HIGH COURT OF MADHYA PRADESH : JABALPUR DB : Hon. Rakesh Saksena & Hon. M.A. Siddiqui, JJ. Criminal Appeal No.1340/2002 R.L. Shukla, Son of Shri Motilal Shukla, Aged about 44 years, resident of Police Station Aitraila, District-Rewa Naib Tahsildar, Amarpatan, District-Satna, Madhya Pradesh Vs. The State of Madhya Pradesh Through – Special Police Establishment, Lok Ayukt Office, Rewa Division, Rewa, Madhya Pradesh Shri Anil Khare, Advocate with Shri Som Mishra, Adv. for the appellant. Shri Aditya Adhikari, Special Public Prosecutor for SPE Lokayukta. JUDGMENT RESERVED ON 03/08/2011 JUDGMENT DELIVERED ON 18/08/2011 J U D G M E N T As Per : M.A. Siddiqui, J. This appeal has been filed by the appellant against the judgment dated 2nd September, 2002 delivered by Special Judge, Satna in Special Case No. 15/94 whereby the appellant has been convicted for alleged offence punishable under Section 161 of Indian Penal Code (for short “IPC”) , and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as “the Act”) and sentenced to R.I. for three years and fine of Rs.10,000/-, in default of payment of fine - 2 - to further undergo S.I. for six months on each count respectively. Substantive sentences have been directed to run concurrently. 2. In short, the facts of the case are that appellant was posted as Naib Tahsildar at Tahsil Headquarter Amarpatan, District- Satna. Case No. 7A-27/86-87 as to agricultural property for recording the name was going on in the Court of appellant in which one of the party appointed Mandan Mohan (PW.1) as their representative. The final arguments were heard on 30.03.88 and case was reserved for delivery of judgment on 31.03.88. The allegation of Madan Mohan (PW.1) was that appellant demanded Rs.8,000/- to do the judgment in favour of party of the complainant Madan Mohan (PW.1), on which Madan Mohan (PW.1) agreed to pay Rs.5,000/- and it was agreed to give the money on 25.4.88. As complainant Madan Mohan (PW.1) did not want to give the bribe so he approached SPE (Lokayukta), Rewa and reported the matter vide Ex.P/1 to V.D.Handa (PW.10) the then Deputy Supdt. of police. K.L.Gupta (PW.5) the then Deputy Registrar, Cooperative Societies was called and complainant Madan Mohan (PW.1) was introduced to him who verified the facts from the complainant and read complaint Ex.P/1 and then trap was arranged. V.D.Handa (PW.10) obtained Rs.5,000/- from complainant and demonstrated the effect of phenolphthalein powder to complainant and other witnesses. He arranged for trap and asked complainant to handover the bribe money of Rs.5,000/- to appellant and give a signal. A pre-trap Panchnama Ex.P/2 was prepared. - 3 - 3. On 25/04/88 complainant and the members of trap party reached Amarpatan. On that day, it was found that appellant had gone to Satna as informed by his family members and it was asked that he will meet on the next day morning. So, complainant with the trap party came to Bela, a nearby village of Amarpatan and did night halt there. They started for Amarpatan in the morning of 26/04/88 and reached there. From there, they took Gaya Prasad (PW.9) with them, and complainant and Gaya Prasad (PW.9) were sent to appellant’s official residence from where Gaya Prasad (PW.9) after some time gave the instructed signal on which trap party including K.L. Gupta (PW.5), V.D. Handa (PW.10) etc. went inside the house of appellant. Appellant, apprehending trap, went inside the house and threw the tainted currency notes of Rs.5,000/- near kitchen and bedroom. Tainted notes were seized from there vide Ex.P/3, appellant was caught and hands of appellant were washed with sodium carbonate, it turned into pink, the solution was kept in a bottle, hands of complainant were also washed with the solution, it also turned pink. All the solutions were seized and memorandum of trap proceeding Ex.P/6 was prepared. Spot map Ex.P/7 was also prepared. File of Case No.7A-27/86-87 in which an alleged partly hand written judgment marked as Ex.P/4 was seized vide Seizure Memo Ex.P/5. File Article-A was seized together with the documents. V.D. Handa (PW.10) recorded Dehati Nalish Ex.P/20 which was sent for registration and FIR Ex.P/21 was registered at Lokayukta Police Station, Bhopal. Appellant was arrested and was released on bail. After usual investigation and obtaining - 4 - requisite sanction vide Ex.P/13, charge sheet was filed in the Court of Special Judge. 