{"id":246106,"date":"2009-12-08T00:00:00","date_gmt":"2009-12-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sanjay-kumar-vs-central-bureau-of-investigation-on-8-december-2009"},"modified":"2014-06-09T04:48:28","modified_gmt":"2014-06-08T23:18:28","slug":"sanjay-kumar-vs-central-bureau-of-investigation-on-8-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sanjay-kumar-vs-central-bureau-of-investigation-on-8-december-2009","title":{"rendered":"Sanjay Kumar vs Central Bureau Of Investigation on 8 December, 2009"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Sanjay Kumar vs Central Bureau Of Investigation on 8 December, 2009<\/div>\n
                                                                                    AFR\n\n\n\n\n        HIGH COURT OF MADHYA PRADESH: JABALPUR\n\nDivision Bench: Hon'ble Shri Justice Rakesh Saksena\n                Hon'ble Shri Justice S.A.Naqvi\n\n\n                       CRIMINAL APPEAL NO. 1397\/2005\n\n\n        Sanjay Kumar, presently\n        aged about 35 years, S\/o\n        Bhola Prasad, presently\n        Working as Sr.Personnel\n        Officer, Rajendra Underground\n        Mines, South Eastern Coalfield Ltd.\n        Sohagpur Area, presently\n        Residing at C-14, Sanjay Nagar,\n        Dhanpuri, District Anuppur M.P.\n                                                                                  .......Appellant\n\n                          -Versus-\n\n        State of Madhya Pradesh\n        through Superintendent of Police,\n        Central Bureau of Investigation,\n        Special Area Establishment, Anti-\n        Corruption Branch, District\n        Jabalpur M.P.\n                                                                              ........Respondent\n\n\n--------------------------------------------------------------------------------------------------------\n\nFor the appellant: Shri Anil Khare with Shri Som Mishra, Advocates.\n       For the respondent: Shri Jayant Nikhra, Advocate.\n--------------------------------------------------------------------------------------------------------\n\n                                   Date of hearing : 12.11.2009\n                                   Date of Judgment: 08.12.2009\n\n\n                                       JUDGMENT\n<\/pre>\n
Per Rakesh Saksena, J.\n<\/p>\n
                 Appellant has filed this appeal against the judgment<\/p>\n
dated 4th July,2005 passed by Special Judge (C.B.I.), Jabalpur in<\/p>\n
Special Case No.4\/2003 convicting him under section 7 and section<\/p>\n
13(1)(d) read with section 13(2) of the Prevention of Corruption Act,<\/p>\n
1988 and sentencing him to rigorous imprisonment for one year with<\/p>\n
fine of Rs.1000\/- and rigorous imprisonment for two years with fine
\n                                                                  Cr.A.1397\/2005
\n                                      (2)<\/span><\/p>\n
of Rs.2000\/- on each count respectively. Both the sentences have<\/p>\n
been directed to run concurrently.\n<\/p>\n
2.          Prosecution        case         is   that     on     29.10.2002,<\/p>\n
accused\/appellant was working as Personnel Officer in Amlai Open<\/p>\n
Cast Mines (in short OCM), South Eastern Coalfield Limited (in short<\/p>\n
SECL), Sohagpur Area. It is said that accused demanded Rs.3000\/-<\/p>\n
as bribe from complainant Pradeep Kumar Shukla (PW5) for issuing<\/p>\n
Labour Payment Certificate (hereinafter referred to as LPC) for the<\/p>\n
payment of wages of security guards of Maruti Security and<\/p>\n
Personnel Services (hereinafter referred to as MSPS) for the month<\/p>\n
of June, 2002. MSPS was a security agency, which had entered into a<\/p>\n
contract with SECL since the year 2001 for security of the property<\/p>\n
of SECL. For payment of wages to security guards and other<\/p>\n
employees of MSPS, a certificate about the payment of wages of the<\/p>\n
labours was required to be issued by an officer of SECL for<\/p>\n
certification that the wages of employees were being paid as per the<\/p>\n
requirement and that just payment was received by the security<\/p>\n
guards of MSPS. It is said that accused was required to issue the<\/p>\n
LPC to MSPS for the payment of wages of the month of June 2002.<\/p>\n
Pradeep Kumar Shukla (PW5) was working as security supervisor in<\/p>\n
MSPS and was representing it for the purpose of obtaining the<\/p>\n
labour payment bills of security guards of MSPS of Sohagpur Area of<\/p>\n
SECL. On 29.10.2002, when Inspector of CBI, Jabalpur Shri<\/p>\n
S.M.S.Chouhan (PW10) was camping at Shahdol, Pradeep Kumar<\/p>\n
Shukla (PW5) submitted a written complaint (Ex.P\/5) to him stating<\/p>\n
that accused Sanjay Kumar was demanding Rs.3000\/- for issuing the<\/p>\n
LPC for the month of May, 2002 without which the payment of wages<\/p>\n
for the month of June 2002 of the security guards of MSPS was held<\/p>\n
up.   On   the   basis   of   aforesaid      complaint   (Ex.P\/5),   Inspector
\n                                                                   Cr.A.1397\/2005
\n                                       (3)<\/span><\/p>\n
S.M.S.Chouhan (PW10) started investigation. He decided to lay a<\/p>\n
trap on Sanjay Kumar for catching him red-handed. On 29.10.2002,<\/p>\n
he summoned two officers from New India Assurance Company,<\/p>\n
Shahdol viz. S.K.Dwivedi (PW2) and Bhupat Kishore (PW3) at Hotel<\/p>\n
Surya, Room No.203 at about 4 p.m. where the team of CBI was<\/p>\n
staying. S.K.Dwivedi (PW2) was the Development Officer and Bhupat<\/p>\n
Kishore (PW3) was Administrative Officer in New India Assurance<\/p>\n
