HIGH COURT OF MADHYA PRADESH : JABALPUR DB : Hon. Rakesh Saksena & Hon. M.A. Siddiqui, JJ. Criminal Appeal No.3435/1999 M.L. Chourasia, Son of Shri Premnarayan, Sub-Engineer, B.D.O. Sohagpur/Shahdol aged about 47 years, resident of Karrapur District-Shahdol M.P. Vs. The State of Madhya Pradesh Through – Special Police Establishment, Lok Ayukt Office, Bhopal, Madhya Pradesh Shri S.C. Datt, Sr. Advocate with Shri Siddharth Datt, Adv. for the appellant. Shri Aditya Adhikari, Special Public Prosecutor for SPE Lokayukta. JUDGMENT RESERVED ON 11/08/2011 JUDGMENT DELIVERED ON 24/08/2011 J U D G M E N T As Per : M.A. Siddiqui, J. This appeal has been preferred by the appellant against the judgment dated 21.12.1999 of Special Judge, Shahdol in Special Case No. 1/94 whereby the appellant has been convicted for alleged offence punishable under Section 7 and Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”) and sentenced to R.I. for five years and fine of Rs.5,000/-, in default of payment of fine to further undergo R.I. for one year . 2. In short, the facts of the case are that appellant was posted as Sub- Engineer in Aadiwasi Block Office, Sohagpur district Shahdol where complainant Bhanupratap Singh (PW 6) was Sarpanch of village Jamui of PS Shahdol District Shahdol. Panchayat was allotted work(contract) of building 25 Kutir Cottages under Indra Awas (development) worth Rs.2,50,000/- for upliftment of poor persons which was given by Block Development Officer (in short B.D.O.). The work was to be supervised and verified by Sub-Engineer, the appellant (M.L. Chourasiya). It is alleged that the work was completed and Rs.65,000/- (Rs.Sixty five thousand only) was out standing which was not paid to Gram Panchayat Jamui by B.D.O. S.K. Pandey (since dead) and the appellant Sub-Engineer. S.K. Pandey and appellant demanded Rs.30,000/- (Rs.thirty thousand only) bribe for disbursement of the unpaid amount Rs.65,000/-. The complainant requested that he had worked with honesty and there was no saving, however, he agreed to give Rs.20,000/- to both i.e. Rs.10,000/- to each. Meanwhile the appellant stated that he had to prepar measurement book etc. so, he will charge extra money of Rs.5,000/-, as bribe. The complainant Bhanupratap Singh was not willing to give bribe. In the meanwhile it came to his knowledge that on 7.12.1991 at Circuit House Shahdol vigilance party had arrived, so, he with his companion Kapoorchand Katare (P.W.3) approached to the vigilance party where the complainant gave an application Ex.P/1 in writing and requested to do needful. Shri K. L. Mishra (PW 8) Dy. Superintendent of Special Police Establishment (in short ‘police’), entertained the application and called Shri M.K.Ghosh (PW 1) Dy. Director-cum-Treasury Officer to witness the trap. Shri M.K.Ghosh (PW 1) visited the circuit house Shahdol. He was introduced with complainant, who had given written complaint Ex.P/1. K. L. Mishra (PW 8) enquired from complainant and when he satisfied himself then Shri J.P. Ahirwar (PW 10) Town Inspector SPE Lok Ayukta, Rewa was given task of raid. Shri J.P. Ahirwar (PW 10) obtained Rs.25,000/- in denomination of Rs.100/- notes from the complainant and numbers of the notes were noted down on a paper and phenolphthalein powder was applied on the notes and handed over to him (complainant). Notes of Rs.15,000/- were to be given to M.L.Chourasiya and Rs.10,000/- to S.K.Pandey B.D.O. He was strictly warned not to touch notes, before giving the same to the accused, for which panchnama Ex.P/3 was prepared then he was asked to give the signal to trap party. 3. Trap party started to go in jeep and complainant Bhanu Pratap Singh and Kapoorchand Katare, Mr M.K.Ghosh etc. went to circuit house. From circuit house complainant and Kapur Chand Katare went by scoter to BDO Office. After some time Bhanupratap Singh and Kapoorchand Katare were apprised by the officials that B.D.O. was not in the office he was busy in the meeting with S.D.O. so they were asked to wait till evening. In the evening at 6.00 O’clock Kapoor Chand Katare informed the trap party that he with complainant Bhanupratap was going to the house of appellant M.L.Chourasia, as per instructions of appellant where he (M.L.Chourasia appellant) will take money so they went at the house of appellant M.L.Chourasia and complainant gave Rs.15,000/- to appellant M.L.Chourasia. appellant M.L.Chourasia kept Rs.15,000/- in drawer of table kept in Verandah of his house and locked it and took complainant to B.D.O. office to give his amount for preparation of the cheque of unpaid amount Rs.65,000/- Thereafter S.K.Pandey was given Rs.10,000/. Since S.K.Pandey has expired his details are not required. 