HIGH COURT OF MADHYA PRADESH : JABALPUR [CASE NUMBER] [ENTITY], S/o Ghanshyamdas Rajwani, Occu. L.D.C., Passport Office, Bhopal (M.P.) R/o A-9/84, New Mini Market, Bairagarh, Bhopal. Vs. [ENTITY] Through- Superintendent, C.B.I. Branch, Bhopal (M.P.) & [CASE NUMBER] [ENTITY], S/o Bihari Singh Rajput, Driver in the Passport Office, Bhopal (M.P.) R/o 1141, Ban Ganga, North T.T.Nagar, Bhopal. Vs. [ENTITY] (Through C.B.I.) DB : Hon. [ENTITY] & Hon. [ENTITY], JJ. Shri [ENTITY] , Sr.Advocate with Shri [ENTITY], Adv. for the appellant in [CASE NUMBER]. Smt.[ENTITY], Adv.for appellant in [CASE NUMBER]. Shri [ENTITY], Standing Counsel for respondent/CBI. JUDGMENT RESERVED ON 30/06/2011 JUDGMENT DELIVERED ON 14/07/2011 Whether approved for reporting: Yes/No -2- JUDGMENT
As Per : [ENTITY], J.
Since both the appeals arise out of common judgment, hence they are decided by this common judgment.
2. It is an admitted fact that appellant [ENTITY] was Lower Division Clerk and appellant [ENTITY] was Driver in the Regional Passport Office, Bhopal, so both were working in the same office.
3. Both the appellants have been convicted and sentenced by learned Special Judge (CBI) and IIIrd Addl. Sessions Judge, Bhopal in [CASE NUMBER] on 25.01.2000. Appellant [ENTITY] of [CASE NUMBER] has been convicted for alleged offence punishable under [SECTION] of the [ACT] (hereinafter referred to as "the Act") and sentenced to [ACT] for one year and fine of Rs.1,000/-, in default of payment of fine to further undergo [ACT] for fifteen days, and under [SECTION] of the Act [ACT] for one year and fine of Rs.1,000/-, in default of payment of fine to further undergo [ACT] for fifteen day, whereas appellant [ENTITY] of [CASE NUMBER] has been convicted for alleged offence punishable under [SECTION] of the Act and sentenced to [ACT] for six months and fine of Rs.200/-, in default of payment of fine to further undergo [ACT] for seven days, and under [SECTION] [ACT] for one year and fine of Rs.200/-, in default of payment of fine to further undergo [ACT] for seven day.
4. In brief, the prosecution case before the trial Court was that complainant [ENTITY] (PW.2) resident of Indore wanted renewal of his old passport. For this, he came to Bhopal on 3.9.97. Appellant [ENTITY] was posted as LDC and appellant [ENTITY] was posted as Driver in Regional Passport Office, Bhopal. Bribe of Rs.500/- was demanded from the complainant by the appellants who never wanted to give the said bribe so the matter was reported to CBI, Bhopal through Ex.P/11, and a trap was arranged. The currency notes of Rs.50/- (ten in denomination) total Rs.500/- were kept in his pocket and their numbers were noted down and they were applied with phenolphthalein powder and it was directed that on demand of bribe, the said notes were to be handed over to accused. Capt.[ENTITY] (PW.3) and [ENTITY] (PW.5) were set up as shadow witnesses by CBI. [ENTITY], complainant handed over the notes to appellant [ENTITY] as per directions of appellant [ENTITY] and tainted notes were recovered from the pocket of appellant [ENTITY] and when his hands were washed the colour of water changed into pink. As trap was successful, both appellants were arrested.
5. After further investigation and obtaining sanction, CBI filed the challan under [SECTION] and [SECTION] of the Act against [ENTITY], and under [SECTION] and [SECTION] of the Act against [ENTITY]. Charges were framed on 28.02.1998.