Company, Shahdol. When these witnesses reached hotel, they were<\/p>\n
introduced to complainant Pradeep Kumar Shukla (PW5). They read<\/p>\n
the complaint Ex.P\/5 made by Pradeep Kumar Shukla and after<\/p>\n
verifying the authenticity of the complaint, signed on it.<\/p>\n
3.            Demonstration of pre-trap proceedings was done and<\/p>\n
Pradeep Kumar Shukla was asked to give the currency notes, which<\/p>\n
were to be delivered to accused by way of bribe. He handed over 30<\/p>\n
notes of denomination of Rs.100\/-, totalling Rs.3000\/-. Numbers of<\/p>\n
the   notes    were   recorded    in     pre-trap     memorandum       Ex.P\/6;<\/p>\n
phenolphthalein powder was applied to the said notes and the notes<\/p>\n
were kept in the left pocket of the shirt of Pradeep Kumar Shukla.<\/p>\n
Pradeep Kumar Shukla was asked to not to touch these notes unless<\/p>\n
they were to be handed over to accused on his demand. S.K.Dwivedi<\/p>\n
was directed to accompany Pradeep Kumar Shukla as a shadow<\/p>\n
witness and was instructed to hear the talks taking place between<\/p>\n
accused and the complainant and to give a signal after the tainted<\/p>\n
money was handed over to accused. Bhupat Kishore (PW3) was<\/p>\n
instructed    to   accompany     the    trap   team    and   to   watch     the<\/p>\n
proceedings.\n<\/p>\n
4.            The trap party with Pradeep Kumar Shukla proceeded on<\/p>\n
two vehicles for the residence of accused. Accused at that time lived<\/p>\n
at Sanjay Nagar, Amlai Zet hostel Room No.12. Pradeep Kumar
\n                                                          Cr.A.1397\/2005
\n                                 (4)<\/span><\/p>\n
Shukla and S.K.Dwivedi went to the room of accused and after about<\/p>\n
15 minutes, at about 9:30 p.m. S.K.Dwivedi (PW2) came out of the<\/p>\n
room and gave signal to the trap party by igniting a cigarette with<\/p>\n
matchstick. The members of the CBI team entered Room No.12 of<\/p>\n
Sanjay Kumar. Inspector S.M.S.Chouhan         (PW10)    and another<\/p>\n
member of the team caught the wrists of both the hands of Sanjay<\/p>\n
Kumar and gave their introduction and informed him that he was<\/p>\n
caught for taking bribe of Rs.3000\/- from Pradeep Kumar Shukla.<\/p>\n
Pradeep Kumar Shukla and S.K.Dwivedi informed that Sanjay Kumar<\/p>\n
had kept the notes in the left pocket of his shirt.   Bhupat Kishore<\/p>\n
(PW3) took out the currency notes from the said pocket and tallied<\/p>\n
numbers of the notes with the numbers noted in the pre-trap<\/p>\n
memorandum. The notes were seized and sealed in an envelope.<\/p>\n
Hands of Sanjay Kumar were washed with sodium carbonate solution<\/p>\n
whereby the colour of the solution turned pink. The pocket of the<\/p>\n
shirt from which the currency notes were recovered was dipped in<\/p>\n
sodium carbonate solution, which gave pink colour. The solution was<\/p>\n
sealed and seized shirt was also wrapped in a paper and sealed.<\/p>\n
Hands of complainant were also washed with sodium carbonate<\/p>\n
solution and solution was sealed in a bottle. After completing the<\/p>\n
trap proceedings, Inspector S.M.S.Chouhan (PW10) recorded the<\/p>\n
post-trap memorandum Ex.P\/7 which was signed by the members of<\/p>\n
the trap party. Some documents were seized from the office of SECL,<\/p>\n
OCM vide seizure memo Ex.P\/9. FIR of the incident Ex.P\/20 was<\/p>\n
recorded and investigation of the case was conducted by Paneer<\/p>\n
Salwam, CBI Inspector (PW9). He recorded the statements of<\/p>\n
witnesses and collected the relevant documents and obtained the<\/p>\n
sanction from Naresh Kumar Sharma (PW4), Chief Managing<\/p>\n
Director. Reports of Central Forensic Science Laboratory, New Delhi
\n                                                           Cr.A.1397\/2005
\n                                 (5)<\/span><\/p>\n
(in short CFSL) in respect of seized solutions were received. Though<\/p>\n
presence of phenolphthalein in the solution was found positive in<\/p>\n
other solution, but in Ex.-E the solution obtained after washing the<\/p>\n
pocket of the shirt of accused did not show the presence of<\/p>\n
phenolphthalein. After investigation, charge sheet was filed.<\/p>\n
5.         Accused abjured his guilt and pleaded false implication.<\/p>\n
He filed his statement under section 233(2) of the Code of Criminal<\/p>\n
Procedure stating that the whole episode was concocted by the<\/p>\n
officers of MSPS on false grounds. According to him, he never<\/p>\n
demanded money from Pradeep Kumar Shukla for issuing LPC after<\/p>\n
the month of April 2002. There was no ground for him to issue LPC<\/p>\n
as from that time payment of the labours was being made through<\/p>\n
the Bank for which LPC was not required. The requirement of grant<\/p>\n
of LPC was for verification that the employees of MSPS were being<\/p>\n
paid their wages, but since from April 2002 the employees of MSPS<\/p>\n
were being paid through Bank, there was no justifiable ground for<\/p>\n
issuing LPC.\n<\/p>\n
6.         Prosecution, to substantiate its case examined ten<\/p>\n
witnesses viz. Lal Singh (PW1), S.K.Dwivedi (PW2), Bhupat Kishore<\/p>\n
(PW3), Naresh Kumar Sharma (PW4), Pradeep Kumar Shukla (PW5),<\/p>\n
Yogendra Tiwari (PW6), Avinash Sarkar (PW7), Barmeshwar Singh<\/p>\n
(PW8), Paneer Salwam (PW9) and S.M.S.Chouhan (PW10). Accused<\/p>\n
also in his defence examined two witnesses viz. Sanjay Amte (DW1),<\/p>\n
Manager of Hotel Surya, Shahdol and Lakhwinder Singh (DW2), an<\/p>\n
employee of MSPS. Complainant Pradeep Kumar Shukla (PW5) did<\/p>\n
