1 AFR HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR DIVISION BENCH Criminal Appeal No.602/2000 1. Anirudh Kumar Mishra, s/o late Shri R.K. Mishra, aged about 33 years, Educated Unemployed, resident of 1477, Saraswati Colony, Cherital, Jabalpur, M.P. 2. Smt. Tara Mishra, Wd/o Rajendra Kumar Mishra, aged 58 years, r/o 1477, Saraswati Colony, Cherital, Jabalpur, M.P. versus The State of Madhya Pradesh. ------------------------------------------------------------------------------------------------ For the appellant: Shri S.C. Datt, Sr. Advocate with Shri Siddharth Datt, Advocate For the Resp./State: Shri Aditya Adhikari, Special Public Prosecutor, for S.P.E. Lokayukta. ------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------ PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA HONOURABLE SHRI JUSTICE M.A. SIDDIQUI ------------------------------------------------------------------------------------------------ Date of hearing: 28/07/2011 Date of Judgment: 03/08/2011 J U D G M E N T Per: Rakesh Saksena, J Accused R.K. Mishra had filed this appeal against the judgment dated 28th February 2000, passed by Special Judge (under Prevention of Corruption Act)/First Additional Sessions Judge, Jabalpur, in Special Criminal Case No.17/1997, convicting him under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentencing him to rigorous imprisonment for two years with fine of Rs.5000/-, on each count respectively. Sentence of imprisonment on both the counts were directed to run concurrent. 2 2. Since during the pendency of appeal accused R.K. Mishra died, by order dated 20.1.2004 and 15.11.2006 his son Anirudh Kumar Mishra and widow Smt. Tara Mishra have been permitted to continue the said appeal. 3. The accusation against accused R.K. Mishra was that on 19.5.1997 he was posted as Naib Tehsildar in Circle No.2, Jabalpur. While acting as public servant, he demanded and obtained illegal gratification of Rs.1000/- from complainant Puran Bharti (PW-3) for mutation of the agricultural land as per orders of the Civil Court and for making new 'Bhu Adhikar Patrika' and 'Rin Pustika' of the said land. 4. In brief, the prosecution case is that the complainant's grand father viz. Ram Bharti filed a suit in the court of Civil Judge, Class II, Jabalpur, for partition of his 25 acres of agricultural land comprised in Patwari Halka No.29 in village Tevar. This partition was sought on the basis of a compromise in which land was to be partitioned in favour of four persons viz. Vishwanath Bharti, Jivan Bharti, Kashi Bharti and Ram Bharti himself. The judgment and decree for the said partition was passed by the Civil Court on 22.8.1996. On 3.10.1996 complainant Puran Bharti (PW-3) filed an application in the court of R.K. Mishra, Naib Tehsildar, Jabalpur Circle No.2, for mutation of the names of concerned parties as per the judgment and decree of the Civil Court. He also prayed for preparation of 'Bhu Adhikar Patrika' and 'Rin Pustika'. Since father of complainant viz. Vishwanath Bharti was employed in Khamariya Factory, he used to go to attend the office of Naib Tehsildar on behalf of his father. R.K.Mishra (accused) demanded Rs.2000/- from him for mutation in the revenue records and for grant of 'Bhu Adhikar Patrika' and 'Rin Pustika' (Bahi). Since he did not wish to give bribe to accused, on 16.5.1997 he approached to the office of Special Police Establishment, Lokayukta, Jabalpur, and gave an application (Ex.P/22) to the Superintendent of Police, Special Police 3 Establishment, on the basis of which first information report was recorded and investigation ensued. 5. For verification of the complaint made by Puran Bharti, Special Police Officials gave him a cassette tape recorder and asked him to get the conversation between him and the accused recorded in respect of the demand of bribe. Complainant recorded the conversation and produced the cassette to Investigating Officer, M.B.S. Jaggi (PW-10). M.B.S. Jaggi summoned two independent witnesses viz. Ramesh Chand Jain, Assistant Engineer, Narmada Vikas Division No.2, Jabalpur and Shri P.D. Nema, Assistant Engineer, M.P. Electricity Security Department, Jabalpur and introduced them to complainant. These witnesses read over the complaint to Puran Bharti and verified the truthfulness of the complaint. A transcript of the tape record was also prepared. Being satisfied about the demand of bribe, Investigating Officer obtained 10 currency notes of Rs.100/- denomination from him and got them initialled from Ramesh Chand Jain (PW-1). Peon Petram applied phenolphthalein powder to those currency notes and put them in the pocket of the shirt of complainant. He was instructed to hand over the said currency notes to accused and give a signal