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
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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
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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
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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
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(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.
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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
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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
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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,
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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
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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
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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
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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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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.
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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
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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,
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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
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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
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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
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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
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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
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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
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