6. In order to substantiate its case prosecution examined [ENTITY] (PW.1) Passport Officer, [ENTITY] (PW.2) complainant, Capt.[ENTITY] (PW.3) shadow witness, [ENTITY] (PW.4) the authority who accorded sanction for prosecution, [ENTITY] (PW.5) shadow witness and [ENTITY] (PW.6) Investigating Officer (CBI). [ENTITY] (DW.1) Office Superintendent of Passport Office was examined by the defence.
7. In short the version of [ENTITY] (PW.2) before the trial Court was that he came on 3.9.97 to Bhopal for renewal of his passport , earlier he also visited 5-6 times for this purpose. He stated that while he was entering in passport office from the main gate, appellant [ENTITY] met him and asked the purpose of his visit in the office, on which witness narrated that he had to renew his passport which expired in 1993. Firstly [ENTITY] said that it cannot be renewed and then he said that he is going to talk with the officer within two minutes and he was asked to remain at the gate. [ENTITY] went near appellant [ENTITY] and after five minutes [ENTITY] came back and told that work will be done, but for that Rs.500/- will be charged, he said this thing after visiting co-appellant [ENTITY]. This witness categorically stated that these Rs.500/- were in addition to the actual fees.
[ENTITY] (PW.2) complainant further stated that he went to appellant [ENTITY] and asked him to renew his passport on which appellant [ENTITY] told him that he has already told to [ENTITY] about it and Rs.500/- be given to [ENTITY] and in the evening and renewed passport will be given. This conversation held at 11 a.m. Witness further stated that he handed over the passport and on the instructions of [ENTITY] deposited Rs.200/- at the counter as fee for renewal. Then appellant [ENTITY] told him that between 5-6 in the evening, he can take the passport. [ENTITY] further stated that he did not want to give the bribe so he visited the Office of CBI and presented a written application Ex.P/11 with his signatures. Then trap was arranged on the instructions of Supdt. of Police by [ENTITY] (PW.6). [ENTITY] called two officers and made plan of trap. Notes of Rs.500/-, in denomination of Rs.50/- each, 10 in numbers, numbers of which were noted and on which phenolphthalein powder was applied , were kept in the pocket of the shirt of this witness and it was asked that on demand the notes be given, and Capt.[ENTITY] (PW.3) was directed to go with the witness, and trap party was directed to go separately. He further stated that at about 6 pm he reached with Capt.[ENTITY] (PW.3) at passport office, appellant [ENTITY] was there in the counter, he said that he was waiting for the witness for a long time and he got the signatures of this witness on the register in which it was written that passport was given, though passport was not given to the witness. It was told by [ENTITY] that passport will be given by [ENTITY] and Rs.500/- be given to him. After this [ENTITY] went away from there. [ENTITY] (PW.2) complainant further stated that he remained there for 5- 7 minute, then he came out, he saw that [ENTITY] was there, so he asked for renewed passport, [ENTITY] said that it has been renewed, he asked for Rs.500/- so the tainted currency notes of Rs.500/- were given by this witness to [ENTITY], [ENTITY] kept it in back pocket of his pant , after receiving the money by [ENTITY] complainant gave specific signal, on his signal CBI team came and caught [ENTITY] and told him that he has taken Rs.500/- as bribe so he has been caught. Then appellant [ENTITY] was taken to the passport office and his hands were washed, solution become reddish which was sealed in bottles. Then [ENTITY] (PW.6) took the note out of the pocket of [ENTITY] and kept it in table and his pant was got off and its pocket was washed with solution which also became reddish, the pant was seized. The notes which were seized were tallied with the previously noted numbers and it was found that both were same and passport was found on the upper pocket of the shirt. Whole proceedings of trap was reduced in writing vide Ex.P/[SECTION] by CBI on which signatures of this witness were on A to A. Ex.P/1 is the passport form and Ex.P/2 is the receipt of Rs.200/-. [SECTION] is the passport which was recovered from [ENTITY]. [SECTION] is the seized bottle in which on a chit this witness put his signatures. He further stated that [SECTION] is the envelop in which seized currency notes were kept and the same were same which were given and numbers of which were previously taken by the CBI and recovered from [ENTITY]. [SECTION] is the envelop in which grey pant of [ENTITY] was there on which signatures of the witness were there from A to A.