4. After the trap of S.K.Pandey, the appellant was asked to give key of drawer where he had kept the bribe money. He gave key to J.P.Aharwar (PW 10). Trap party reached at the house of appellant and M.K. Ghosh (PW 1) was asked to unlock the drawer and thereafter tainted currency notes of Rs.15,000/- were found in which 150 notes were of Rs.100/- denomination. Their numbers were tallied with the Preliminary Panchanama Ex.P/3. Ex.P/5 seizure memo/ panchanama of notes was prepared. They were washed with the solution of sodium carbonate which turned pink. Hands of appellant were washed with sodium carbonate solution which turned into pink and it was seized vide Article “H”. Hands of M.K. Ghosh ( PW 1) were washed with sodium carbonate solution which also turned pink the liquid was seized vide Article “K”. Bottles of liquid and currency notes were seized and they were sealed in envelop. During investigation cheque book, file and register were seized from B.D.O. office and Ex.P/4 Panchanama was prepared. Dehati Nalisi was prepared vide Ex.P/10 and it was sent for registration and it was registered vide Ex.P/13 by SPE Lokayukta. Trap panchnama was prepared and documents were seized. Appellant was arrested and was released on bail. 5. After usual investigation and obtaining requisite sanction Ex.P/9 from the competent authority, charge-sheet was filed in the Court of Special Judge, Shahdol. 6. On charges being framed, appellant pleaded false implication. His defence, as per his statement under Section 313 of Cr.P.C., is that complainant was Sarpanch of Gram Panchayat Jamui against whom a recovery of Rs.65,000/- was recommended by the appellant hence he got annoyed. With the help of his companion Kapoorchand Katare the complainant falsely implicated appellant. The appellant had measured the work and case was already put up for payment. 7. Prosecution examined 10 witnesses to establish its case viz., M.K. Ghosh Treasury officer (PW.1), Vindheshwari Singh (PW.2) accountant Block Office Sohagpur, Kapur Chand Katare (PW 3) Shadow witness, Mahesh Soni (PW 4) clerk BDO Sohagpur, Ratandeep Gupta Gr.IInd clerk Janpat Panchayat Sohagpur (PW.5), Bhanupratap Singh (PW 6) Complainant, Atrimuni Tiwari (PW 7) Constable who applied sodium carbonate solution to notes, K.L. Mishra (PW 8) Ex. Dy. Supdt. police incharge trape party, Deenanath (PW 9) Assistant Gr.I clerk Law and Legislature dept. Bhopal for sanction and J.P.Aharwar (PW 10) Inspector/Officer Trap who led trap party. 8. Appellant, to substantiate his defence, examined Dinesh Chand Gupta (DW 1), V.K.Jain (DW 2) Executive Engineer, Sudhir Nigam (DW 3), Pannalal Jaiswal (DW 4) and Rajesh Kumar Singhai (PW 5). 9. We have heard learned counsel for the parties. 10. It was no longer disputed that at the relevant time, appellant was working as Sub Engineer in B.D.O. Sohagpur district Shahdol, as such, he was a public servant and it has further been proved by Mahesh Soni (PW.4) who says that appellant was posted in Block Sohagpur vide order Ex.P/7 and his services were transferred in the office of BDO, Sohagpur district Shahdol. Vindheshwari Singh (PW.2) says that appellant was Sub- Engineer in Block office whose work was to supervise the work done by Sarpanch under the aforesaid scheme. V.K.Jain (DW 2) Executive Engineer says that appellant was posted as Sub Engineer in Block office Sohagpur. Appellant himself admitted in his statement u/s 313 Cr.P.C that he was posted as Sub Engineer on 7.12.1991. So, it is very much clear that the appellant was public servant. 11. As far as sanction vide Ex.P/9 against the appellant is concerned, it is proved by Deenanth (PW.9) that valid sanction vide Ex.P/9 was accorded by the then Addl. Secretary S.C.Gupta (Law Department), Bhopal to prosecute him under Section 7 and Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988. Even otherwise, learned counsel for appellant has not challenged the validity of sanction accorded by Additional Secretary (Law Department) Bhopal, M.P. State Government. 12. Bhanu Pratap Singh (PW 6) says that from 1989 to 1994 for a period of five years he was elected Sarpanch of gram panchayat Jamui village block Sohagpur district Shahdol. In his tenure S.K.Pandey ( since dead) was B.D.O and appellant M.L.Chourasia was Sub Engineer in block Sohagpur district Shahdol. In the year 1990, certain work was given to the Panchayat Jamui. Under the scheme of Indra Awas Yojna for development and upliftment of poor persons, 25 Kutir Yojna (Small Scale work) and development work for Rs.2,50,000/- was entrusted to him as Sarpanch. The work was to be done under supervision and verification of appellant M.L. Chourasia. After work out of Rs.2,50,000/- only Rs.1,85,000/- was paid to him and