4. On charges being framed, appellant pleaded false implication. His defence, as per his statement under Section 313 of Cr.P.C., was that complainant was a tout and he wanted appellant to give judgment in his favour as he had taken huge sum from his party. The judgment was passed on 31.03.88 in Teothari Camp and from Article-A vide Ex.D/11, it is very much clear that judgment was passed on 31.03.88 . The complainant with Court Reader Prem Lal Kushwaha (PW.7) conspired to change the judgment and that is why Prem Lal Kushwaha (PW.7) came with heading of half written judgment in his handwriting saying that original judgment had been misplaced. In order to save his service, Ex.P/4 was brought by Prem Lal (PW.4) with the complainant, on which appellant refused to re- write the judgment and asked Prem Lal (PW.7) to search the original judgment and put it into the file. On 28.04.88 judgment was found and it was sent through Tahsildar, Maihar to SDM. As judgment had already been passed and it was against the party of complainant, there was no occasion to ask for bribe, and complainant with conspiracy of Prem Lal Kushwaha (PW.7) after throwing the money in the residence of appellant which is in dilapidated condition has falsely implicated the appellant in this case. Appellant has examined 10 witnesses in his defence. 5. Prosecution examined 12 witnesses to establish its case viz., Madan Mohan (PW.1), Gaya Prasad (PW.9) shadow witnesses, K.L. Gupta (PW.5) independent witness, Gajraj Prasad Dwivedi (PW.4) Constable (Panchnama witness), - 5 - Rajbahoran Tiwari (PW.8) Constable who carried the seized bottles of solution for chemical examination to FSL, Sagar, V.D. Handa (PW.10) Dy.Supdt. of Police and Investigation Officer as well as leader of trap party, Ramrup Mishra (PW.11) Inspector, R.B. Singh (PW.12) Inspector, D.N.Bille (PW.2) UDT for sanction, Mushtaq Ali (PW.3) for proving service of appellant as Naib Tahsildar, Bhupendra Singh (PW.6) SDO to prove service of Naib Tahsildar appellant and Prem Lal Kushwaha (PW.7) Reader of Court of appellant . 6. Appellant, to substantiate his defence, examined Chhabilal Tiwari (DW.1), Narendra Sharma (DW.2), R.P. Shukla (DW.3), Kamleshwar Prasad (DW.5) all Advocates, Anup Singh (DW.4) the then SDM, Gokaran Prasad (DW.6) Reader to SDM, Ram Prasad Mishra (DW.7) the then Tahsildar-Amarpatan, Abhaylal Mishra (DW.8) another Tahsildar of Amarpatan, Rama Shankar Singh (DW.9) the then Sub-Engineer for the condition of official residence of appellant in which it is said that tainted notes were recovered, and Jamuna Prasad Mishra (DW.10) Lower Division Clerk of Civil Court. 7. We have heard learned counsel for the parties. 8. It was no longer disputed that at the relevant time, appellant was working as Naib Tahsildar at Amarpatan as such he was a public servant and it has further been proved by Mushtaq Ali (PW.3), Bhupendra Singh (PW.6), Prem Lal Kushwaha (PW.7) and by defence witnesses that appellant was at the relevant time working as Naib Tahsildar and he was a public servant. - 6 - 9. As far as sanction vide Ex.P/13 against the appellant is concerned, it was proved by D.N.Bille (PW.2) that valid sanction vide Ex.P/13 was accorded by the then Addl. Secretary (Law Department), Bhopal on 7.12.90. Even otherwise, learned counsel for appellant has not challenged the validity of sanction accorded by Additional Secretary (Law Department). 10. Madan Mohan Dwivedi (PW.1) complainant deposed that appellant was Naib Tahsildar at the relevant time and case of Dhammi and Rammi for partition was going on before the appellant for which Dhammi and Rammi have appointed him as their agent to look after the case by written Mukhtarnama on 25.02.87. The arguments were heard on 30.03.88 and case was fixed for judgment on 31.03.88, but up to one month judgment was not delivered, so on 22.04.88, the witness asked appellant that why judgment had not been delivered. At that time, appellant demanded Rs.8,000/- and said that only thereafter the judgment will be delivered, on which complainant stated to him that he was a poor person, he could not give so much of money, so the matter was settled for Rs.5,000/- and the same was to be given at the official residence of appellant. As complainant/witness did not want to give bribe, so on 25.04.88 he went to office of SPE (Lokayukta), Rewa and gave written application Ex.P/1 which was attended to by Dy.Supdt. of Police (Lokayukta) V.D.Handa (PW.10), he also enquired from him. Thereafter, K.L. Gupta, Deputy Registrar was called who also enquired from him and verified the complaint. On demand by V.D.Handa, witness tendered Rs.5,000/- in which 76 notes were of Rs.50/- and 12 notes were of Rs.100/-, total Rs.5,000/-, search - 7 - was made of his pockets, numbers of the notes were noted down and phenolphthalein powder was applied on the same and by folding them in a paper, they were kept in right side pocket of his Kurta and he