not support the prosecution case by denying the demand of money<\/p>\n
by the accused. However, learned trial Court relying on the evidence<\/p>\n
of other prosecution witnesses held the accused guilty and convicted<\/p>\n
and sentenced him as mentioned above.\n<\/p>\n
                                                           Cr.A.1397\/2005
\n                                   (6)<\/span><\/p>\n
7.         Shri Anil Khare, learned counsel for the appellant,<\/p>\n
contended that accused\/appellant was falsely implicated in the case.<\/p>\n
The case was concocted at the instance of officials of MSPS. There<\/p>\n
was no occasion for demand of any money from complainant Pradeep<\/p>\n
Kumar Shukla for issuance of LPC, as from April 2002 labour<\/p>\n
payment of MSPS was being made through the Bank. The officers of<\/p>\n
MSPS had made four complaints to CBI against the officers of SECL.<\/p>\n
In all the aforesaid complaints, the alleged amount of bribe was said<\/p>\n
to be Rs.3000\/-. All the said complaints were made at Surya Hotel on<\/p>\n
29.10.2002. He contended that it was not established from the<\/p>\n
evidence of prosecution witnesses that any demand was made by the<\/p>\n
accused. The evidence of the prosecution witnesses in that regard<\/p>\n
was   inconsistent,   discrepant   and   contradictory.   Complainant<\/p>\n
Pradeep Kumar Shukla (PW5) himself did not say that any demand<\/p>\n
was made by the accused. Almost all the prosecution witnesses<\/p>\n
including the complainant admitted that at the relevant time no LPC<\/p>\n
was required to be issued since payment of wages of the employees<\/p>\n
of MSPS was being made through Bank since June 2002. He further<\/p>\n
contended that trap witnesses viz. S.K.Dwivedi (PW2) and Bhupat<\/p>\n
Kishore (PW3) were not independent witnesses. Their evidence was<\/p>\n
inconsistent and contradictory. At the time of passing of the alleged<\/p>\n
money, S.K.Dwivedi (PW2) had already left the room where the<\/p>\n
transaction is said to have taken place. He further contended that<\/p>\n
from the report of CFSL, it was clear that the pocket of the shirt of<\/p>\n
accused in which the tainted currency notes were allegedly kept did<\/p>\n
not contain traces of phenolphthalein. The evidence of sending the<\/p>\n
shirt again for test of phenolphthalein was suspicious. There was no<\/p>\n
evidence on record to indicate that the said seized shirt of accused<\/p>\n
was kept intact. The seal by which the shirt was sealed in the packet
\n                                                              Cr.A.1397\/2005
\n                                  (7)<\/span><\/p>\n
was not handed over to any independent person to rule out the<\/p>\n
possibility of tampering. The explanation given by the accused was<\/p>\n
probable and reliable and was substantiated by the prosecution<\/p>\n
witnesses itself apart from the evidence of defence witnesses. On the<\/p>\n
contrary, Shri Jayant Nikhra, learned counsel for CBI, contended<\/p>\n
that the evidence of prosecution witnesses was reliable and<\/p>\n
sufficient to bring home the accusation against the accused.<\/p>\n
Complainant Pradeep Kumar Shukla (PW5) did not support the<\/p>\n
prosecution case because he had been sacked from the job. There<\/p>\n
was evidence on record to indicate that LPC was required to be<\/p>\n
issued for the month of May 2002. He contended that the evidence of<\/p>\n
S.K.Dwivedi   (PW2)    and   Bhupat       Kishore   (PW3),   who     were<\/p>\n
independent witnesses, was trustworthy. It was established from the<\/p>\n
report of CFSL that the tainted currency notes were accepted by the<\/p>\n
accused and kept in the pocket. There was nothing on record to<\/p>\n
indicate that the shirt of accused was tampered with by anybody. He<\/p>\n
contended that even if the complainant did not support the<\/p>\n
prosecution case, the accused could be convicted if the offence was<\/p>\n
proved by other evidence on record. He justified the finding of<\/p>\n
conviction recorded by the trial Court.\n<\/p>\n
8.          We heard the learned counsel of both the sides at length<\/p>\n
and perused the impugned judgment and the evidence and material<\/p>\n
on record carefully.\n<\/p>\n
9.          It is not disputed by the appellant that he was working as<\/p>\n
Senior Personnel Officer in OCM of South Eastern Coalfield Limited,<\/p>\n
Sohagpur Area and was a public servant.\n<\/p>\n
10.         Learned counsel for the appellant argued that the<\/p>\n
prosecution failed to prove that the appellant had an opportunity to<\/p>\n
make demand of bribe from the complainant. Since the LPC was not
\n                                                           Cr.A.1397\/2005
\n                                   (8)<\/span><\/p>\n
required to be issued at the relevant time because the payment of<\/p>\n
wages of the employees of MSPS was being made through Bank. It<\/p>\n
was necessary to find out if there was any motive for payment of<\/p>\n
bribe in the fact situation of the present case.<\/p>\n
11.         Lal Singh (PW1), who was working as Accountant in<\/p>\n
OCM, SECL deposed that he had the file of MSPS containing the bill<\/p>\n
of wages (Ex.P\/1) pertaining to period 1.6.2002 to 30.6.2002. The<\/p>\n
payment voucher of the bill (Ex.P\/3) was also in the file. Bill Ex.P\/1<\/p>\n
was presented to Area Manager of OCM by MSPS on 1.7.2002. It<\/p>\n
was received in the Finance Department on 4.8.2002. The value of<\/p>\n
the bill was Rs.1,11,103\/-. This bill was forwarded to Finance<\/p>\n
Manager Avinash Sarkar and was paid as per payment voucher Ex.P\/<\/p>\n