8. Learned trial Court relied on the version of this witness [ENTITY] (PW.2) and also relied on the corroborative evidence of Capt. [ENTITY] (PW.3) and [ENTITY] (PW.5) who supported the version of complainant to the extent that they accompanied complainant as it was informed by the complainant that bribe of Rs.500/- was asked, numbers of the notes were noted down, trap was organized and tainted rupees were recovered from [ENTITY]. Trial Court also relied on the version of [ENTITY] (PW.4) Joint Secretary who gave sanction vide Ex.P/14 to prosecute the appellants. Trial Court further relying on the written report Ex.P/11 as corroborative piece of evidence , evidence of [ENTITY] (PW.6) and on trap as well as on demand and recovery found that appellant [ENTITY] took the bribe on demand of [ENTITY] and rejected the evidence of defence witness [ENTITY] (DW.1) that false implication was there.
9. These appeals have been filed mainly on the grounds that trial Court committed grave error both in law and facts in convicting and sentencing the appellants on the basis of wrong appreciation of the facts , it erred in coming to the conclusion that demand was made by appellant [ENTITY], there was no recovery from [ENTITY] and it was not proved that money which was recovered from [ENTITY] was a bribe, no evidence showing the meeting of minds of both appellants was produced, trial Court erred in appreciation of evidence that passport was renewed in a day so there was no occasion for the bribe as per circumstances of the case. No proper sanction was accorded by [ENTITY] (PW.4) and the evidence of prosecution witnesses was full of contradictions and omissions and it was not reliable and appellants have been convicted and sentenced on the suspicious evidence.
10. We have heard both the sides and perused the record.
11. Learned counsel for the appellants submitted that learned Special Judge has misappreciated the evidence on record. Learned Special Judge erred in holding appellant [ENTITY] guilty from whom no recovery was made and no demand of bribe was proved by the prosecution, and at the most recovery from [ENTITY] cannot be said to be recovery as he had to do nothing with the renewal of passport and it cannot be said that he received money on behalf of [ENTITY] and it has not been proved that appellant [ENTITY] accepted the bribe with knowledge and intention. According to the counsel, the evidence of complainant about the demand of bribe was not reliable, as it suffered with infirmity of inconsistencies, discrepancies and material omissions. Counsel placed reliance on [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], Smt. [PRECEDENT] and [PRECEDENT].
12. On the other hand, learned Special Public Prosecutor for SPE (Lokayukta) submitted that once it is established that appellant [ENTITY] voluntarily or consciously accepted the money on behalf of another appellant [ENTITY], there was no further burden cast on the prosecution to prove by direct evidence the demand or motive on part of appellants. He further submitted that conviction of appellants was justified due to statutory presumption of [SECTION] of the Act. He justified the conviction of appellants recorded by trial Court. Reliance has been placed on [PRECEDENT] (supra) and [PRECEDENT] (supra), [PRECEDENT], [PRECEDENT] and [PRECEDENT].
[SECTION]. The conviction has been assailed on the ground of sanction. Learned counsel for appellants submitted that as per provisions of [SECTION] of the Act, the sanction is a pre- requisite condition for prosecution and in this case no legal sanction has been accorded. So, prosecution is bad in law. Reliance has been placed on a decision of Apex Court in [PRECEDENT] (supra) in which it has been held that under [SECTION] of the Act sanction is must and where sanction was given on the basis of report made by I.G.and the material collected during investigation was not made available before the sanctioning authority, then it was held that sanction granted was illegal and accused cannot be prosecuted and punished. Reliance has also been placed by the appellants'
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counsel on a decision of Apex Court in [PRECEDENT] (supra) in which it has been held that under [SECTION] of the Act, in case of failure to place before the detaining authority all the relevant materials including the statements recorded by the Investigating Officer, sanction accorded on the basis of report of Vigilance Department was invalid.