to trap party. A demonstration about the reaction of the phenolphthalein powder with sodium carbonate solution was performed. Witnesses were made to understand that the phenolphthalein powder gave pink colour when it came in contact of sodium carbonate solution. A preliminary Panchnama (Ex.P/16) was prepared and trap party proceeded for the raid. 6. On 19.5.1997, at about 11.50 am, the trap party, in a government vehicle, reached in front of Tehsil Office and instructed complainant Puran Bharti (PW-3) to contact Naib Tehsildar R.K. Mishra. He went in the Court of accused. After sometime he came out and gave signal to the members of the 4 trap party. Members of the trap party entered the office of accused and caught his wrist and introduced themselves. In the beginning accused denied of having obtained any bribe, but later on he made request to leave him. Fingers of both hands of accused were dipped in sodium carbonate solution, which turned pink. The solution was seized vide seizure memo Ex.P/17. Ramesh Chand Jain (PW-1) took out Rs.1000/- from the pocket of full pants of the accused and tallied the numbers of the notes with the numbers noted earlier. He also found his initials on the said Rs.100/- currency notes. The recovered tainted currency notes were seized vide seizure memo Ex.P/15. The pocket of the full pants of accused, when washed with sodium carbonate solution, turned pink. The said solution was also seized vide seizure memo Ex.P/18. At the same time, the file of Revenue Case No.1/A/27/96-97 was seized from the briefcase of the accused. After drawing the spot map, final trap Panchnama (Ex.P/5) was recorded. After further investigation and obtaining sanction for prosecution, charge sheet against the accused was filed in the court of Special Judge. Learned Special Judge framed charges under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1980. 7. Accused abjured his guilt and pleaded false implication. As per his statement under Section 313 of the Code of Criminal Procedure, complainant (PW-3) had come to give money for the stamp duty. While the money was kept on his table, immediately trap party reached there saying that it was bribe and concocted a false story of trap. 8. Learned Special Judge, relying mainly on the evidence of complainant Puran (PW-3), Jivan Bharti (PW-4), Vishwanath Bharti (PW-5), Ramesh Chand Jain (PW-1), R.D. Nema (PW-7), Sudhir Shrivastava (PW-2), R.R. Verma (PW-9), Investigating Officer M.B.S. Jaggi (PW-10) and N.K. Shukla (PW-11), 5 held the accused guilty and convicted and sentenced him as mentioned earlier. Learned Special Judge held that the evidence of defence witnesses viz. Gendalal (DW-1) and Smt. Amrat Bala Chadda (DW-2) was unreliable. 9. We have heard the learned counsel for the parties and perused the evidence on record. 10. Learned counsel for the accused submitted that the learned Special Judge committed error in holding the accused guilty on the basis of interested parties and witnesses. Ramesh Chand Jain (PW-1) and P.D. Nema (PW-7) were not the independent witnesses, as they had, in past, been witnesses in other traps also. The evidence of complainant (PW-3) as well as the evidence of Investigating Officer M.B.S. Jaggi (PW-10) was not reliable in the absence of independent corroboration. Learned Special Judge for trivial reasons disbelieved the explanation furnished by the accused that the money was kept on the table by complainant for stamps. The evidence of defence witnesses was also illegally discarded. On the other hand, learned Special Public Prosecutor submitted that the evidence adduced by the prosecution was fully reliable. It was fully established that accused demanded and obtained bribe of Rs.1000/- from the complainant and furnished a false explanation in his defence. He supported the impugned judgment and the findings of conviction recorded by the learned Special Judge. 11. It has not been disputed that at the relevant time accused was a public servant. Naib Tahsildar R.R. Verma (PW-9) stated that the accused was posted as Naib Tahsildar in Circle No.2, Jabalpur. He took charge from the accused in the month of April 1997. Investigating Officer M.B.S. Jaggi (PW-10) stated that he collected information (Ex.P/26) from Tehsildar, Jabalpur. It contained the work distribution order and service book of accused. By order dated 31.7.1996, accused was appointed as Naib Tehsildar in Revenue Circle No.2, 6 Jabalpur. As per work distribution order, he had to dispose of the revenue cases pertaining to the Patwari Circle No.25 to 28 and 34 to 37, to make recovery and to deal with the natural calamity work. The fact that accused was posted as Naib Tehsildar had also been admitted by accused in his statement under Section 313 Cr.P.C.. Thus, it has been established that at the relevant time accused was posted as Naib Tehsildar and was a public servant. 