3. He admitted that since the month of April 2002 the payment of the<\/p>\n
wages of the employees of MSPS was being done through the Bank,<\/p>\n
therefore, no LPC was required. He categorically stated that he<\/p>\n
knew accused Sanjay Kumar since about last 3 years. He was a good<\/p>\n
worker and his papers were always found correct.<\/p>\n
12.         Avinash Sarkar (PW7), Deputy Finance Manager of SECL<\/p>\n
explained the necessity of LPC. According to him, the certificate was<\/p>\n
required for verification that the payments to labours were being<\/p>\n
made correctly. It was a certificate to the effect that the payment of<\/p>\n
wages was made before the officer concerned. The certificate was<\/p>\n
used to be issued by the personnel officer. At the time of occurrence,<\/p>\n
accused Sanjay Kumar was working on the post of personnel officer.<\/p>\n
This witness too admitted that LPC was not necessitated after the<\/p>\n
direction about the payment through Bank was issued. Referring to<\/p>\n
letter Ex.P\/15, written by Area Security Officer of SECL, it was<\/p>\n
deposed by him that the bill Ex.P\/14 was lying with the Accounts<\/p>\n
Department for want of LPC for the month of May 2002, however,
\n                                                          Cr.A.1397\/2005
\n                                 (9)<\/span><\/p>\n
this letter indicated that the payment to the staff\/workers engaged<\/p>\n
by the concerned agency was being made through Bank from the<\/p>\n
month of April 2002, therefore, the payment for the month of June,<\/p>\n
2002 may be released and necessary certificate could be submitted<\/p>\n
after collecting the required documents for the month of May 2002.<\/p>\n
This was done because the concerned agency was pressing hard for<\/p>\n
the payment in view of ‘Deepawali’ festival. This gives some<\/p>\n
indication that the payment of wages of the concerned agency i.e.<\/p>\n
MSPS were being made through the Bank from the month of April<\/p>\n
2002. This witness further deposed that in respect of bill Ex.P\/14 he<\/p>\n
had sought advice from the Finance Department by sending a note<\/p>\n
Ex.P\/17 as to what should have been done as the LPC from the<\/p>\n
month of May, 2002 was not found, whereupon Mr. Barmeshwar<\/p>\n
Singh, Deputy Finance Manager had directed him to obtain the LPC<\/p>\n
from the concerned officer. In this regard, the evidence of<\/p>\n
Barmeshwar Singh (PW8) is also significant. Barmeshwar Singh<\/p>\n
(PW8) deposed that he had found the bill correct, therefore, he had<\/p>\n
recommended for concurrence for the payment. He deposed that in<\/p>\n
the document Ex.P\/17, the then Assistant Finance Manager Mr. D.<\/p>\n
Chatterjee had directed him to obtain LPC.       This direction was<\/p>\n
signed by Area Finance Manager Shri D.Chatterjee.<\/p>\n
13.        Learned counsel for the appellant contended that though<\/p>\n
this endorsement was made on Ex.P\/17, but the Area Finance<\/p>\n
Manager Shri Chatterjee was not examined by the prosecution<\/p>\n
before the Court, therefore, this note cannot be made use of for<\/p>\n
holding that LPC was required at the relevant time, especially in<\/p>\n
view of the fact that Barmeshwar Singh (PW8), Finance Manager in<\/p>\n
cross-examination himself admitted that since April, 2002 the<\/p>\n
payment of labours was being made through Bank, therefore, no LPC
\n                                                          Cr.A.1397\/2005
\n                                (10)<\/span><\/p>\n
was required. He admitted that letter Ex.D\/4 dated 14.12.2001 was<\/p>\n
issued by Chief General Manager (Personnel and Administration)<\/p>\n
that only one time extension for a period of three months for making<\/p>\n
payment to Security Personnel of DGR Sponsored Security Agencies<\/p>\n
in cash was approved by the competent authority, however, they<\/p>\n
were informed that further payment to security personnel engaged<\/p>\n
by the Agencies will be made only through Bank by the concerned<\/p>\n
Security Agency. This witness deposed that by letter Ex.D\/8 dated<\/p>\n
2.4.2002, Deputy Chief Personnel Manager, Sohagpur Area had<\/p>\n
directed the officers of MSPS that they were allowed one time<\/p>\n
extension for three months only in the month of December 2001 and<\/p>\n
it was advised them for getting the Bank account opened for all their<\/p>\n
employees so that payment of March 2002 payable in April 2002<\/p>\n
could be made through Bank but they did not inform the<\/p>\n
management whether the same had been opened or not. In the said<\/p>\n
circumstances, the management shall be compelled not to allow<\/p>\n
them to make payment to their employees in cash and assurance was<\/p>\n
sought that the accounts were opened at the earliest so that the<\/p>\n
payment of the month of March 2002 could be released to their<\/p>\n
employees through Bank. Barmeshwar Singh (PW8) admitted that a<\/p>\n
letter Ex.D\/9 was written by Chief General Manager, Sohagpur Area<\/p>\n
to CMD, SECL, Bilaspur on 8.2.2003 in reference to a petition filed<\/p>\n
by MSPS in the High Court. In Ex.D\/9, it was indicated by the Chief<\/p>\n
General Manager that order to make payment through Bank was<\/p>\n
issued in the month of December 2001, which was extended up to<\/p>\n
April 2002. In between this, the MSPS adopted all efforts to avoid<\/p>\n
Bank payment with no results. They expressed so many problems in<\/p>\n
opening the Bank Account, but they reluctantly and half-heartedly<\/p>\n
responded and after long persuasion the payment could be made
