Bapu Singh Kushwaha vs State of Madhya Pradesh

Hon''ble Justice A.K. Sharma

The appellant accused has filed this appeal u/s 374 of Cr.P.C. against the judgment dt. 11.2.2002 passed in Special Case No.1/2000 by learned Special Judge (Prevention of Corruption Act) First Additional Sessions Judge Dewas, M.P. convicting him for the offence punishable u/s 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and sentencing him to undergo RI for one year and fine of Rs. 1,000/- with default stipulation. The brief facts of the case are that on 5.7.1999 complainant Ashok made a written complaint that appellant Bapusingh who was posted as Patwari of Village Pipalrawa Tehsil Sonkatch District Dewas, M.P. is demanding money for mutation of his name in the revenue records even after order has been passed by Tehsildar Sonkatch for partition of ancestral agricultural land. After registering complaint the Lok Ayakut team arranged for a trap and Rs. 700/- has been agreed between the complainant and accused have been given to the complainant. The currency notes which were proposed to be given to the complainant after applying Phenolphthalein Powder on them and preparing Panchnama. The accused was found in the Tehsil Office where money was given to the accused by the complainant and after receiving signal from the complainant, appellant was caught by the officials of the Lok Ayukat Establishment and Rs. 700/- were seized from him. Thereafter Panchnama was prepared and after washing hands of the appellant Panchnama was prepared. After investigation, challan has been filed in the Court of learned Special Judge in Crime No.65/1999 and learned Trial Court after framing charges for the offence punishable u/s 7/13(1)(d),13(2) of Prevention of Corruption Act and after trial convicted the appellant for the charge framed against him and sentenced him as mentioned in para 1 of this judgment.

This appeal has been filed on the ground that appellant has been falsely implicated due to personal enmity and mutation of name of complainant for which alleged money is said to have been paid to the complainant has already been implemented in the khasra records in compliance of order dt. 3.5.1999 passed by Naib-Tehsildar on 5.5.1999. Therefore, on 7.7.1999 i.e. after more than two months there was no question of demand of money for mutation of the name of the appellant.

The only question for consideration in this appeal is that whether the learned Trial Court is justified in convicting the appellant for the offence punishable u/s 13(1)(d) read with Section 13(2) of Prevention of Corruption Act.

So far as the evidence part is concerned, the prosecution has examined complainant and Ashok PW-1 who, in his examination-in-chief stated that after passing of order by the Tehsildar for partition and mutation of his name in the revenue record he made a contact with the accused after 8 to 10 days, at that time, accused demanded Rs. 2,000/- after 10 to 15 days he went to the accused and told that he could not arrange Rs. 2,000/- then accused demanded Rs. 1,000/- and finally matter was settled for Rs. 700/-. Thereafter he came to know from the news-paper that regarding Lok Ayukat then he approached the Lok Ayukat Office Ujjain, and submitted an application Ex.P/1 and thereafter trap was arranged and that amount was given to the accused. The Officers of Lok Ayukat Establishment in the presence of witnesses seized the amount of Rs. 700/- from the possession of accused.

Before proceeding for trap complainant was given a tape recorder for recording the talks with the accused by preparing Panchnama Ex.P/2 and a day before proceeding for trap he recorded the voice of the accused and handed over the tape recorder to the Lok Ayukat Establishment of which Panchanama Ex.P/3 was prepared. Thereafter chemical was applied on 7 notes of 100 Rs. and the peon took the notes in his pocket and he has been warned not to touch the notes before they are required to be given to the accused. Panchanama Ex.P/5 was prepared and thereafter they started for village of the accused. The accused was not found in his house, therefore, they reached Tehsil office Sonkatch, where accused was attending a meeting. After meeting the complainant made a contact with the accused and handed over the notes to the accused and thereafter receiving signal from him the Officials of Lok Ayakut Establishment caught the accused and got his hands and pocket of the kurta washed. After washing hands of accused his pocket turned pinkish of which Panchnama Ex.P/6 and P/7 were prepared. This statement of Ashok PW-1 has been confirmed by Dilip Nahar PW-2 who is cousin of complainant Ashok PW-1. Nirpatlal Choudhari PW-5, Peon Mangilal Goyal PW-7 and Investigating Officer Inspector R.S. Chundawat PW-9.

