1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (DIVISION BENCH: HON. MR. JUSTICE S.K. SETH & HON. MR. JUSTICE PRAKASH SHRIVASTAVA) Criminal Appeal No.984/1998 Vijay Kumar S/o Nandkishore, Aged - 25 years, Occ. - Service, R/o - 40/1, Kishanpura, Ujjain (M.P.) .... Appellant Vs. State of Madhya Pradesh Through Special Police Establishment, Lokayukt Office, Ujjain. .... Respondent ------------------------------------------------------------------------------- Criminal Appeal No.985/1998 Krishnakant Choubey S/o Prabhudayal Choubey, Aged - 35 years, Occ. - Service, R/o - G/1, Mahakal Police Colony, Ujjain. .... Appellant Vs. State of Madhya Pradesh Through Special Police Establishment, Lokayukt Office, Ujjain. .... Respondent ------------------------------------------------------------------------------- Shri Sachin Bhatnagar and Shri T.C. Jain, learned counsel for the appellants. Shri Anand Soni, learned counsel for the respondent. ------------------------------------------------------------------------------- Whether approved for reporting:- JUDGMENT (Delivered on 11/7/2011) 2 Per Prakash Shrivastava, J :- 1/ This judgment will govern the disposal of Criminal Appeal No.984/1998 and 985/1998, which have been filed by the appellants Vijay Kumar and Krishnakant Choubey respectively against the common judgment dated 4.8.1998 passed by the Special Judge (Prevention of Corruption Act), Ujjain in Special Trial No.1/95, convicting the appellant Krishnakant Choubey for offence under Section 7, 13(1)(d) read with S.13(2) of the Prevention of Corruption Act (for short “PC Act”) and appellant Vijay Kumar for offence under Section 13(1)(d)(1) read with S.13(2) of the PC Act. Each of the appellant has been awarded sentence of 2 years' RI for offence under Section 13(1)(d) read with S.13(2) of the PC Act and the appellant Krishnakant Choubey has also been awarded sentence of RI for two years with fine of Rs.1,000/-, in default six month's RI for offence under Section 7 of the PC Act. 2/ Prosecution story, in brief, is that PW-2 Satyanarayan and PW-3 Jitendra Raikwar had opened a stall in 'Kartik Mela' Ujjain in 1993 for selling the cutlery items through lucky draw scheme, in which the price was given by calculating the numbers 1 to 6 mentioned on the back side of the Keram striker. The appellant Krishnakant Choubey demanded money from 3 complainant Satyanarayan for running the stall in the Mela on the pretext that the act of the complainant amounts to gambling and he will close his stall. Satyanarayan paid him Rs.2,000/- but on being demanded Rs.1,000/- more, complainant approached the Lokayukt Police Establishment, Indore and made a complaint. He was given a tape recorder and was accompanied by a constable for recording the conversation with Krishnakant Choubey. On the basis of the tape recorded conversation, necessary formalities were completed and two gazetted officers namely PW-1 Abdul Sattar, Addl. District Excise Officer and PW-5 Rao Saheb Sanone, Executive Officer District Antya Vyavsayi Corporation Nigam were appointed as Panch witness to participate in trap. A preliminary Panchnama was prepared and complainant Satyanarayan was given the powder coated note and trap party proceeded to Ujjain. At Ujjain when Satyanarayan met appellant Krishnakant Choubey, he refused to take money and asked Satyanarayan to give the money to Vijay Kumar. Satyanarayan gave an amount of Rs.1,000/- to Vijay Kumar at Badnagar crossing and Vijay Kumar was caught by the trap party. The powder coated note were recovered from him and when the hands of Vijay Kumar were put in the sodium carbonate solution, the solution turned pink. After completing the 4 formalities the Challan was filed against the appellants. Appellants were charged for committing the offence under Section 13(1)(d) read with S.13(2) of the PC Act. The charge framed against Krishnakant Choubey was later on amended and the offence under Section 7 of the PC Act was added. 3/ The prosecution, in order to prove the guilt, had examined Abdul Sattar (PW-1) and Rao Saheb Sanone (PW-5) as the panch witnesses, (PW-2) Satyanarayan, the complainant, PW-3 Jitendra Raikwar, partner of the complainant, PW-4 Rajkumar, in whose presence the alleged demand was made and PW-6 Dinesh Jain, the Investigation Officer. The appellants examined DW-1 Nathulal Hiralal, DW-2 Ramcharitra Dubey and DW-3 G.G. Pandey in defence. 4/ Trial Court by the impugned judgment held the appellants guilty of the offences mentioned above and sentenced them accordingly. 5/ Learned counsel appearing for the appellants submitted that the demand and acceptance of illegal gratification by the appellants is not proved and that on the basis of the evidence on record, the conviction of the appellants for the alleged offences is not sustainable. He further submitted that the presumption under Section 20 has wrongly been raised for 5 offence under Section 13(1)(d) of the PC Act. 6/ Learned counsel appearing for the respondent has supported the judgment and submitted that the appellants have been rightly convicted for the offences in question. 