\n                                                           Cr.A.1397\/2005
\n                                 (11)<\/span><\/p>\n
through Bank from April 2002. It was also expressed in the said<\/p>\n
letter that MSPS Management was so greedy for money that they<\/p>\n
assigned the management of the Company to those persons, who<\/p>\n
were arrogant and could threaten guards to extract money from<\/p>\n
their salary, but due to payment made through Bank, they were not<\/p>\n
getting chance and as such they were annoyed and frustrated.<\/p>\n
This witness admitted that he heard many times that the officers of<\/p>\n
MSPS misbehaved with the officials of SECL.\n<\/p>\n
14.        In the light of the evidence of aforesaid witnesses when<\/p>\n
we examine the evidence of complainant Pradeep Kumar Shukla<\/p>\n
(PW5), it seems that accused Sanjay Kumar refused to give him LPC<\/p>\n
because it was not required. He stated that when he met accused for<\/p>\n
obtaining LPC, he told him that he would not give LPC because it<\/p>\n
was not required and that he had no role for getting his bill paid.<\/p>\n
This witness admitted that though he made a complaint to CBI that<\/p>\n
Sanjay Kumar was demanding money, but in fact he had not asked<\/p>\n
for any money. He admitted that the labour payment for the month<\/p>\n
of May 2001 was done by his company through Bank. In para 17 of<\/p>\n
his statement, he denied that in the month of October, 2002 accused<\/p>\n
asked him that if he wanted to get his bill passed early, he will have<\/p>\n
to pay for it. Though the fact that accused did not make any demand<\/p>\n
from him was omission in his police statement, yet his categorical<\/p>\n
statement before the Court that accused did not ask money from him<\/p>\n
casts serious doubt over the prosecution story that he demanded<\/p>\n
bribe for issuing LPC.\n<\/p>\n
15.        In Jagdish Chandra Makhija Vs. State of Madhya<\/p>\n
Pradesh (1990 MPLJ 239), it has been held that in a trap case when<\/p>\n
initial part of the story of demand and offer is found to be<\/p>\n
untrustworthy, testimony of the complainant cannot be accepted. In
\n                                                                 Cr.A.1397\/2005
\n                                     (12)<\/span><\/p>\n
assessing the evidence of a witness, the background of the<\/p>\n
prosecution story should be kept in mind. Where the complainant<\/p>\n
seems to have no regard for the truth and admitted that he made a<\/p>\n
false complaint under the pressure of his officers, his testimony<\/p>\n
cannot be accepted. In cross-examination, complainant admitted<\/p>\n
that the officers of his Company had decided that three officers of<\/p>\n
SECL viz. S.K.Singh, Ajay Singh and Sanjay Kumar should be<\/p>\n
trapped. He was asked to get accused Sanjay Kumar trapped. He<\/p>\n
disclosed that while writing the complaint application he told to<\/p>\n
Yogendra Tiwari (PW6) that Sanjay Kumar did not make any demand<\/p>\n
from him, Yogendra Tiwari (PW6) asked him to write as he<\/p>\n
instructed. He admitted that he made the complaint because he<\/p>\n
could not disobey the direction of his senior officer. It was Yogendra<\/p>\n
Tiwari who had taken him to CBI officers. Complainant admitted<\/p>\n
that since in the month of March 2002 the labour payment was<\/p>\n
being made through Bank, therefore, LPC was not required.<\/p>\n
16.           Yogendra Tiwari (PW6), Chief Executive Officer of<\/p>\n
MSPS, deposed that in the month of October, 2002 Pradeep Kumar<\/p>\n
Shukla informed him that the payment of the bill for the month of<\/p>\n
June 2002 was not being made because accused was not issuing LPC<\/p>\n
for the month of May 2002 and for issuing the same he was<\/p>\n
demanding bribe of Rs.3000\/-. According to him, he then advised<\/p>\n
Shukla to make a report to CBI. In cross-examination, this witness<\/p>\n
was confronted with his police statement Ex.D\/3 wherein these facts<\/p>\n
were not disclosed by him. In view of these material contradictions,<\/p>\n
his evidence does not inspire confidence. Learned counsel for the<\/p>\n
CBI argued that even if the complainant did not support the<\/p>\n
prosecution    case   and   turned    hostile,   since   he   admitted    his<\/p>\n
signatures on the complaint, the complaint Ex.P\/5 proved the
\n                                                           Cr.A.1397\/2005
\n                                 (13)<\/span><\/p>\n
demand made by the accused. He further argued that the demand<\/p>\n
was also proved by the fact that complainant admitted before<\/p>\n
Yogendra Tiwari (PW6), S.K.Dwivedi (PW2) and Bhupat Kishore<\/p>\n
(PW3) that accused demanded bribe of Rs.3000\/-. We are afraid that<\/p>\n
this argument of learned counsel cannot be accepted. Evidence of<\/p>\n
S.K.Dwivedi (PW2) and Bhupat Kishore (PW3) that Pradeep Kumar<\/p>\n
Shukla admitted before them that accused demanded bribe cannot<\/p>\n
be accepted in view of the fact that the complainant himself deposed<\/p>\n
that the false complaint was made by him under the pressure of the<\/p>\n
officers of his Company. Apart from that the complaint Ex.P\/5 cannot<\/p>\n
be treated as substantive evidence.\n<\/p>\n
17.          In Suresh Kumar Shrivastava Vs. State of Madhya<\/p>\n
Pradesh (1994 MPLJ 30), it was held that the complaint cannot be<\/p>\n
treated as substantive evidence. It contained only a “former<\/p>\n
statement” of the complainant that accused had demanded money<\/p>\n
from him for showing favour to him. “Former Statement” could<\/p>\n
either be used to corroborate under section 157 of the Evidence Act<\/p>\n
