Vimla Vanshkar And Another vs State Of Madhya Pradesh Through Special Police Establishment

CONVICTION,SENTENCE,,

Section,Imprisonment,Fine if deposited details,"Imprisonment in lieu of

fine

7 of Prevention of

Corruption Act","3 years' R.I. with fine of

Rs.1,000/-",-,3 month's add. RI

13 (1) (d) read with 13 (2)

of Prevention of

Corruption Act","4 years' R.I. With fine of

Rs.1,000/-",-,3 month's add. RI

Perused the original record of trial Court.,,,

As per prosecution story, complainant and two other persons went to mutation of their names in the revenue records of the office of appellant No.1.",,,

The appellant No.1-Vimla Vanshkar being Patwari, when complainant contacted him she demanded bribe for the same. The complainant not wanting",,,

to bribe and to lodge the complaint in Lokayukt and as per plan, he paid Rs.8,000/- to appellant No.1-Vimla Vanshkar, out of the settled amount of",,,

Rs.25,000/- and rest of the amount was Rs.17,000/- was agreed to be paid later. This conversation was recorded in the voice recorder and as per",,,

plan, trap was laid. The appellant No.1-Vimla Vanshkar and appellant No.2-Mohan Gorele was caught red handed while accepting the bribe by the",,,

trap team. After completion of investigation and obtaining the sanction order, charge-sheet was filed before the Court.",,,

Now the submissions made by learned counsel for the appellants shall be considered.,,,

(i) Unreliable sanction order: It was pointed out that Radheshyam Dangi (PW-1) who has exhibited the sanction order-Exhibit-P/1 admitted that he,,,

does not recognize the signatures of sanctioning authority-Kiran Mishra and that he did not see Kiran Mishra signing the order before the witness and,",,,

therefore, the sanction order has not been proven properly.",,,

On perusal of evidence of Radheshyam Dangi (PW-1), in examination-in-chief, states that identifies the signatures of Kiran Mishra, however, submits",,,

that sanctioning authority-Kiran Mishra did not appended her signatures before this witness. In cross-examination, he denies the suggestion that he",,,

does not identified the signatures of Kiran Mishra and reiterates that he has not seen Kiran Mishra signing Exhibit-P/1. This witness is AG-II in,,,

Revenue Department in which Kiran Mishra is under Secretary and, therefore, presumably he identified the signatures of Kiran Mishra. Further, there",,,

is presumption in favour of the prosecution under Section 114(e) of Evidence Act, 1872. Kiran Mishra herself has not been examined but as held in",,,

Abdul Rehman Sheikh vs State of Madhya Pradesh reported in 2002 MPLJ 251, it is not compulsory to examine the sanctioning authority. Further,",,,

Section 19(3) of PC Act prescribes that any irregularity in sanction would not result in sentence or finding to be reversed unless there is failure of,,,

justice has been occasioned. At this stage, it cannot be stated that there was failure of justice due to any irregularity in the sanction order.",,,

(ii) That the complainant himself has turned hostile:,,,

It was pointed out that complainant-Pramod Sharma (PW-2) has turned hostile and has stated that demand of bribe was made by some other lady and,,,

acceptance of money was not taken by the same lady. Thus, it is submitted that appellants in these circumstances should have been given the benefit",,,

of doubt.,,,

Regarding this submission, the Hon'ble Apex Court in the case of Mrs. Neeraj Dutta vs State (Government of NCT of Delhi) in Criminal Appeal",,,

No.1669/2009 dated 28.02.2019 has held that even though the complainant has turned hostile, however, the charge could still be found proved from",,,

other evidence and if acceptance of bribe by the appellants found proved, then presumption under Section 20 of PC Act would apply.",,,

In the case in hand, although the complainant has turned hostile, but corroborates the prosecution story that it was appellant No.1-Vimla Vanshkar",,,

and her husband-appellant No.2-Mohan Gorele only whose hands were dipped in solution and solution had turned pink. Thus, the acceptance of bribe",,,

by the appellants have not been controverted by the complainant.,,,

The prosecution story has been corroborated by Inspector-Asha Shejkar (PW-3) and independent witness of recovery of bribe. Shri B.L. Dangi,,,

(PW-4) whose evidence at this stage cannot be termed to be unreliable. Presumption under Section 20 of PC Act is that accused accepted,,,

gratification as a motive or reward as is mentioned in Section 7 of PC Act. Thus, the appellants cannot be given the benefit of fact that complainant",,,

has later turned hostile. That the demand of bribe has not been found proved of voice recorded in the voice recorder to be that of appellant No.1-,,,

Vimla Vanshkar.,,,

(iii) That voice sample of appellant No.1-Vimla Vanshkar was not taken and voice recorded in the voice recorder was not sent to the FSL laboratory,,,

and, further that the complainant has also turned hostile and therefore the demand of bribe is not found proved:",,,

On consideration, it appears that voice sample of appellant No.1-Vimla was not taken and no notice was issued/given to her, therefore, voice",,,

recorded in the voice recorder was not sent to FSL laboratory, therefore, demand of bribe as recorded in the voice recorder has not been duly proved.",,,

However, it has been found that appellant No.1-Vimla had demanded bribe for mutation purposes and the documents pertaining to mutation of",,,

complainants name were seized from appellant No.1-Vimla and further the presumption which has been raised against appellant No.1 due to,,,

acceptance of bribe/money merely the fact that there was no matching of voice would not in itself provide relief to appellant No.1-Vimla Vanshkar.,,,

(iv) That certificate under Section 65 of Information Technology Act, 2000 could not have been given by Asha Shejkar (PW-3), as she admittedly did",,,

not operate computer:,,,

That, although typing on laptop about the proceeding was not made by Asha Shejkar (PW-3) but laptop pertains to Lokayukt Organization and was",,,

in control of Asha Shejkar (PW-3) which was made available by her only and, therefore, there was no prima-facie breach of condition of Section",,,

65(B) of Information Technology Act, 2000.",,,

(v) That the members of Trap Team did not give their own search to the appellants:,,,

Regarding this submission, it is found that neither the witnessâ€"B.L. Dangi (PW-4) nor Asha Shejkar (PW-3) has been given suggestion in their",,,

cross-examination that money/bribe was implanted on appellants. As per prosecution story, money was recovered from the pocket of shirt of appellant",,,

No.2-Mohan Gorele who is the husband of appellant No.1-Vimla Vanshkar and there is no suggestion that that B.L. Dangi (PW-4) or Asha Shejkar,,,

(PW-3) or any other member of the Trap Team had implanted this money in the pocket of shirt of appellant No.2-Mohan Gorele. Therefore, not giving",,,

personal search is not a circumstance which would favour the appellants.,,,

Thus, at this juncture, there is no such material available on record which would show that the prosecution case against the appellants is apparently",,,

unreliable and fabricated.,,,

In view of the above assigned reasons, no case for suspension of sentence and grant of bail in favour of the appellants is made out.",,,

Accordingly, IA No.3791/2019 stands rejected. List this appeal for final hearing in due course.",,,