12. The sanction for the prosecution of accused (Ex.P/28) was accorded by the Additional Secretary, M.P. Law and Legislative Affairs Department, in the name and by order of the Governor of Madhya Pradesh. This sanction order was proved by N.K. Shukla (PW-11). A perusal of sanction order reveals that the competent authority had accorded the sanction after due consideration of evidence and material collected in the case. Learned counsel for the accused also, in our view rightly, not challenged the validity of the aforesaid sanction. 13. Complainant Puran Bharti (PW-3) deposed that a case was instituted in the Civil Court, Jabalpur, for partition of the land of his grand father Ram Bharti. On the basis of compromise in the said case, land was divided in four parts. His brother Jivan Bharti had filed four lists in the Court of Naib Tehsildar R.K. Mishra for mutation in accordance with the orders of Civil Court, since the land fell within the jurisdiction of R.K. Mishra. Since his father was serving in factory and was not able to attend the dates fixed in the case, he used to attend the dates. On 14.5.1997, accused R.K. Mishra called him to his house and demanded Rs.2000/- for making 'Bahi Book'. He, however, did not wish to give money, therefore, on 16.5.1997, he submitted an application in the Lokayukta Department. Dy. Supdt. of Police M.B.S. Jaggi gave him a tape recorder and asked him to record conversation. He recorded his talks with the accused. When he told to accused that he was not able to give Rs.2000/-, accused told to him that he has been transferred, therefore, he should bring 7 Rs.1000/- by Monday at his residence and that he would give him 'Bahi Book' then and there. Since there were holidays on 17th and 18th May, 1997, he went to Lokayukta Office on 19.5.1997 and handed over the tape record to Jaggi Sahab. On the instructions of Jaggi Sahab, he made telephone call to accused, but accused asked him to come in the office. He handed over Rs.1000/- (10x100) in the Lokayukta Department on which Jain Sahab made his initials. An official applied some powder on the currency notes and put the said notes in the pocket of his shirt. He then went to Tehsil Office by scooter. Other persons came in a jeep and Maruti van. He was instructed to hand over money to accused and give signal thereafter. He met accused in the office and on his demand handed over the money to him, which he kept in the pocket of his pants. When he went out and gave signal, DSP Sahab and other persons reached in the room of accused and caught his hands. Jain Sahab took out the money from the pocket of the pants of the accused and washed his hands and the pocket of his pants by some solution, which became pink. They also seized the case file of his mutation proceedings. This witness was cross-examined at length, but nothing could be elicited out which could indicate that he was speaking false. 14. As far as Jivan Bharti (PW-4) is concerned, he corroborated the statement made by the complainant (PW-3). He stated that for making three 'Bahi Books' accused demanded Rs.6000/- from him and that he paid Rs.4000/- to him 3-4 months before the occurrence. Rs.2000/- was due, which were to be paid when 'Bahai Books' were to be delivered. In para-3 of his statement, he stated that accused had demanded Rs.2000/- from Puran Bharti in front of him. 15. Thus, from the aforesaid evidence, it is established that for mutation of names in the revenue record and for tendering 'Bahi Book' accused made 8 demand of Rs.2000/- as bribe from the complainant (PW-3). 16. The evidence of complainant (PW-3) further stands corroborated from the written complaint (Ex.P/8) submitted by him to Police Lokayukta, the evidence of Ramesh Chand Jain (PW-1), P.D. Nema (PW-7) and also by the evidence of Dy.Supdt. of Police M.B.S. Jaggi (PW-10). In two complainants viz. Ex.P/8 and Ex.P/22, it is very clearly mentioned that for mutating the names in the revenue record and for giving 'Bahi Book' accused demanded Rs.2000/- from complainant as bribe. Ramesh Chand Jain (PW-1) and P.D. Nema (PW-7) stated that when they met complainant in the Lokayukta Office, the complainant admitted that he made the said complaints that accused was demanding money. Similar statement was made by M.B.S. Jaggi (PW-10). 