Learned Counsel for the appellant has submitted that the appellant has been falsely implicated and he has drawn attention towards the fact that the mutation order passed by the Tehsildar Shiv Prasad Yadav PW-6 in Case No.4-a-6/97-98 on 5.4.1999 and letter Ex.P/12 was issued to the Patwari Pipalrawa. He has admitted in cross-examination that report was produced before him on 3.5.1999, certified copy of which is Ex.D/3 by accused regarding compliance of order of mutation and thereafter no further action was required to be taken.

Learned Counsel for the appellant has submitted that letter Ex.P/12 has been issued on 26.4.1999 by which accused has been directed to make the entries in the revenue papers and submit copy of the same to the Tehsildar. Ex.D/3 is a letter dt. 3.5.1999 which has been written to the Tehsildar intimating the compliance of order communicated to him. It is submitted by learned Counsel for the appellant that the accusation of the complainant that appellant demanded money for implementing the order of mutation in the revenue records is false. He has further drawn attention towards the statement of complainant Ashok PW-1 who in his crossexamination admitted in para 16 that accused was demanding money for giving copy of khasra and B/1. In the same para he has further admitted that he took the Bhuadhikar and Rinpustika for giving to the accused which means that his name be mutated and same was to be entered in the Bhuadhikar and Rinpustika which is kept by bhumiswami.

Learned Counsel for the appellant has also drawn attention towards the statement of Tehsildar Shiv Prasad Yadav PW-6 who has admitted that his order was complied by Patwari and who has submitted compliance report, a copy of which is Ex.D/3 along with a note regarding enclosure of copy of khasra. There is no reason to disbelieve Tehsildar and in the light of admission of complainant by which he changed his version for demand of money for giving copy of khasra and B/1 instead of entering his name in compliance of order of mutation passed by Tehsildar.

Learned Counsel for the appellant has submitted that complainant was having previous enmity with the appellant accused and, therefore, he has intentionally touched the amount which was kept in his pocket of trouser with special direction for not to touch the amount till delivery of it to the accused. He has stated in cross-examination that he did not remember that whether he shake hand with the appellant or not.

Regarding previous enmity Ashok Nahar PW-1 has admitted in his cross-examination that he had a talk with family of accused regarding purchase of seed of Soyabean. Although he has denied that accused has demanded money for Soyabean by saying if would have brought money then you can take Soyabean Seed. He has further admitted in para 25 of his cross-examination that after receiving notice from Tehsil, he went to deposit the amount before Patwari. He took Rs. 1229/- and he tried to give the amount to the Patwari but Patwari directed to deposit the amount in the Tehsil Office Sonkatch.

So far as the tape recording regarding demand of money is concerned, Ashok Nahar PW-1 has admitted that there is nothing regarding demand of Rs. 1,000/- in the tape recording. He tried that accused shall tell himself about the amount, but accused did not tell anything about the amount.

Learned Counsel for the appellant has submitted that there is no evidence regarding demand of money in the tape recording. Further recovery proceedings regarding payment of revenue was pending against the father of the complainant and complainant himself has touched the amount atleast twice after amount was kept in his picket and it is further submitted that the reason which was told by complainant for demand of money by the accused has not been proved in evidence. On the other hand, the complainant has told another different reason for demand of money i.e. for supplying copy of khasra and B/1 which further means the allegation of demand of money for mutation of name of complainant has already been done long before so called demand of money and order of Tehsildar for mutation has been complied by making relevant entries in the khasra record by the appellant more than two months before.

Learned Counsel for the appellant has cited judgment of Hon''ble Apex Court in the matter of Panalal Damodar Rathi Vs. State of Maharashtra, , that the evidence of complainant regarding the conversation between him and the accused has been setout earlier as the entire case of prosecution depends upon the acceptance of the evidence relating to conversation between the complainant and the appellant during which the appellant demanded the money and directed the payment to the second accused which was accepted by the complainant, we will have to see whether this part of evidence of complainant has been corroborated. In the present case, there is no evidence regarding what conversation took place between accused and complainant at the time of handing over of amount and the version for demand of amount by the appellant has been changed by the complainant at the time of evidence and totally different cause has been shown which has discarded the reason for which the trap was arranged i.e. demand of money for mutation of name of appellant in the revenue records.