of the complainant given in the Court or to contradict his evidence<\/p>\n
under section 145 of the Evidence Act. When complainant did not<\/p>\n
support the story that demand was made by accused, there was no<\/p>\n
substantive evidence or deposition of the witness before the Court, it<\/p>\n
would be wrong on the part of the trial Court to base a decision on<\/p>\n
what was merely a “former statement” of a witness contained in the<\/p>\n
complaint.\n<\/p>\n
18.          In view of the above discussion, we feel compelled to<\/p>\n
hold that it was not established beyond reasonable doubt that<\/p>\n
accused had an occasion to issue LPC that could have given him an<\/p>\n
opportunity to make a demand of bribe and to the complainant the<\/p>\n
occasion to offer the same.\n<\/p>\n
                                                              Cr.A.1397\/2005
\n                                     (14)<\/span><\/p>\n
19.            Learned counsel for the appellant argued that the<\/p>\n
evidence of receipt of bribe money by the accused has not been<\/p>\n
established beyond the reasonable doubt. Whole episode was<\/p>\n
manufactured under conspiracy by the officers of security agency<\/p>\n
who entertained grudge against the officers of SECL for various<\/p>\n
reasons. The trap was arranged with the connivance of the officers<\/p>\n
of CBI who had assembled in hotel Surya at Shahdol. According to<\/p>\n
him, the explanation given by accused immediately at the time of<\/p>\n
trap and in the written statement submitted by him before the trial<\/p>\n
Court   that    he   was   falsely   implicated   under conspiracy    was<\/p>\n
reasonable and probable under the circumstances of the case.<\/p>\n
S.K.Dwivedi (PW2), who was summoned as an independent witness<\/p>\n
from New India Insurance Company, deposed that he with Bhupat<\/p>\n
Kishore had reached Surya Hotel at 4:00 p.m. where he met CBI<\/p>\n
Inspector Chouhan and complainant Pradeep Kumar Shukla. After<\/p>\n
verification of the complaint from Pradeep Kumar Shukla, he saw<\/p>\n
the demonstration conducted by the CBI Inspector. Under the<\/p>\n
instruction of CBI Inspector, he went with Pradeep Kumar Shukla as<\/p>\n
a shadow witness to Zet hostel in Sanjay Nagar where accused was<\/p>\n
residing. Other members of the trap party stayed at some distance<\/p>\n
from the building and he and Pradeep Kumar Shukla went at the<\/p>\n
house of accused. Pradeep Kumar Shukla introduced him as his new<\/p>\n
incharge. There had been some talks about the pending bills of the<\/p>\n
Company. Thereafter accused enquired from Pradeep Kumar Shukla<\/p>\n
whether he had brought the money. Pradeep Kumar Shukla took out<\/p>\n
the money from his pocket and gave it in the right hand of the<\/p>\n
accused who kept it in his left side pocket of the shirt. According to<\/p>\n
him, accused assured him that his work shall be done. S.K.Dwivedi<\/p>\n
then went out and ignited a cigarette for giving signal to the trap
\n                                                                 Cr.A.1397\/2005
\n                                   (15)<\/span><\/p>\n
party. Trap party came in the room and Inspector S.M.S.Chouhan<\/p>\n
caught hold of the hands of accused. According to this witness,<\/p>\n
accused uttered that “he committed mistake”. Thereafter Bhupat<\/p>\n
Kishore took out money from the pocket of accused. The hands and<\/p>\n
the pocket of accused from which the currency notes were taken<\/p>\n
out, when washed with sodium carbonate turned pink. Numbers of<\/p>\n
the notes also tallied with the numbers of the notes, which had been<\/p>\n
given to complaint. Similar facts were deposed by Bhupat Kishore<\/p>\n
(PW3), however, he deposed that when CBI officer enquired from<\/p>\n
the accused as to where he had kept the bribe money, accused could<\/p>\n
say nothing. Bhupat Kishore admitted that he himself had not seen<\/p>\n
the complaint delivering money to accused. Both the aforesaid<\/p>\n
witnesses stated that the pocket of the shirt of accused was washed<\/p>\n
and the pink solution of sodium carbonate was seized. But when we<\/p>\n
turn to the evidence to complainant Pradeep Kumar Shukla (PW5),<\/p>\n
we find that he deposed that when he and S.K.Dwivedi went in the<\/p>\n
room of accused and asked him for passing the bill, accused asked<\/p>\n
them to come in the office next day. He took out Rs.3000\/- from his<\/p>\n
pocket and wanted to give the same to accused but he refused to<\/p>\n
accept it. At the time when he offered money to accused,<\/p>\n
S.K.Dwivedi   left    and   went   out    of    the   room.   According     to<\/p>\n
complainant, when he insisted to give money, accused tried to<\/p>\n
return the same and, therefore, he kept the money on the bed and at<\/p>\n
that moment CBI team reached there and caught the hands of<\/p>\n
accused. Complainant stated that when Inspector Chouhan asked<\/p>\n
the accused that he had taken bribe, accused replied that he was<\/p>\n
falsely implicated.\n<\/p>\n
20.         Learned     counsel    for    the     State   contended       that<\/p>\n
complainant Pradeep Kumar Shukla was declared hostile, therefore,
\n                                                          Cr.A.1397\/2005
\n                                 (16)<\/span><\/p>\n
his evidence was unworthy of reliance. According to him, the<\/p>\n
acceptance of bribe money by accused was established by the fact<\/p>\n
that hands of the accused and pocket of his shirt contained traces of<\/p>\n
phenolphthalein, which was established by Central Forensic Science<\/p>\n
