Shyam Behari Saxena vs State
2023 Latest Caselaw 4997 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 87
 

 
Case :- CRIMINAL APPEAL No. - 930 of 1985
 

 
Appellant :- Shyam Behari Saxena
 
Respondent :- State
 
Counsel for Appellant :- A.K. Goel,Amit Kumar Srivastava,Prashant Vardhan,Sharad Kumar
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dinesh Kumar Singh,J.

1. Heard Sri Rakesh Dubey and Sri Sharad Kumar, learned counsels for the accused appellant and Sri P.K. Bhardwaj, learned Additional Government Advocate for the State and perused the record.

2. The present appeal under Section 374 Cr.P.C. has been instituted against the judgment and order dated 27.03.1985 passed by the Special Judge/Additional Sessions Judge, Hamirpur in Special Criminal Case No. 03 of 1983 awarding sentence of rigorous imprisonment for two years under Section 161 I.P.C. and two years rigorous imprisonment under Section 5(2) of the Prevention of Corruption Act, 1947 along with fine of Rs.5,000/- and further in case of default of payment of fine one year's additional rigorous imprisonment.

3. Learned trial court has convicted the husband of the appellant (since deceased) for offences under Section 161 Cr.P.C. and Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo two years' rigorous imprisonment for both offences with fine of Rs.5,000/-; and with a direction that both the sentences will run concurrently except for fine and in the event of non payment of fine the accused applicant to undergo one years' further rigorous imprisonment.

4. The accused appellant was posted as Assistant Consolidation Officer at Village - Bendo, Tehsil Panwadi, the then District- Hamirpur (now Mahoba). The complainant Badriprasad (P.W.-2) on 03.08.1981 went to the office of the accused appellant and on enquiry he was informed that he had been given a chak over Plot No. 59/3 whereas the complainant wanted to have his chak over Plot No. 59/5. The allegation is that the accused appellant demanded Rs.100/- as bribe amount for giving the chak to the complainant over Plot No. 59/5. The complainant was asked by the accused appellant to come on 11.08.1981 with the bribe amount.

5. The complainant thereafter wrote an application on 10.08.1981 (Exhibit - Ka 5) and gave it to Superintendent of Police, Vigilance Department, Jhansi Division, Jhansi. The Vigilance Department constituted a trap team under Sri Satish Kumar Chaturvedi, Deputy Superintendent of Police, Vigilance Department (P.W.-1). The trap team reached Panwadi Dak Bungalow on 11.08.1981. The complainant also reached to the Dak Bungalow and informed Sri Satish Kumar Chaturvedi (P.W.-1) that he had talked with the accused appellant to give him bribe amount between 9-10 a.m. The pre-trap proceedings got completed in Panwadi Dak Bungalow and two notes in the denomination of Rs.50/- were treated with Phynopthylene Powder and given back to the complainant (P.W.-2). The complainant kept those two Phynopthylene treated notes in the denomination of Rs.50/-, in his pocket. The hands of Constable Ramadhar and Badriprasad was washed with Sodium Carbonate and the water turned pink which was kept in two separate bottles and was sealed. These samples were executed as material Exhibits 1 & 2. A memo in respect of the two notes in the denomination of Rs.50/-, was also prepared and endorsed as Exhibit Ka-2.

6. As per the plan, the complainant and Constable Ramadhar went to the accused appellant. Ramadhar was introduced as a relative of the complainant. The accused appellant told the complainant that he had been given chak as per his wish and therefore, he should pay bribe amount. On this the complainant gave a total of Rs.100/- in two notes in denomination of Rs.50/-, to the accused appellant. The accused appellant kept those two notes of Rs.50/- denomination in his shirt's pocket and at that time Sri Satish Kumar Chaturvedi (P.W.-2), Murlai Manohar (P.W.-3), Jagdish Prasad (P.W.-4) and other employees who were present in the same building where the accused appellant was living, reached to the room of the accused appellant after giving introduction by the P.W.-1, the accused appellant was searched in person and two notes in the denomination of Rs.50/- were recovered from his pocket along with a bag. Both the notes were kept in separate packets and were sealed. The hands and the shirt of the accused appellant was washed and the mixture was kept in three separate bottles and endorsed as material Exhibits 3 to 5. The shirt was also sealed separately (Exhibit P-9).

7. From the bag of the accused appellant a further sum of Rs.5,280/- was recovered and this amount was also sealed separately. After completing the search proceedings, the memo of Exhibit Ka-3 was prepared by Sri Satish Kumar Chaturvedi (P.W.-1), on which the witnesses present at that time and others put their signatures. Thereafter, the case was registered against the accused appellant.

8. The investigation of the offence was carried out by Sri Satya Narain Singh Senger, Inspector in Vigilance Department who was a witness as P.W.-10. The Investigating Officer had taken statement of Sri Satish Kumar Chaturvedi, Constable Moharrir Shivswaroop, Dr. Jiyalal, Shivshankar, Badri Prasad, Murlimanohar, Jagdish Prasad, Ramadhar Pal. After completing the investigation the charge sheet (Exhibit K-14) was filed in the Court. The accused appellant had accepted that he was posted till 08.08.1981 at Village Bendo as Assistant Consolidation Officer and he had to propose the chak for the complainant. He accepted the fact that he was searched by Sri Satish Kumar Chaturvedi (P.W.-1) after he gave his introduction and notes etc. were sealed.