was asked not to touch them, before giving the same to the appellant, for which panchnama was made and his hands were washed, then hands of constable who applied the powder were washed, colour of water became pink. Panchnama Ex.P/2 of the proceeding was made, then on the same day, he started to Amarpatan with the trap party. On 5 PM he was sent by the trap party to the house of appellant where it was found that appellant was not there and he had gone to Satna, he was asked to come on the next day in the morning, so he along with the trap party came to Bela, a nearby village, and he halted with the trap party in the night there. He further deposed that on 26.04.88 at 7 AM the witness started with the trap party to Amarpatan and reached there at 9 AM, jeep was halted at some distance from the residence of appellant and in the way Gaya Prasad Tiwari (PW.9), husband of Rammibai met him and both went to the house of appellant. Appellant was sitting in the verandah, appellant asked him whether he had brought Rs.5,000/-, firstly he said that he had no money, but when appellant asked him to give the money only then the judgment will be given, he took the money from his pocket out and gave it to appellant, appellant by taking the money on his palm, counted it and went inside the house. Then complainant asked Gaya Prasad to give the signal and trap party came and caught appellant. Meanwhile, appellant threw the notes behind the door. 5-7 police personnel caught the appellant and his hands - 8 - were washed by the water, it turned pinkish, same was seized and panchnama was prepared. Hands of this witness were also washed, it also turned pinkish. Currency notes were tallied and counted and they were also washed, the solution turned pinkish. Notes were seized vide Ex.P/3 on which the witness put his signatures. The case file was lying beneath the table which was seized as Article A together with half hand written judgment vide Ex.P/4. Trap panchnama Ex.P/6 and spot map Ex.P/7 were prepared, bottles of solution were sealed and witness put his signatures on that. 11. K.L. Gupta (PW.5) , Gaya Prasad Tiwari (PW.9) and V.D. Handa (PW.10) deposed in favour of prosecution. Against which appellant produced 10 witnesses in his favour alleging false implication in the case, but learned trial Judge rejected the defence evidence, and relying on prosecution evidence punished the appellant as aforesaid. 12. Learned counsel for appellant submitted that K.L. Gupta (PW.5) Deputy Registrar, Cooperative Society was a stock witness of Lokayukta establishment. He had appeared in 4-6 cases as a witness for Lokayukta establishment, therefore, no reliance can be placed on his evidence as he himself has admitted in his cross-examination vide para no.16 and further he also admitted that before his evidence he approached to the Government counsel and read his statement before giving evidence in the Court. So, he cannot be treated as an independent witness as per decision rendered by the Apex Court in G.V.Nanjundiah vs. State (Delhi Administration) AIR 1987 SC 2402 and Raghbir Singh vs. State of Punjab AIR - 9 - 1976 SC 91. Counsel further placed reliance on decisions of Apex Court in Banarsi Dass vs. State of Haryana AIR 2010 SC 1589,Darshan Lal vs. The Delhi Administration (1974) 3 SCC 595, Sita Ram vs. The State of Rajasthan (1975) 2 SCC 227, Suraj Mal vs. The State (Delhi Administration) AIR 1979 SC 1408, Bal Krishan Sayal vs. State of Punjab (1987) 2 SCC 647, State of Andhra Pradesh vs. T.Venkateswara Rao and decisions of this Court in Ram Swaroop Rathore vs. State of M.P. 2000 Cri.L.J.1882 and Khanju Prasad Ladiya vs. State of M.P. 2000 Cri.L.J. 4400. 13. Learned counsel for respondent supported the impugned judgment rendered by learned trial Court and submitted that transfer of money to appellant 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.). 14. Learned counsel for appellant assailed the finding of conviction on the ground of absence of demand of bribe. Counsel submitted that prosecution utterly failed to prove the demand, still learned trial Court convicted the appellant. Counsel submitted that prosecution evidence is very much doubtful on the point of demand. As per Ex.P/1 report lodged on 25.04.88 by Madan Mohan (PW.1) though the fact that Rs.8,000/- were demanded was there, but no date and place has been mentioned. The mentioned fact is that on 31.03.88 order was not passed then he made request to appellant on which - 10 - demand was made. Further it is written that on 22.04.88 he met appellant and again requested and showed his inability of giving Rs.8,000/-, then appellant asked him to give Rs.5,000/- on Monday and said that only then the judgment will be given in his favour. In his statement in the Court he reiterated the fact that on 22.04.88 he approached the appellant and Rs.8,000/- were demanded and Rs.5,000/- were asked to be given. In cross-examination para 18, Madan Mohan (PW.1) stated that demand was made in the open Court. Vide para no.19, he took a somersault and stated that on 22.04.88 he did not meet the appellant at all and no talk took place between him and appellant. When he was confronted with the portion of his written complaint Ex.P/1, then he deposed that “B to B” portion has wrongly been written, though it has been written in his own handwriting. 