Laboratory (CFSL) report. Contrary to it, learned counsel for the<\/p>\n
accused contended that the fact that the tainted money was kept in<\/p>\n
the pocket by the accused was belied by the result of CFSL test in<\/p>\n
respect of the solution of the pocket, as it was found to be negative<\/p>\n
for the phenolphthalein test. CFSL report is Ex.P\/33. Since for the<\/p>\n
first time CFSL report in respect of the solution of the pocket was<\/p>\n
found negative, the shirt was again sent for test of presence of<\/p>\n
phenolphthalein powder and a fresh report Ex.P\/32 was received,<\/p>\n
according to which, presence of phenolphthalein was confirmed in<\/p>\n
the pocket.\n<\/p>\n
21.           Learned counsel for the accused vehemently argued that<\/p>\n
the second test report was not reliable. When the solution collected<\/p>\n
after washing the pocket of the shirt at the spot did not contain<\/p>\n
traces of phenolphthalein, it was highly improbable that the shirt<\/p>\n
would still contain the phenolphthalein at later stage. He argued<\/p>\n
that though it has been stated by the prosecution witnesses that the<\/p>\n
shirt was sealed at the spot, yet there was no evidence on record to<\/p>\n
indicate that the shirt was kept in safe custody and the seal with<\/p>\n
which it was sealed was also kept in safe custody of any independent<\/p>\n
person. The trap was conducted on 29.10.2002 whereas the shirt in<\/p>\n
question was received by CFSL on 3.2.2003. He placed reliance on<\/p>\n
Mohd. Aman and another vs. State of Rajasthan (AIR 1997 SC 2960)<\/p>\n
where, in regard to the period of custody of empty cartridge with the<\/p>\n
police, it was held that inordinate delay in sending the same for<\/p>\n
examination to ballistic expert raised doubt and gave rise to
\n                                                                    Cr.A.1397\/2005
\n                                    (17)<\/span><\/p>\n
suspicion.   There   was    delay   of     only   5   days   but     in   those<\/p>\n
circumstances, it was held by the Apex Court that there was no<\/p>\n
justifiable reason for the delay. In Mahmood Vs. State of Uttar<\/p>\n
Pradesh (AIR 1976 SC 69), Apex Court held that after sealing the<\/p>\n
parcel of any article, the seal should not remain with the<\/p>\n
investigating agency. This principle was also followed by the High<\/p>\n
Court of Madhya Pradesh in Vijay Singh Vs. State of Madhya<\/p>\n
Pradesh [2004(4) MPLJ 543] and Ganesh @ Ganesha @ Ganesh<\/p>\n
Prasad and another Vs. State of Madhya Pradesh [I.L.R. (2008)<\/p>\n
M.P.3026].\n<\/p>\n
22.          The fact that initially the pocket of the shirt did not give<\/p>\n
traces of phenolphthalein and subsequently the phenolphthalein test<\/p>\n
gave positive result, in our opinion, throws considerable doubt about<\/p>\n
the presence of phenolphthalein in the pocket of accused. This<\/p>\n
circumstance militates against the prosecution version that the<\/p>\n
accused received the tainted currency notes and kept it in his<\/p>\n
pocket. In these circumstances, the evidence of complainant that<\/p>\n
accused refused to accept money and, therefore, he kept it on the<\/p>\n
bed seems probable. It is also probable that when complainant<\/p>\n
insisted and accused refused to accept the bribe money, the hands<\/p>\n
of accused might have come in contact of tainted currency notes. In<\/p>\n
the above fact situation, the explanation furnished by accused that<\/p>\n
the officers of MSPS in connivance with the officers of CBI arranged<\/p>\n
a false trap, appears probable.\n<\/p>\n
23.          Learned counsel for the accused, referring to the<\/p>\n
evidence of Sanjay Amte (DW1), argued that the whole episode was<\/p>\n
a frame-up. On 20.10.2002, M.S.Chouhan, C.L.Patel, B.R.Prabhakar<\/p>\n
and Vinayak Dubey had come in his hotel Surya at Shahdol. Room<\/p>\n
No.201 was took in the name of V.Joshi and in this room 5-6 persons
\n                                                         Cr.A.1397\/2005
\n                                (18)<\/span><\/p>\n
had stayed. Lakhvinder Singh (DW2) deposed that he along with his<\/p>\n
boss Yogendra Tiwari and Mr. Joshi had reached Surya hotel. Two<\/p>\n
persons from CBI who were in civil dress had accompanied them<\/p>\n
from Bhopal. Shakeel Ahmad, Advocate who was legal advisor of<\/p>\n
Maruti Security Company was also with them. Yogendra Tiwari had<\/p>\n
asked Mr.Gautam, Mr. Shukla and Joshi to write three complaints<\/p>\n
and had given money. When complainant Pradeep Kumar Shukla<\/p>\n
had told that accused had not demanded money, Yogendra Tiwari<\/p>\n
had asked him to do what he said. These facts find corroboration<\/p>\n
from the evidence of Pradeep Kumar Shukla (PW5) who deposed<\/p>\n
that on 29.10.2002 when he had gone to hotel Surya he had met<\/p>\n
Finance Manager Vinod Joshi and Devnath Gautam in one room.<\/p>\n
Chief Executive Yogendra Tiwari and former manager Lakhvinder<\/p>\n
Singh and Shakeel Ahmad were also present. According to him,<\/p>\n
officers of the Company had decided to get three persons viz.<\/p>\n
S.K.Singh, Ajay Singh and Sanjay Kumar trapped. He was asked to<\/p>\n
get Sanjay Kumar trapped though Sanjay Kumar never made any<\/p>\n
demand from him. He disclosed that Yogendra Dixit had introduced<\/p>\n
him to CBI people.\n<\/p>\n
24.         In State of Madhya Pradesh Vs. J.B.Singh [AIR 2000 SC<\/p>\n
3562], Supreme Court observed that so far as payment is concerned,<\/p>\n
once complainant himself did not support the prosecution case,<\/p>\n
there is no material to establish the alleged payment said to have<\/p>\n