Per contra, learned counsel for respondent submitted that prosecution examined [ENTITY] (PW.4), the then Joint Secretary who was appointing and disciplinary authority who accorded sanction vide Ex.P/14. He specifically stated that he accorded sanction having discussion with vigilance cell of Chief Passport Officer and on the report submitted to him. It was suggested to him in his cross-examination that he did not make any enquiry before giving sanction, but, in our opinion, it is not necessary that he should enquire himself. After his satisfaction and on the report of CBI if he accorded sanction, then it cannot be said that legal sanction was not there. [ENTITY] (PW.4) in para 8 of his deposition categorically stated that as per report the money was not recovered from appellant [ENTITY]. So, it cannot be said that report was not a detailed one. From the statement of [ENTITY] (PW.4), it is very much clear that report which was sent to him was not of one or two papers, but it was a detailed report as per para 8 of his deposition. More over this witness [ENTITY] is a Joint Secretary in the Department of Foreign Affairs, Govt. of India and he is appointing and disciplinary authority of appellants. He himself came forward and stated that he had
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accorded the sanction, such sanction cannot be assailed on the ground that he had no authority to give it. So, the decisions in [PRECEDENT] (supra) relied on by the appellants' counsel have no application to the facts of the instant case.
14. In the above circumstances, the main question before this Court for deciding the guilt of appellants would be, whether the appellants accepted or obtained the aforesaid sum from complainant (PW.2) by way of illegal gratification for renewal of passport. Whether the defence of appellants that the complainant has concocted a false story of bribe has been proved by the defence and presumption of [SECTION] of the Act is there.
15. Learned counsel for appellants pointed out that complainant himself has admitted that tainted money was provided by CBI so CBI was too much interested in implicating the appellants and there is defence evidence of [ENTITY] (DW.1) that appellants have been falsely implicated due to enmity with the CBI.
Per contra, learned counsel for respondent submitted that [ENTITY] (DW.1) has not named any specific officer and allegations are general in nature. The controversy cannot be an enmity for false implication. Even otherwise the complainant has specifically resiled from the statement that money was provided by the CBI. He stated that Rs.1,500/- were with him and tainted money of Rs.500/- belonged to him and he provided the money not the CBI.
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16. Learned counsel for appellants vehemently argued that no demand has been proved by the prosecution. On the other hand, learned counsel for respondent submitted that as per version of [ENTITY] (PW.2) first he was approached by appellant [ENTITY] ,and [ENTITY] went to appellant [ENTITY] and after talking him, he came back and demanded Rs.500/- extra from the complainant [ENTITY]. On this, [ENTITY] went to talk to [ENTITY] , and [ENTITY] told him that he had instructed [ENTITY] and asked the complainant to give Rs.500/- to [ENTITY], then only in the evening passport will be given. So, it cannot be said that demand was not there. There is clear evidence of demand.
17. Learned counsel for appellants submitted that no bribe was taken and no recovery is there from [ENTITY], and [ENTITY] is not the authority who has to do anything with the renewal of passport. He submitted that there is no corroborative evidence of shadow witnesses Capt.[ENTITY] (PW.3) and [ENTITY] (PW.5) that money was given to [ENTITY] before them.
Per contra, learned counsel for respondent submitted that though Capt.[ENTITY] (PW.3) and [ENTITY] (PW.5) did not specifically state that money was handed over to [ENTITY] before them, but they have stated that though they were not near the complainant and [ENTITY], but when these witnesses and CBI team reached at the spot and [ENTITY] was caught, then tainted currency notes were recovered from the back pocket of his pant.
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18. Reliance has been placed by respondents on [PRECEDENT] (supra) wherein it has been held that under [SECTION] of the Act co-accused taking tainted money on asking of accused beforehand talk ensued between complainant And accused only, bribe money with complainant meant to pass on the accused at restaurant of co- accused as it was convenient place for him, acceptance of money by the accused must be held to have been established, accused cannot be held to have been not guilty on ground that he did not actually receive money.