7/ We have heard the learned counsel for the parties and perused the record. 8/ So far as the legal position in respect of the offence under Section 13(1)(d) is concerned, the Supreme Court in the matter of Subash Parbat Sonvane V. State of Gujarat reported in 2002 Cri.L.J. 2787, has held that mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d). In the matter of A. Subair V. State of Kerala reported in 2009 Cri.L.J. 3450, Supreme Court has taken the view that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage by the public servant meaning thereby in the absence of proof of demand or request by the public servant for valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established. This Court also in the matter of Sushil Kumar Jain V. State of M.P. reported in 2006(4) MPHT 247 has held that the demand of bribe by the accused is essential ingredient of 6 the offence under Section 13(1)(d) of the Prevention of Corruption Act. 9/ Examining the present case in the light of the aforesaid position in law, it is noticed that none of the witnesses, except PW-2 Satyanarayan, has stated that any demand of money was made by the appellants in their presence. Satyanarayan is the complainant and is the accomplice. In terms of the judgment of the Supreme Court in the matter of M.O. Shamshuddin V. State of Kerala reported in 1995(2) Crimes 282 Satyanarayan being a bribe giver, his evidence is to be scrutinized very carefully. The courts are vested with discretion to accepted the uncorroborated statement of such a witness but that discretion is to be exercised in sound and reasonable manner. Whether in a particular case such an uncorroborated statement has to be accepted or not, depends upon overall consideration of the accomplices' evidence and the facts and circumstances. 10/ In the present case, PW-2 Satyanarayan has stated that appellant Krishnakant Choubey had demanded money from him on the pretext that he was involved in gambling. Satyanarayan has stated that this demand was made by Krishnakant Choubey in the presence of Rajkumar. Rajkumar has been examined as PW-4 but he has not supported the 7 prosecution case and has said that he was standing outside the police station and he did not know as to what had transpired inside the police station. PW-2 Satyanarayan has also admitted that at the time of trap when he had met Krishnakant Choubey to give bribe money, Krishnakant Choubey had refused to take it. Whether Krishnakant Choubey had asked PW-2 Satyanarayan to give money to Vijay Kumar? The evidence in this regard is contradictory. According to PW-2 Satyanarayan, Krishnakant Choubey had asked him to give money to Vijay Kumar but PW-1 Abdul Sattar, who is the panch witness, has stated that the officers of the trap party had told Satyanarayan to give money to any constable if Krishnakant Choubey was not taking money. Trial court is not right in disbelieving the part of statement of PW-1 Abdul Sattar only on the ground that he had retired in the meanwhile. None of the witnesses was present along with PW-2 Satyanarayan when he had gone inside the police station to give money to Krishnakant Choubey, therefore, no other witness knows what transpired at that time. 11/ PW-3 Jitendra Raikwar, who was running the stall in the Mela in partnership with the complainant Satyanarayan, has stated that Satyanarayan had never informed him that Krishnakant Choubey was demanding money from him or he had 8 given Rs.2,000/- to Krishnakant Choubey, which creates a doubt on the version of Satyanarayan. 12/ So far as the tape recorded conversation between PW-2 Satyanarayan and appellant Krishnakant Choubey is concerned, its transcript is enclosed with the seizure memo of the tape recorder (Ex.P/3). None of the witnesses have stated that the transcript was prepared in their presence or it was prepared from the untampered tape recorder which was seized or that the tape recorded conversation was in the voice of Krishnakant Choubey. It is also not proved as to who had prepared the transcript. Thus Ex.P/3 is not a relevant piece of evidence for proving the demand. 13/ Similarly PW-2 Satyanarayan, in his complaint (Ex.P/ 2), has stated about the demand of money by Krishnakant Choubey but it is not a substantive piece of evidence, therefore, it does not carry the prosecution case any further. 