious. He could not say as to how long he had

stayed in Surya Hotel. He could even not explain whether he was

staying for one day, two days or three days. According to him, no

information was given to people of Shahdol that he was staying at

Shahdol and if anybody wanted he could have contacted him. It is

suspicious that how the complainant approached to him for

arranging trap. Inspector Chouhan even did not inform and obtain

any instruction from the Superintendent of Police, CBI for taking any

action against the accused. These facts clearly smack of some kind

of under hand dealing and connivance with the officers of Maruti

Agency.

26. In view of the discussions made hereinabove, we hold

that the judgment of conviction and sentence passed by the trial

Court is liable to be set aside on the ground that the findings of fact

and appreciation of evidence are vitiated as the evidence adduced by

the prosecution fell short of the test of reliability and acceptability,

and as such, it was not safe to convict the accused/appellant. For the

reasons aforesaid, we set aside the impugned judgment of conviction
Cr.A.1397/2005
(21)

passed by the trial Court and acquit the appellant of the charges

levelled against him.

27. Appeal allowed.

      (Rakesh Saksena)                           (S.A.Naqvi)
           Judge                                    Judge
b
        Cr.A.1397/2005
(22)
 

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