Reliance has also placed by the respondent on [PRECEDENT] (supra) wherein it has been held that under [SECTION] and [SECTION] of the Act, in a trap case, allegations were that accused officer and his junior assistant working in commercial tax department demanded and accepted bribe amount of Rs.300/- from complainant, a dealer in grocery articles for way bills, evidence showing that accused officer directed money to be paid to his junior assistant, evidence of complainant and trap witnesses established recovery of money from accused junior assistant, involvement of both accused established by prosecution evidence, presumption can be raised that accused persons accepted illegal gratification. Defence plea that amount was paid towards tax was held to be not tenable as there was no tax due and on contrary complainant was entitled to some refund, conviction of accused persons was held to be proper. It has also been held that under [SECTION] of the Act illegal gratification, acceptance of by public servant, presumption under [SECTION] of the Act is a presumption of law
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and cast an obligation on Court to operate it in every case brought in, it is rebutted by proof and not by explanation which may seem to be plausible.
The facts and circumstances of the present case are similar to the above case laws. In the present case also the demand was made by accused persons and it was said by [ENTITY] that Rs.500/- be handed over to [ENTITY] and then only the renewed passport will be given to complainant for which [ENTITY] consented.
19. Learned counsel for appellants submitted that so far as handing over of the tainted money to appellants is concerned, there was only evidence of complainant [ENTITY] (PW.2). No other witness saw the handing over of the money. According to prosecution, though Capt. [ENTITY] (PW.3) and [ENTITY] (PW.5) accompanied complainant as shadow witnesses, but they did not support the prosecution case on the point of handing over the money to [ENTITY]. Counsel submitted that evidence of complainant as a sole witness of transaction of handing over the money to accused was not reliable. He cited case of [PRECEDENT] (supra) wherein the Apex Court observed that in a bribery case payer's testimony carries little conviction in the absence of re-assuring support. In case of [PRECEDENT] (supra) while examining the evidentiary value of the evidence of complainant, the Apex Court observed that complainant is in no better position than an accomplice and the corroboration of his evidence in material particulars was necessary. In case of Smt.
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[PRECEDENT] (supra) the Apex Court held the evidence of complainant untrustworthy in view of contradictory version of the incident given by him when he was examined in the departmental proceedings and also on the ground that the shadow witness, who accompanied complainant, did not support the prosecution case.
20. Learned counsel for appellants placed reliance on [PRECEDENT] (supra) in which it has been held that mere recovery of tainted money from accused when substantive evidence is not reliable by itself is not enough to prove the case and presumption under [SECTION] of burden of proof on accused is not the same as the burden placed on prosecution to prove case beyond reasonable doubt. He has argued that mere recovery of money from [ENTITY] is not sufficient in absence of demand.
21. Evaluating the nature of explanation offered by the appellant, the Apex Court in case of [PRECEDENT] (supra) observed that mere receipt of money by the accused from the complainant (admitted by the accused) will not be sufficient to fasten guilt under [SECTION] or [SECTION] of the Act in the absence of any demand and acceptance of amount as illegal gratification. If the amount had been paid as lease rent arrears due to the temple or even if it was not so paid, but the accused was made to believe that the payment was towards lease rent due to the temple, he could not be said to have committed any offence. If the reason for receiving the amount is explained and the explanation is probable and reasonable, then the accused
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had to be acquitted. The Apex Court approved the proposition laid down in the decision of [PRECEDENT] (supra) holding that explanation, though not offered immediately, but given only in the statement under [SECTION] [ACT] can also be accepted. It was held that "it is too well settled that in a case where 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 accused is not required to establish his defence by proving beyond reasonable doubt as prosecution, but can establish the same by preponderance of probability."