remaining amount of Rs.65,000/- was unpaid. For realization of unpaid amount, Rs.30,000/- was demanded as bribe by the then BDO and the appellant both. Though he was not willing to give bribe because he had worked honestly and there was no saving, however, at last he agreed to pay Rs.20,000/- to both i.e. B.D.O. S.K. Pandey (since dead) and appellant Sub-Engineer (M.L. Chourasia). Appellant told to complainant that since he had to prepare Measurement book etc. so he would charge extra Rs.5,000/-. Both persons asked complainant to bring money on 7.12.1991 in next week. 13. Complainant Bhanu Pratap Singh (PW 6) further says that he was not willing to give bribe, when it came to his knowledge that on 7.12.1991 some vigilance party has arrived in circuit house then he alongwith Kapoor Chand visited them and gave an application to the officer Shri K.L. Mishra (PW 8) vide Ex.P/1. Shri K.L. Mishra (PW 8) inquired from him and then he talked to Collector Shahdol on phone and the Collector sent Treasury Officer M.L. Ghosh at Circuit House. The complainant, Kapoor Chand and other witnesses were introduced to Treasury Officer M.L. Ghosh by J.P.Aharwar (PW 10) Inspector/Officer Trap. Both the persons i.e. the complainant, and his companion Kapoor Chand were called by Treasury Officer M.L. Ghosh and were questioned by him. After reading the complaint Ex.P/1 when he satisfied himself then trap was arranged. 14. This witness, the complainant further says that he tendered Rs.25,000/- in three Gaddis( bundles). In Two bundles 100 notes in denomination of Rs.100/- each i.e. Rs.10,000/- each and one bundle of 50 notes in denomination of Rs.100/- each i.e. Rs.5,000/-. Numbers of the aforesaid notes were noted down. In all these notes phenolphthalein powder was applied by Atrimuni Tiwari (PW 7) and complainant and other witnesses were made to understand the trap proceedings. Then sodium carbonate solution was prepared and hands of present persons, other than complainant, M.K. Ghosh, Kapoor Chand and except one member of vigilance party were washed in the sodium carbonate solution the colour of solution remained white then hands of Atrimuni Tiwari were washed in sodium carbonate solution then colour of solution was turned into pink. The aforesaid notes of Rs.15,000/- were kept in one pocket and Rs.10,000/- were kept in another pocket of Kurta of the complainant. He was warned not to touch them except when he gave them to the concerned accused. Then he was allowed to go with Kapoor Chand with the instructions to give signal to the trap party after acceptance of bribe money by the concerned. Trap proceedings were recorded vide Ex.P/3. Complainant further says that he and Kapoor Chand started separately and trap party came afterwards. The complainant approached the appellant who said that BDO was not available and that he will take money afterwards. He was asked to come in evening. This witness further says that this thing he informed to the trap party. In the evening at about 6 p.m. when this witness and Kapoor Chand reached to the appellant in office, the appellant asked him to accompany him to his house where he would take money then he said to Kapoor Chand to inform it to the trap party. He further says that appellant started on his motor-cycle from BDO office and he started on Scooter and Kapoor Chand followed them to the house of appellant. Appellant took this witness to his house and asked for money. On his asking the complainant from his one pocket took out two gaddies (bundles) of currency notes of Rs.10,000/- and Rs.5,000/- respectively and gave Rs.15,000/- to appellant. The appellant kept the money in drawer of table( lying in the verandah of his house) and locked and kept key with him. Then he was asked to accompany him to BDO office. In the meanwhile complainant gave signal to Kapoor Chand to inform the fact to Trap Party that bribe money was accepted by the appellant from complainant. 15. This witness further says that he was taken to BDO office by the appellant. BDO was there in the office. When he reached before Shri S. K. Pandey BDO, complainant demanded his cheque for unpaid money, Shri S. K. Pandey asked him whether he brought the demanded money of bribe complainant told that he had brought the bribe money. He wanted to give him the money then BDO said that he will take the money at the time when he proceed to his house. In the meanwhile BDO instructed the clerk to prepare the cheque and BDO came out then complainant gave one bundle of Rs.100/- each, notes of 100 in denomination i.e. Rs.10,000/- to Shri S.K. Pandey which was taken by him in left hand, in presence of witness then signal was given to trap party then Shri S. K. Pandey kept the bundle of notes in his left side with his bag. After seeing signal vigilance party came at the spot and caught hold Shri S. K. Pandey with the bundle of notes but at that point of time Shri S. K. Pandey threw the bundle of notes on the ground. His further details are not necessary as S.K.Pandey died before commencement of the trial. 