17. According to all the aforesaid witnesses, the complainant was handed over a mini tape recorder to record the conversation between him and the accused. After recording the same, the tape recorder was though produced in the office of Lokayukta and script was prepared, but in view of the fact that the sound reproduction of the tape was not clear and the proper custody of the tape record was not proved, learned trial Judge found it not safe to place reliance on the evidence of tape record. However, from the other evidence, it stands proved that appellant demanded bribe for mutation of names in the revenue record and for giving 'Bahi Book' to complainant. 18. As far as the trap proceedings and the acceptance of tainted money is concerned, the evidence of complainant Puran Bharti (PW-3) finds support from the evidence of Ramesh Chand Jain (PW-1), P.D. Nema (PW-7) and DSP M.B.S. Jaggi (PW-10). Ramesh Chand Jain (PW-1) happened to be an Assistant Engineer in Narmada Development Division, Jabalpur, whereas P.D.Nema (PW-7) was an Assistant Engineer in M.P. Electricity Board. Both, on the request made by DSP M.B.S. Jaggi (PW-10), participated in the trap 9 proceedings. They deposed that on receiving the signal from complainant, they reached in Tehsil Office and caught hold of the accused. When hands of the accused were washed with sodium carbonate solution, it gave pink colour. Similarly, when Ramesh Chand Jain (PW-1) took out money from the pocket of the pants of accused and got the pocket of pants washed with the sodium carbonate solution, it also gave pink colour. None of these witnesses stated that accused told to them that the said money was received by him for the stamps required in the case of complainant. Similar statement was made by DSP M.B.S. Jaggi (PW-10). 19. Learned counsel for the appellants/accused submitted that Ramesh Chand Jain (PW-1) and P.D. Nema (PW-7) were not independent witnesses, as they had participated in some traps in the past also. Trial Court committed error in placing reliance on their evidence. He also submitted that Investigating Officer DSP M.B.S. Jaggi (PW-10) was also a police officer, therefore, he was an interested witness. No implicit reliance could be placed on his evidence. 20. In case of G.V.Nanjundiah v. State (Delhi Administration)-AIR 1987 SC 2402, the Apex Court held that a trap witness was not independent because he admitted in cross-examination that he had earlier joined three or four such raids for trap organized by CBI and that it was the Dy. Supdt. of Police, who had called him from his office for the purpose of being trap witness. In case of Nanjundiah (supra), the Apex Court Court noted certain circumstances, under which the allegation of bribe having been given to appellant, was very much unnatural. The conduct of the contractor from whom the bribe was alleged to have been demanded was unnatural in the sense that he had withdrawn a sum of Rs.2500/- from the bank and got a certificate in that regard from the bank manager. The Apex Court observed 10 that normally no person would have behaved in that manner. Apart from it, number of other circumstances were found by the Apex Court under which the evidence of two witnesses was discarded observing that “we do not think that in the circumstances either of them can be called an independent witness”. 21. In case of Gian Singh vs. State of Punjab-(1974) 4 SCC 305 the Apex Court held that “Minor criticism such as that PW-3 has been a witness on other occasions on the side of the prosecution, or that he had been prosecuted in a security case in the year 1949, have been urged before us for discrediting PW-3. Some such circumstances were sought to be set out to persuade us to disbelieve PW-2 also. We are far from satisfied that there is good ground to dismiss their testimony as incredible.......In a recent case to which one of us was party (som Prakash v. State of Delhi-(1974) 4 SCC 84) this court had held that police officials cannot be discredited in a trap case merely because they are police officials, nor can other witness be rejected because on some other occasion they have been witnesses for the prosecution in the past. Basically, the Court has to view the evidence in the light of probabilities and the intrinsic credibility of those who testify”. 22. In case of Hazarilal vs. The State (Delhi Admn.)-AIR 1980 SC 873 the Apex Court observed that “where the evidence of the Police Officer, who laid the trap is found entirely trustworthy, there is no need to seek any corroboration. There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence of corroboration”. 23. It is also profitable to quote the observations made by the Apex Court in the case Rafiq v. State of U.P.