14/ Thus apart from the bold statement of PW-2 Satyanarayan, there is no other evidence of demand of money by Krishnakant Choubey. The statement of PW-2 Satyanarayan is not corroborated even by PW-4 Rajkumar in whose presence the alleged demand was made and PW-3 Jitendra Raikwar who was running the stall in partnership with the complainant. PW-2 9 Satyanarayan has criminal antecedents and it has also come on record that the alleged incident is of the last day of Mela. At one place he has stated that at the time of trap Krishnakant Choubey, by coming out from the tent, had pointed out as to who is Vijay Kumar but at the other place he has stated that Vijay Kumar had met him outside the Mela ground, two furlong away from the police chowki. He has also admitted that he knew Krishnakant Choubey since one year prior to the incident. Krishnakant Choubey in his statement under Section 313 CrPC has stated that Satyanarayan is a habitual offender and there are several cases registered against him and since Krishnakant was taking action against him, therefore, he has been falsely implicated. Considering the conduct of PW-2 Satyanarayan and nature of his evidence and the other evidence on record, it would not be safe to rely upon his uncorroborated statement in respect of demand of money by Krishnakant Choubey or payment of money to Vijay Kumar on his instruction. 15/ Thus the above analysis establishes that offences under Section 7 and S.13(1)(d) r/w S.13(2) of the PC Act are not proved against appellant Krishnakant Choubey. 16/ So far as appellant Vijay Kumar is concerned, it is not the prosecution case that Vijay Kumar had demanded illegal 10 gratification from PW-2 Satyanarayan. None of the witnesses have stated about demand of illegal gratification by Vijay Kumar. 17/ As per the statement of PW-2 Satyanarayan, appellant Krishnakant Choubey had asked him to give money to Vijay Kumar but as per the version given by the independent panch witness (PW-1) Abdul Sattar when appellant Krishnakant Choubey had refused to take money and Satyanarayan had come out of the police station, the officers of the trap party had asked him to give money to any constable if Krishnakant Choubey was not taking money. None of the members of the trap party had heard Krishnakant Choubey asking PW-2 Satyanarayan to give money to Vijay Kumar. Thus apart from the uncorroborated statement of PW-2 Satyanarayan which can not be relied upon for the reason given above, there is no cogent and reliable evidence on record to establish that money was given by PW-2 Satyanarayan to the appellant Vijay Kumar on the direction of appellant Krishnakant Choubey. 18/ Though the tainted money has been recovered from Vijay Kumar, but there is no evidence on record suggesting that appellant Vijay Kumar had any knowledge that the money given to him was bribe money. Even PW-2 Satyanarayan has not stated that while giving the tainted money to Vijay Kumar, he had told 11 him that he was giving the money on the direction of Krishnakant Choubey or the money is part of the bribe money. Appellant Vijay Kumar in his statement under Section 313 Cr.P.C. has stated that money was given to him by Satyanarayan saying that the amount is to be given to “T.I. Saheb” as repayment of loan and that trap party had caught him when Satyanarayan was trying to put money in his pocket in spite of resistance. The Supreme Court in the matter of K. Subba Reddy Vs. State of Andhra Pradesh reported in 2008 Cri.L.J. 345 has held that if there is no evidence to show that accused had any knowledge that money paid was bribe money, the conviction cannot be sustained. This Court also in the matter of Suresh Kumar Shrivastava V. State of M.P. reported in 1994 JLJ 247 has taken the view that when the demand of bribe money not established by substantive evidence, conviction cannot be made on mere recovery. 19/ Trial Court has also committed error in raising the presumption under Section 20 of the PC Act in respect of the offence under Section 13(1)(d) r/w S. 13(2) committed by Vijay Kumar. Learned counsel appearing for the respondent has relied the judgment of the Supreme Court in the matter of T. Shankar Prasad V. State of A.P. reported in AIR 2004 SC 1242 in this regard. The submission of the learned counsel for the respondent 12 cannot be accepted since a bare reading of the section 20 of the PC Act shows that the presumption under the Section is attracted for offence punishable under Section 7, 11 or 13(1)(a) or (b) of the PC Act. Such presumption is not attracted for offence under Section 13(1)(d) of the PC Act. The judgment relied upon by learned counsel for the respondent was in respect of offence under Section 7 of the PC Act, therefore, the presumption under Section 20 was available in that case. 20/ Thus the conviction and sentence of the appellant Vijay Kumar also for offence under Section 13(1)(d) read with S.13(2) of the PC Act cannot be sustained. 21/ In view of the aforesaid analysis, both the appeals are allowed by setting aside the conviction and sentence of the appellants for the offences mentioned above. Both the appellants are on bail, their bail and surety bonds stand discharged. 22/ Original judgment is kept in Criminal Appeal No.984/1998, a copy whereof be placed in the record of Criminal Appeal No.985/1998. (S.K. SETH) (PRAKASH SHRIVASTAVA) J u d g e J u d g e Trilok/-