16. The appellant was detained by vigilance party and was asked about bribe money, he kept mum for some time, thereafter he admitted the fact of taking money and said that money had been kept in drawer of table in the verandah of his house and handed over the key of drawer to J.P.Aharwar (PW 10). This witness further says that hands of the appellant were washed with sodium carbonate solution the colour of solution was turned pink. M.K.Ghosh recovered tainted notes of Rs.15,000/- from the drawer of table of the appellant’s house at his verandah The hands of M.K.Ghosh were also washed with sodium carbonate solution the colour of solution was also turned pink.. The notes were washed with sodium carbonate solution the colour of solution was turned pink then the notes were seized vide Ex.P/5 and Trap Panchanama was prepared vide Ex.P/4 . 17. Kapur Chand Katare (PW 3), M.K. Ghosh (PW 1) and J.P.Ahirwar (PW 10) supported the version of complainant in toto and learned trial court accepted their evidence and recorded the finding of conviction as aforesaid. 18. Against this evidence learned counsel for the appellant has submitted that appellant has been falsely implicated in the case. He submitted that on 29.11.97 an application/memo (Ex.D/9) was sent by appellant to BDO that complainant was harassing him as there was recovery of Rs.65,000/- (Notice vide Ex.D/3-A dated 25.11.1991), against him and complainant threatened him for false implication in some case. This document has been exhibited by Ratandeep Gupta (PW 5) Gr.IInd clerk Janpad Panchayat Sohagpur. 19. Learned counsel for the State submitted that this witness was initially examined on 16.8.1991 and on 25.11.1991, at the time of closing of defence, this witness was again called and re-examined in which he disclosed the fact that such type of statement was there. Ratandeep Gupta (PW 5) in his cross-examination has admitted that he is a Gr. IIIrd clerk and Smt. Kamla Chaturvedi is dispatched clerk in the office. She came after his arrival in the office. He reached in office before time and received the application. It seems that Ratandeep Gupta (PW 5) who is a clerk of department has tried to create Ex.D/9 . Even from reading of the application it is clear that it was addressed to BDO. So it seems that this copy ought to have been sent to SDO Shahdol No.1 and not to BDO so prima facie it seems that it has been concocted. 20. As far as defence evidence is concerned, Dinesh Chand Gupta (DW 1) and Rajesh Kumar Singhai (DW 5) say that sodium carbonate and phenolphthalein powder was purchased vide Ex.D/8 and Ex.D/10 respectively. For what purpose these things were purchased it was not brought forward. It seems that it might be an after thought defence to meet FSL report as there is positive report from FSL vide Ex.P16. 21. Learned counsel for the respondent submits that for the test of phenolphthalein, report of FSL is positive against the appellant. There is clear evidence of J.P.Ahirwar (PW 10) that these solutions were sent for chemical examination vide Ex.P/14 which were received vide Ex.P/15 and there is positive report of FSL vide Ex.P/16. Presence of phenolphthalein powder in the solution of washing of hands of appellant and notes is thus confirmed. 22. As far as statements of Sudhir Nigam (DW 3) and V.K.Jain (DW 2) are concerned, Sudhir Nigam has categorically stated that appellant was his tenant in a rented premises. So far as suggestion that verandah in which table was kept may be accessible to other persons, as money was kept in lock and key was with the appellant, the fact that verandah was accessible to other persons has no importance. As per statement of V.K.Jain (DW 2) is concerned, he says that appellant has said to him that there was recovery against complainant Bhanupratap Singh and Bhanupratap Singh threatened appellant, the fact that cheque was prepared and was handed over in presence of trap party to the complainant renders the fact of recovery doubtful. 23. Learned counsel for appellant submitted that key had not been seized and no lock was recovered so the fact of keeping money in the drawer of table in lock is doubtful. But there is clear evidence not only of complainant Bhanupratap Singh but of M.K.Ghosh (PW 1) and J.P. Ahirwar (PW 10) that there was recovery of tainted amount of Rs.15,000/- from the drawer of appellant. 