Learned Public Prosecutor has submitted that in a case of gratification only it is to be proved that public servant is found in possession of currency notes smeared with Phenolphthalein Powder and presumption has to be drawn regarding demand of money for holding accused guilty u/s 20 of Prevention of Corruption Act and for holding accused guilty for the offence punishable u/s 13(2) of Prevention of Corruption Act. In support of his argument, he placed reliance in the matter of Madhukar Bhaskarrao Joshi Vs. State of Maharashtra, .

In reply learned Counsel for the appellant has cited judgment of Hon''ble Apex Court in the matter of Banarsi Dass Vs. State of Haryana, in which Hon''ble Apex Court has held that for an offence of bribery under Prevention of Corruption Act proof of demand and acceptance of bribe is essential, mere proof of recovery of bribe money from accused not sufficient to prove offence.

Learned Counsel for the appellant has submitted that oral and tape recorded evidence regarding demand of money is contradictory and tape recorded conversation there is nothing that how much amount was demanded and the work for the demand has been made has already been done by mutation of name of complainant more than two months before the trap was arranged. He has further submitted that accused cannot be held guilty under such circumstances. In support of his argument, he has cited judgment of Hon''ble Apex Court in the matter of Ganga Kumar Srivastava Vs. The State of Bihar, in which it has been held that the Courts below erred in discarding the material produced by the appellant to show that the electricity connection was given on 22.6.1985 and not on 8.7.1985 and, therefore, there was no occasion for demand and acceptance of bribe either on 25.6.1985 and 26.8.1985 for supplying of electricity connection. On this ground, the conviction of the appellant has been set-aside by the Hon''ble Apex Court.

Learned Counsel for the respondent has also cited judgment of Hon''ble Apex Court in the matter of M. Narsinga Rao Vs. State of Andhra Pradesh, in which it has been held that presumption u/s 20(1) of Prevention of Corruption Act is "Cumpulsory" and not "discretionary". If the prosecution proved that accused received gratification from complainant, in the circumstances Court can draw legal presumption that said gratification was accepted as reward for doing public duty but looking to the latest judgment of Hon''ble Apex Court in the matter of Banarsi Dass (supra) as mentioned above, mere proof of recovery of bribe money from accused is not sufficient to prove the offence. In the present case, the evidence regarding the demand of money is not reliable considering the fact that complainant had changed the ground for demand of money in his crossexamination. Further the earlier ground for which trap was arranged has not been established because order of Tehsildar has already been complied by accused appellant much before the trap was arranged, therefore, there was no occasion for the accused to demand money for making compliance of order of mutation passed by Tehsildar, therefore, the judgment cited by learned Counsel for the respondent, is not applicable to the present case.

Therefore, considering the fact that the very reason for demand of money has not been proved by the prosecution, more correctly the ground for demand of money for the compliance of mutation in the revenue record according to us passed by Tehsildar was not in existence on the day the complainant has approached the Authorities of Lok Ayakut for trap. On the other hand, the complainant has accepted that there was negotiation between him and his family and accused regarding purchase of Soyabean seed from the accused and there was demand notice against his father for which he has gone to pay amount to the accused who had directed the complainant to deposit the amount in the Tehsil Office. Complainant''s intention for falsely implicating the appellant accused is also clear from the fact that inspite of the warning by the Lok Ayakut Authorities he has twice touched the amount kept in his pocket smeared with Phenolphthalein Powder so that accused can be trapped even if he shakes hand with him, therefore, neither the demand of money has been proved beyond reasonable doubt nor the payment of amount for that demand has been proved. On the other hand, the complainant has changed their ground for demand of so called bribe at the time of his cross-examination, therefore, no presumption can be drawn against the appellant accused for the gratification of seizure of Rs. 700/- from his possession. Hence, the learned Trial Court is not justified in convicting the appellant for the charges framed against him. The appeal is allowed. The judgment passed by the learned Lower Court is set-aside and the appellant is acquitted from the charges of offence punishable u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. The amount seized be confiscated and deposited in the Treasury.