-(1980) 4 SCC 262, which is as under: “The facts and circumstances often vary from case to case. 11 The crime situation and the myriad psychic factors, and so, rules of prudence relevant in one fact-situation may be inept in another. Therefore, regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision, cannot be mechanically extended to another case.” 24. Keeping in view the above propositions, when we examine the evidence of complainant (PW-3), Ramesh Chand Jain (PW-1), P.D. Nema (PW-7) and DSP M.B.S. Jaggi (PW-10), in the facts and circumstances of the case we find their evidence firm, cogent, consistent and wholly trustworthy. Even if they are said to be not independent witnesses, their evidence stands corroborated from the circumstances appearing in the case. Apparently, their appeared no reason for the complainant and other witnesses to have made false accusation against the accused of demanding bribe, since they did not entertain any ill will against him. The fact that hands and pocket of the accused gave pink colour to the solution of sodium carbonate amply established that he accepted the tainted currency notes. 25. Another important aspect is that at the time when accused was trapped, he had been transferred and had already handed over the charge to his successor Naib Tehsildar R.R. Verma (PW-9). From the evidence of R.R.. Verma (PW-9), it is clear that he had taken over charge from accused in the month of April 1997. According to him, accused had informed him that 2-3 files were kept in his house, which he would give to Reader later on. He did not receive those files. On this point, another important witness is Sudhir Shrivastava (PW-2), who was posted as Reader in the office of accused. According to him, on 15.5.1997, R.R. Verma had taken over the charge from the accused. At the time of taking over charge 2-3 cases, which were fixed for orders were retained by the accused. One of the case was of complainant's uncle Jivan Bharti (PW-4). When the files of these cases were demanded, 12 accused assured that the files were at his residence and he would hand over those files next day. Here it is important to note that the aforesaid file of complainant was seized by DSP M.B.S. Jaggi (PW-10) from the briefcase of the accused at the time of trap. From the evidence of these witnesses, it clearly transpires that the case file of complainant was withheld by the accused despite the charge of his office was taken over by his successor R.R. Verma (PW-9). This fact clearly indicates the ulterior motive of the accused. There was no reason for the accused to have kept those files at his residence even after his transfer and his handing over the charge to his successor. 26. The defence plea of the appellant that the tainted money was put by complainant on his office table for the payment of stamp duty does not appear truthful. How he could have passed the order in the file of the complainant for mutation or giving him 'Bahi Book' when he had already handed over the charge to other Naib Tehsildar. Ramesh Chand Jain (PW-1), P.D.Nema (PW-7) and DSP M.B.S. Jaggi (PW-10) denied that at the time of occurrence appellant furnished any such explanation. It is also significant to note that in the revenue case of Jivan Bharti (PW-4) a separate order was passed by the accused on 15.5.1997, but there was no order directing parties to submit stamp duty or pay the fees for purchase of stamps. In these circumstances, the explanation furnished by the accused seems clearly an after thought. 27. Gendalal (DW-1) merely deposed about the procedure for supply of stamp in partition case. According to him, when a case comes to the Court of Naib Tehsildar from the Civil Court for partition, the partition is recorded on stamp paper. Parties are supposed to give money to Naib Tehsildar for the purchase of stamps. Smt. Amrat Bala Chadda (DW-2) stated that at the time of incident she was Reader in the court of accused. When accused had gone to attend meeting, a boy came to her and informed that he had to give money 13 for the stamp duty. Since accused was not present in the office, she asked that boy to put money on the table. When accused came back, he enquired from her about the money kept on his table. In the meanwhile, the officials of Lokayukta team reached there and caught the accused. In our opinion, the evidence of Amrat Bala Chadda (DW-2) does not inspire confidence being unnatural and improbable. It is quite unnatural that in a Court of Naib Tehsildar, where number of litigants come, somebody would come and put the money on the table of Presiding Officer for the stamp duty. Apart from it, Smt.Amrat Bala Chadda (DW-2) did not disclose this fact to the members of the trap party at the time of raid. She even denied that the case of complainant was in her court. It is thus established that accused accepted/came into possession of the tainted money. In M.W. Mohiuddin v. State of Maharashtra-(1995) 3 SCC 567 in the context of words 'obtains the pecuniary advantage' in Section 7 and 13(d) of the Prevention of Corruption Act, the