24. Learned counsel for appellant submitted that the alleged money was given to the appellant in the evening and it was recovered at about 9 O’clock in the night so this story of prosecution is doubtful. For this J.P. Ahirwar (PW 10) has given very plausible explanation in para 23 of his cross-examination that as BDO S.K. Pandey was to be trapped so initially even by getting information that appellant has accepted money he was not caught forthwith as BDO was also to be trapped. 25. Learned counsel for appellant further submitted that Kapur Chand Katare (PW 3) is a personal friend of complainant hence he is not an independent witness and his evidence and the evidence of M.K.Ghosh (PW 1) is not reliable. He placed reliance of decision rendered by the Apex Court in G.V.Nanjundiah vs. State (Delhi Administration) AIR 1987 SC 2402 and Darshan Lal vs. The Delhi Administration (1974) 3 SCC 595, and learned trial Court has committed error in accepting their evidence. 26. Learned counsel for State supported the impugned judgment rendered by learned trial Court and submitted that transfer of money has been proved and FSL report is positive which has further corroborated the prosecution case. He placed reliance on a judgment dated 21.05.2010 rendered by a Division Bench of this Court in Criminal Appeal No. 1816/2001 (Ravindra Kumar Ganvir vs. State of M.P.). He contended that evidence of Kapur Chand Katare (PW 3) can not be discarded and evidence of M.K.Ghosh (PW 1) who is treasury officer can not be doubted. The appellant has taken general defence. He has not specifically denied that no bribe money was recovered from him. He placed reliance of decision rendered by the Apex Court in M.W. Mohiuddin vs. State of Maharashtra (1995)3 SCC 567. in which it has been held that once the accused comes into possession of the tainted money the only inference is that he accepted the same and thus obtained the pecuniary advantage meaning thereby the ingredients for alleged offence punishable under Section 7 and Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 is there. He further placed reliance of decision rendered by the Apex Court in Ramesh Kumar Gupta v. State of M.P. (1995) 5 SCC 320 in which it has been held that for the evidence of bribe giver corroboration need not be direct. It can be by way of circumstantial evidence also where tainted money wrapped in a paper found under the mattress of the cot. Briber giver stating that the accused had asked him to keep the money under the mattress. Phenolphthelein powder test regarding washing of the hands of the accused giving positive result showing that the accused must have handled them at some stage. Fact that the complainant borrowed money for payment indicating that it was not a case of false implication. Held in the circumstances of the case, prosecution has proved its case beyond all reasonable doubt. He further placed reliance of decision rendered by the Apex Court in State of U.P. vs. Zakaullah (1998) 1 SCC 557 in which it has been held that testimony of bribe giver can not be rejected merely because he is aggrieved by the conduct of the accused. However, his evidence requires scrutiny with great care. Complainnt/bribe giver testimony can not be rejected outright at the most it needs scrutiny with great care. 27. Learned counsel for State placed reliance of decision rendered by the Apex Court in B. Noha vs. State of Kerala and another (2006)12 SCC 227 wherein it has been 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 and appellant accused found guilty of offences punishable under section 7 and 13 (1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988. On facts that accused, a public servant, allegedly demanded and accepted illegal gratification from PW 1. Before the trial Court accused denying the charge leveled against him in a statement made under Section 313 Cr.P.C.. Trial Court finding the evidence of PWs 1 and 2 credible and cogent, , held the accused guilty by mainly placing reliance on their evidence. Before High Court the trial Court’s judgment was primarily attacked on the ground that PWs 1 and 2 were interested witnesses and their evidence should have not been accepted. Held, there isno substance that evidence of PW 1 is the evidence of an interested witness. There is no basis for PW 1 to falsely implicate the accused. Evidence on record clearly shows why the illegal gratification was demanded and accepted by the appellant. Evidence of PW 1, thus, does not suffer from any infirmity to warrant interference.. Moreover, evidence of PW 2 is also clear, credible and cogent. Conviction upheld. 28. Learned counsel for State further placed reliance of decision rendered by the Apex Court in Kanshi Ram vs. State of Punjab (2005) 12 SCC