been made by complainant to the accused pursuant to the alleged<\/p>\n
demand. Therefore, all the necessary ingredients of the offence<\/p>\n
under section 5(1)(d) of the Prevention of Corruption Act as well as<\/p>\n
under section 161,IPC not having established, the order of acquittal<\/p>\n
is justified. In Sita Ram Vs. State of Rajasthan [AIR 1975 SC 1432]<\/p>\n
Apex Court held that when story of demand of bribe by the accused
\n                                                                  Cr.A.1397\/2005
\n                                  (19)<\/span><\/p>\n
from the complainant was not proved and even the story of payment<\/p>\n
of money by the complainant was not established beyond reasonable<\/p>\n
doubt, the rule of presumption engrafted in section 4(1) could not be<\/p>\n
made use of for convicting the accused. In Suraj Mal Vs. The State<\/p>\n
(Delhi Administration) [AIR 1979 SC 1408] , Apex Court held that in<\/p>\n
the case of bribery, mere recovery of money divorced from the<\/p>\n
circumstances under which it is paid is not sufficient to convict the<\/p>\n
accused when the substantive evidence in the case is not reliable. In<\/p>\n
Punjabrao Vs. State of Maharashtra [2002 AIR SCW 16], Apex Court<\/p>\n
observed “It is too well settled that in a case where the accused<\/p>\n
offers an explanation for receipt of the alleged amount, the question<\/p>\n
that arises for consideration is whether that explanation can be said<\/p>\n
to have been established. It is further clear that the accused is not<\/p>\n
required to establish his defence by proving beyond reasonable<\/p>\n
doubt   as   the   prosecution,   but    can   establish   the     same    by<\/p>\n
preponderance of probability.” Similar view was expressed by the<\/p>\n
Apex Court in case of Ganga Kumar Shrivastava Vs. State of Bihar<\/p>\n
[(2005) 6 SCC 211].\n<\/p>\n
25.          After scanning and analyzing the evidence adduced by<\/p>\n
the prosecution, we are unable to hold that prosecution was<\/p>\n
successful in establishing beyond reasonable doubt that there was<\/p>\n
any occasion for the accused to have demanded bribe from the<\/p>\n
complainant for issuing the LPC. It was not proved beyond doubt<\/p>\n
that at the relevant time such a certificate was required for payment<\/p>\n
of wages of the employees of MSPS, since the payment of wages of<\/p>\n
MSPS was already being made through the Bank. Apart from that,<\/p>\n
complainant Pradeep Kumar Shukla (PW5) himself did not support<\/p>\n
the prosecution version and categorically stated that no demand was<\/p>\n
made by the accused. Complaint (Ex.P\/5) could not have been
\n                                                             Cr.A.1397\/2005
\n                                  (20)<\/span><\/p>\n
treated as substantive evidence in the absence of evidence of its<\/p>\n
maker. Complainant himself admitted that the complaint Ex.P\/5 was<\/p>\n
made by him under coercion of the officers of his Company. In view<\/p>\n
of his admission, the evidence of other independent witnesses viz.<\/p>\n
S.K.Dwivedi (PW2) and Bhupat Kishore (PW3) was rendered of no<\/p>\n
use. Apart from the above facts, the fact that for the first time<\/p>\n
sodium carbonate solution in which the pocket of the shirt of the<\/p>\n
accused was dipped negatived the presence of phenolphthalein,<\/p>\n
created doubt about the acceptance of bribe money by the accused.<\/p>\n
Besides that, the conduct of CBI Inspector S.M.S.Chouhan (PW10)<\/p>\n
seemed to be suspicious. He could not say as to how long he had<\/p>\n
stayed in Surya Hotel. He could even not explain whether he was<\/p>\n
staying for one day, two days or three days. According to him, no<\/p>\n
information was given to people of Shahdol that he was staying at<\/p>\n
Shahdol and if anybody wanted he could have contacted him. It is<\/p>\n
suspicious that how the complainant approached to him for<\/p>\n
arranging trap. Inspector Chouhan even did not inform and obtain<\/p>\n
any instruction from the Superintendent of Police, CBI for taking any<\/p>\n
action against the accused. These facts clearly smack of some kind<\/p>\n
of under hand dealing and connivance with the officers of Maruti<\/p>\n
Agency.\n<\/p>\n
26.         In view of the discussions made hereinabove, we hold<\/p>\n
that the judgment of conviction and sentence passed by the trial<\/p>\n
Court is liable to be set aside on the ground that the findings of fact<\/p>\n
and appreciation of evidence are vitiated as the evidence adduced by<\/p>\n
the prosecution fell short of the test of reliability and acceptability,<\/p>\n
and as such, it was not safe to convict the accused\/appellant. For the<\/p>\n
reasons aforesaid, we set aside the impugned judgment of conviction
\n                                                       Cr.A.1397\/2005
\n                               (21)<\/span><\/p>\n
passed by the trial Court and acquit the appellant of the charges<\/p>\n
levelled against him.\n<\/p>\n
27.        Appeal allowed.\n<\/p>\n<\/p>\n
      (Rakesh Saksena)                           (S.A.Naqvi)\n           Judge                                    Judge\nb\n        Cr.A.1397\/2005\n(22)<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-246106","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nSanjay Kumar vs Central Bureau Of Investigation on 8 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sanjay-kumar-vs-central-bureau-of-investigation-on-8-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sanjay Kumar vs Central Bureau Of Investigation on 8 December, 2009 - 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