9. The prosecution to prove its case examined Sri Satish Kumar Chaturvedi (P.W.-1), Sri Badriprasad (P.W.-2), Murlimanohar (P.W.-3), Jagdish Prasad (P.W.-4), Kishori (P.W.-5), Head Constable Shivswaroop Singh (P.W.-6), Constable Ramadhar Pal (P.W.-7), Madanmohan Dwivedi (P.W.-8), Sri Yogesh Chandra Mishra, clerk in the consolidation office as (P.W.-9) and Sri Satya Narain Singh Sengar (P.W.-10). The report of the Forensic Science Laboratory was also proved as Exhibit-15. The complainant in his deposition has supported the prosecution case.

10. The accused appellant had also examined two witnesses, namely, Sri Lalta Prasad Sachan (D.W.-1) and Ram Gulam (D.W.-2) and himself as D.W.-3. The five witnesses, namely, Sri Satish Kumar Chaturvedi (P.W.-1), Sri Badriprasad (P.W.-2), Murlimanohar (P.W.-3), Jagdish Prasad (P.W.-4) and Constable Ramadhar Pal (P.W.-7); were eye witnesses who have fully supported the prosecution case in their depositions before the Court. Kishori (P.W.-5) in his deposition before the Court has deposed that the accused appellant was working in the office on the date of incident i.e. 11.08.1981. He also said that the accused appellant had demanded bribe amount from the complainant. Head Constable Shivswaroop Singh (P.W.-6) had proved the F.I.R. and G.D. entry (Exhibits 6 and 7 respectively). Madanmohan Dwivedi (P.W.-8) said that he had proved Exhibit Ka-8, Sri Yogesh Chandra Mishra, Clerk in the consolidation office as (P.W.-9) deposed that he was posted in the district office as Correspondence Clerk. It was also said that the order dated 08.08.1981 to relieve the accused appellant was informed to the department on 17.08.1981 and any entry before the said date was suspicious and manipulated one. The Investigation Officer Sri Satya Narain Singh Sengar (P.W.-10) had proved the charge sheet, map etc.

11. Sri Lalta Prasad Sachan (D.W.-1) in his statement has said that the work of consolidation in Village Bendo got completed in the month of July 1981 and the accused appellant had taken charge on 08.08.1981 (Exhibit Kha-1). Ram Gulam (D.W.-2) in his statement has deposed that he was posted as Assistant Consolidation Officer till July 1981 in Village Bendo and he had carried out the work of preparing the chaks. He has prepared the chak for the complainant.

12. After the evidence on behalf of the prosecution and the accused appellant, got concluded, trial court has convicted the accused appellant and sentenced him with imprisonment and fine, as mentioned above.

13. For offence under Section 5(2) of the Prevention of Corruption Act, 1947, provides as under:

"5. Criminal Misconduct.-(1) A public servant is said to commit the offence of criminal misconduct ---

.............

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may etend to seven years and shall also be liable to fine:

Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year."

14. Section 4 of the 1947 Act provides for presumption where public servant as accepted gratification other than legal remuneration and the same would read as under:

"4. Presumption w here public servant accepts gratif ication other than legal remuneration .- (1) Where in any trial of an offence punishable under section 161 or Section 165 of the Indian Penal Code or of an offence referred to in clause (a) or clause (b) of sub -section (1) of Section 5 of this Act punishable under sub-section (2) thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed t o accept or attempted to obtain that gratification or that valuable thing as the case may be, as a motive or reward such as is mentioned in the said Section 161, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under Section 165 A of the Indian Penal Code or under clause (ii) of sub -section (3) of Section 5 of this Act, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2) the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn."

15. Thus if the accused is found in possession of money which is not his legal remuneration, the statute provides that such money would be presumed to be bribe amount/illegal gratification.

16. To prove the offence under Section 5 of the Prevention of Corruption Act, 1947, the prosecution is required to prove the demand and acceptance of bribe amount. It is not only the complainant (P.W.-1) who has proved the demand and payment of bribe amount of Rs.100/- to the accused appellant but Constable Ramadhar (P.W.-7) has also gave evidence in the Court that on demand made by the accused appelant, the complainant had given two notes in the denomination of Rs.50/- each thus totaling Rs. 100/- to the accused appellant. The recovery is also fully proved. Not only the recovery of Rs.100/- but also the accused appellant was also found in possession of Rs.5,280/- for he had no explanation. This amount of Rs.5,280, found in possession of the accused appellant would be seven months' salary earned by the accused appellant. One cannot believe that a person would keep seven months' salary in his pocket rather it would be kept in bank.

17. Thus, I am of the opinion that the prosecution has been able to prove the offence against the accused appellant by leading cogent and credible evidences. In view thereof, I do not find that there is any scope for this Court to reverse well reasoned finding of the trial court. The offence against the accused appellant has been proved by the prosecution.

18. Thus, the appeal has no merit and substance, which is hereby dismissed.

Order Date :- 15.2.2023

Arun K. Singh