15. Gaya Prasad Tiwari (PW.9) stated that he is the husband of Rammibai . Rammibai appointed Madan Mohan (PW.1) as her power of attorney. The witness stated that he works at Calcutta and Madan Mohan sent him information before one month of 25.4.88 that judgment was going to be passed. On 12.04.88 the witness came to his house then Madan Mohan (PW.1) came to him and asked for Rs.5,000/- and said that appellant has demanded Rs.5,000/- for judgment and he does not want to give bribe and wants to get him caught red handed, so the witness gave Rs.5,000/- to Madan Mohan on his demand. After that, on 24.4.88 Madan Mohan told him that he is going to Rewa and asked him to meet on 25.04.88 at 8-9 AM at Amarpatan. The bribe rupees were given by Gaya Prasad and - 11 - what conversation and on which date the demand was made, on this point complainant (PW.1) is silent not only in his written complaint, but also in the Court statement. So, it is not clear that when demand of bribe was made from complainant. 16. Learned counsel for appellant submitted that judgment was delivered as per order sheet dated 31.03.88 vide Annexure D/11 which is part of case file Article-A and the same was made available on the next day. This judgment was seen by Chhabilal Tiwari (DW.1), Narendra Deo Sharma (DW.2) and R.P. Shukla (DW.3) Advocates, out of them Chhabilal Tiwari (DW.1) was the counsel of Dhammi and Rammi Bai. He specifically stated that judgment was delivered on 31.03.88 and he has been informed of the same by Reader and he himself saw the judgment Ex.D/11 (this mark of D/11 is both in the order sheet dated 31.03.88 as well as in alleged judgment dated 31.03.88 by the trial Court). 17. Reader of appellant Prem Lal Kushwaha (PW.7) stated that case was listed for judgment in Teothari Camp. The case was pending with the appellant, but in his police statement vide Ex.P/5 he gave statement that judgment was delivered and judgment was very much there, though he denied this fact in his cross-examination and stated that he had not given this statement. But in his examination-in-chief he stated that when party approached him then he informed the party as per instructions of appellant that case has been rejected. 18. Learned counsel for respondent submitted that Article-A case file together with Ex.P/4 half hand written judgment was - 12 - seized at the time of raid which shows that judgment was not written, for which learned counsel for appellant submitted that Ex.P/4 is nothing, but the title page written by Prem Lal Kushwaha (PW.7) against whom the appellant made allegation that he has concocted the case with the complainant against appellant, and Prem Lal Kushwaha (PW.7) was Reader who removed the judgment from the file and afterwards it was found. 19. Anup Singh (DW.4) the then SDM stated that on 28.04.88 judgment (Ex.D/11) was produced before him and he ordered to send it to Lokayukta. As per police statement of Prem Lal Kushwaha (PW.7) judgment was delivered on 31.03.88 by which claim of Rammi and Dhammi was rejected, then there was no occasion for the appellant to ask for bribe. Gokaran Prasad (DW.6), Reader of SDM and Abhay Lal Mishra (DW.8) Tahsildar stated that disposal list was to be sent up to 5th day of next month of the previous disposal, and by Ex.D/25 and D/26 monthly statement was sent in which Case No.7A-27/86-87 was shown to be disposed of. This further strengthened arguments of appellant’s counsel. 20. In Khanju Prasad Ladiya vs. State of M.P. (supra) , alleged demand of illegal gratification was by Naib Tahsildar for conferral of Bhumiswami rights, however, Bhumiswami rights were already conferred, as such there was no necessity for complainant to file fresh case for grant of Bhumiswami rights, very basis for demand of bribe by accused Naib Tahsildar was not proved, money was not recovered from the person of - 13 - accused but recovered from a bag in house of accused, it was held that possibility of complainant planting money in bag cannot be ruled out, entire conduct of complainant was held to be doubtful , there was absence of material facts in FIR. Accused was held to be entitled for acquittal. 