22. In [PRECEDENT] the Apex Court held that burden that rests on an accused to displace the statutory presumption i.e. raised under [SECTION] of the [ACT] is not onerous as that casts on the prosecution to prove its case. But such burden has to be discharged, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability that money was accepted by him than as a motive or reward as is referred to in [SECTION] of [ACT]. In case of [PRECEDENT] (supra), Apex Court accepted the explanation given by the appellant immediately after the incident holding that it clearly explains all the circumstances and raises not only a serious but very serious doubt about the amount having been received by him as an illegal gratification.
23. In case of [PRECEDENT], the Apex Court held that in a case of
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bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when substantive evidence in the case is not reliable.
24. As far as recovery of tainted money is concerned, there is clear cut evidence that tainted money was recovered from [ENTITY] and phenolphthalein test was positive as per statements of [ENTITY] (PW.2), Capt. [ENTITY] (PW.3), [ENTITY] (PW.5) and [ENTITY] (PW.6). No reasonable and plausible explanation has been given by [ENTITY] as to recovery. He has only stated that no recovery was made from him, while tainted money has been recovered from him. As such with due respect to the above propositions laid down by the Apex Court, we find that the facts of the case at hand are different and distinguishable. Here, two shadow witnesses Capt. [ENTITY] (PW.3) and [ENTITY] (PW.5) were examined in the Court and they have supported the prosecution case, and recovery of tainted money was corroborated by [ENTITY] (PW.2) complainant, Capt. [ENTITY] (PW.3), [ENTITY] (PW.5) and [ENTITY] (PW.6). The fact remains that appellant [ENTITY] accepted the tainted money.
25. Learned Special Public Prosecutor submitted that in [PRECEDENT] (supra), in the context of "obtains the pecuniary advantage" in [SECTION] and [SECTION] of the Act, the Apex Court held that once the accused comes into possession of the tainted money, the only inference is that he accepted the same and thus
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"obtained" the pecuniary advantage. In our opinion, the above proposition pertained to a particular situation under which it could be held that the accused came to hold and/or came in control of the tainted money. It has further been explained by the Apex Court in Para-7 of the decision that whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances in each case. In the case of [PRECEDENT] (supra) , it was proved that the accused made a demand and also got the affirmation from other witness that he had brought the demanded money. In case of [PRECEDENT] (supra), the Apex Court held that every acceptance of "illegal gratification" whether preceded by a demand or not, would be covered by [SECTION] of the Act, but if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under [SECTION] of the Act.
In case of [PRECEDENT] (supra), the Apex Court held that when it is proved that there was voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case, but in paragraph 11 of the same decision the Apex Court clarified that there was no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect. When an amount is found to have been passed to public servant, the burden is on public servant to establish that it was not by way of
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illegal gratification. Thus, from the above propositions, it appears essential to examine whether appellants received, accepted or obtained the money by way of illegal gratification or bribe.
26. In the case of [PRECEDENT] (supra), the Apex Court observed that when it is proved that there was a voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. In cases of [PRECEDENT] and [PRECEDENT] Apex Court held that when amount is found to have been passed to public servant, the burden is on public servant to establish that it was not by way of illegal gratification. If this burden was not discharged, it was to be presumed that he accepted the money as illegal gratification.
27. On due consideration of the facts and circumstances of the instant case, the trial Court has convicted and sentenced appellant no.1 under [SECTION] for taking gratification other than legal remuneration in respect of an official act by a public servant, and [SECTION] read with [SECTION] of the Act for criminal misconduct by a public servant, and appellant no.2 has been convicted and sentenced under [SECTION] for abetment of offence , and under [SECTION] read with [SECTION] of the Act for criminal misconduct by a public servant. The findings of conviction recorded by the trial Court
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are found to be proper and call for no interference in these appeals. We find it was established that demand of bribe and acceptance was there. As such we hold that no interference is called for in the impugned judgment in these appeals and affirm the judgment of conviction and sentence of the learned trial Court. Both the appeals are dismissed. The appellants are on bail. Their bail is cancelled. They shall surrender forthwith to serve out the remaining sentence.
28. A copy of this judgment be placed in record of [CASE NUMBER].
([ENTITY]) ([ENTITY]) Judge. Judge. Jk.