21. Learned counsel for appellant further submitted that there are material discrepancies in the statements of Madan Mohan (PW.1) and Gaya Prasad (PW.9). Madan Mohan stated that Gaya Prasad Tiwari met him on 26.04.88 in the morning when the party came back from Bela on the day of raid while Gaya Prasad (PW.9) stated that he joined company of raid party on 25.04.88 in the evening and he was very much there with the trap party up to Bela. Madan Mohan (PW.1) is the brother of Gaya Prasad Tiwari’s daughter-in-law and they are close relatives. This discrepancy is,therefore, very important. If Gaya Prasad Tiwari would have in the company of Madan Mohan (PW.1) from 25.04.88, then he would have told this thing, but he specifically stated that Gaya Prasad Tiwari met him just before the raid on 26.04.88. On point of giving money and demand, there are also discrepancies as per above discussion. 22. Learned counsel for appellant further submitted that there is material discrepancy about the manner of giving alleged money. As per statement of Madan Mohan (PW.1) appellant took the currency notes in his hands and he counted the same and then he went inside and thereafter Madan Mohan asked Gaya Prasad to give the signal and at that time police personnel were standing behind the house. Gaya Prasad Tiwari who was not - 14 - made member of the trap party by the police has become witness that is why there are material contradictions on the point of taking money. Gaya Prasad does not say anything about counting and he does not state that complainant asked him to give the signal. For denomination of notes, he stated that he gave 12 notes of Rs.100/- and 75 notes of Rs.50/-to Madan Mohan, while Madan Mohan (PW.1) stated that Rs.50/- notes were 76 not 75. If the notes were 75, then total figure will be Rs.4,950/- not Rs.5,000/-. 23. In State of Andhra Pradesh vs. T. Venkateswara Rao (supra) it has been held that respondent public servant alleged to have demanded and obtained an illegal gratification of Rs.400/- to show an official favour to award work order to complainant, said contract was only under consideration and was not finally accepted, so no question of respondent agreeing to give work order on payment of bribe arises, evidence of witnesses that Rs.400/- was recovered from respondent’s house and on testing respondent’s hand tested positive for having handled tainted money would not lead to an irresistible conclusion that it was received by respondent as bribe money in view of explanation given by him that money in question was kept in advance by complainant before his arrival in house and on being asked by I.O.he brought money and because of his handling he came in contact with phenolphthalein powder. Acquittal of respondent was held to be proper. 24. Learned counsel for appellant submitted that complainant who took huge sum from his party, with the connivance of Prem - 15 - Lal Kushwaha (PW.7) wanted to change the judgment. Before it there was a trap of Patwari in which scuffle and beating took place for which criminal case was registered in which Patwaris agitated and they gave beating to Lokayukta police, so Lokayukta police was also annoyed with the employees of Tahsil-Amarpatan. Madan Mohan who had taken huge sum from his party wanted to change the decision and that is why Prem Lal Kushwaha came with Ex.P/4, the title of the judgment for re- writing of the judgment, for which appellant denied. Complainant by throwing money inside the dilapidated residence of appellant with the connivance of Prem Lal Kushwaha Reader concocted the case. 25. As far as condition of house of appellant is concerned Ramashankar (DW.9) stated that residence of appellant was in very bad condition and was of rejected category, but anyhow appellant was living in this house in which not only the walls, windows, doors, etc. were in broken condition, but any person could enter into it. As per spot map Ex.P/7 the amount was seized from the place which was near the outside courtyard where anyone could enter and throw the money. 26. Learned counsel for respondent submitted that tainted money was seized from residence of appellant, when his hands were washed the solution became pink, and further it was corroborated from the FSL report. Counsel placed reliance on DB decision in Ravindra Kumar Ganvir vs. State of M.P. (supra) in which it has been held that where accused after taking money threw it into flush seat which was subsequently - 16 - recovered from there on the next day and then test of washing of