Madhya Pradesh High Court

Prahaladsingh Kshatriya vs The State Of Madhya Pradesh on 30 November, 2021

Author: Vivek Rusia

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                                                          CRA No.4781/2021



HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
    (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                       CRA No. 4781 of 2021
              (Prahladsingh Kshatriya V/s. State of M.P.)

Date: 30.11.2021 :
      Appellant by Shri Ashish Kanungo, Advocate.
      Respondent by Shri Vaibhav Jain, Advocate.

Heard on the question of admission Appeal is admitted for final hearing.

Also heard on I.A. No.22134/2021, an application filed u/s. 389(1) of Cr.P.C. for suspension of custodial sentence.

Being aggrieved by the judgment dated 6.8.2021 Special Judge (Prevention of Corruption Act), Dewas whereby the appellant has been convicted for the offence/s punishable u/s. 7 read with 13(2) of the Prevention of Corruption Act and sentenced to undergo 4-4 years RI and to pay fine of Rs.10,000-10,000/- with default stipulation, the present appeal has been filed.

As per prosecution story, on 31.7.2015 the complainants - Abhimanyu Yadav, Physical Instructor/Craft and Mukesh Parmar, Peon, Govt. Teacher Education College, District Dewas visited the office of Special Police Establishment, Ujjain and submitted a joint written application against the present appellant. As per the contents of the application, the appellant called them to inform that their pay- fixation has been done by the office of Joint Director, Education, Ujjain and for which he has given Rs.15,000/- from his pocket for which the Peon has to give Rs.500/- and he will have to give Rs.1,000/- @ Rs.250/- per stamping. Since they do not want to give bribe to him, hence the complaint is being made. They were given the voice recorder to record the conversation in respect of demand of bribe before taking any action. The complainants along with Head Constable Sameer Khan went to the office of present appellant and recorded the conversation. The digital voice recorder and the memory chord were

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returned to the Investigating Officer. After satisfying the demand by the appellant, an FIR vide Crime No.349/2015 was registered u/s. 7 of the P.C. Act was registered. The complainant was directed to arrange Rs.1,000/- in order to give to the appellant in a trap proceeding. A team was constituted. The complainant gave a money of Rs.1,000/- to the present appellant and gave a signal to the members of trap team. Two of them entered into the chamber of appellant and caught both the hands of the appellant. On his disclosure, tainted money of Rs.1,000/- was recovered from the shelf of almirah. Numbers of currency notes were matched and the proceedings were completed. After completing the investigation, charge-sheet was filed before the Special Judge. Charges u/s. 7, 13(1)(d) read with Section 13(2) of the P.C. Act were framed. The appellant denied the charges and pleaded for trial. The prosecution examined the witnesses and produced the documentary evidence. In defence, the appellant examined and also examined Abhijeet Singh as D.W.1; Lalita Bawge as D.W.2. After appreciating the evidence led by the prosecution and the defence taken by the appellant, learned Special Judge vide judgment dated 6.8.2021 has convicted and sentenced the appellant, as stated above. Hence, the present appeal.

Learned counsel for the appellant submits that the appellant has been falsely implicated in the offence. He had a dispute with the complainant since 2013. He was under an impression that he had to vacate the hostel on a complaint made by the present appellant and thereafter, he threatened him to see the dare consequences. The appellant never demanded the money either for himself or for Joint Director. No work was pending and the file was with one Madam working in the office. Therefore, there was no question of demanding any money. Since the pay-fixation was already done in respect of 6 th Pay Commission of the employees working in the College, therefore, as per practice, they agreed to collect the money for thanks giving party to the staff of Joint Director's office and for which the collection

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was being made. The conversation was recorded only in respect of the said money and not for any illegal gratification. It is further submitted that the appellant was not caught from the office, but he was in the Canteen along with other staff. The money was not recovered from him and it was illegally kept in the almirah of office by the complainant himself and wrongly shown the recovery. It is further submitted that the appellant is aged about 60 years with unblemished record. This appeal is of 2021 and there is no likelihood of final hearing in near future. He was on bail during trial and he has not misused the liberty. He is a good case to succeed in the appeal. The defence evidence given by him has not been considered by the learned Special Judge. He is in jail since last almost four months. He will mark his presence regularly before this Court during pendency of appeal. He, therefore, prayed for grant of suspension of sentence to the appellant.

Shri Vaibhav Jain, learned counsel appearing for the respondent/Special Police Establishment, opposes the prayer by submitting that the appellant took the plea of alibi then the burden was on him to establish the same, but none of the witnesses has said that during the trap he was in the Canteen. In the conversation recorded by the complainant, there was a demand of Rs.1,000/- from the present appellant. The trap was successful, hence he has rightly been convicted u/s. 7 read with Section 13(2) of the P.C. Act. No case for suspension of sentence is made out. The application is liable to be rejected.

I have perused the record and given a thoughtful consideration to the arguments advanced by the learned counsel for the parties.

Prima face, in the conversation, there is no specific demand in respect of doing the work. As admitted by the complainant in the cross-examination, the pay-fixation was already done on 30.7.2015 i.e. before making complaint. From the conversation recorded, it reveals that the file of pay-fixation was not in the office of the appellant. The appellant has got exhibited certain documents to show that there was

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some previous dispute between the appellant and the complainant and the complainant had to vacate the hostel and had to shift in a rented house. On 30.7.2015, he had requested the Principal for repair in his house and on the next date he has made the complaint against the present appellant. The appellant is aged about 60 years. He was bail during the trial and he has never misused the liberty. There is no likelihood of final hearing of the appeal in next 3-4 years. Hence, the application for suspension deserves to be allowed.

Accordingly, the application (I.A. No.22134/2021) is allowed and it is directed that subject to deposit of the fine amount with the trial Court (if already not deposited) and furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before the Registry of this Court, the execution of custodial part of the sentence shall remain suspended till the final disposal of this appeal. The appellant after being released on bail shall mark his presence before the Registry of this Court on 20.09.2022 and on all such subsequent dates, as may be fixed in this behalf by the Registry during the pendency of this appeal.

Before releasing the appellant from the custody, the Jail Authorities are directed to medically examine him in order to rule out the possibility of COVID-19 infection and shall comply with the direction given by the Apex Court in Writ Petition No.01/2020. I.A. Nos 22133/2021 also stands disposed of.

List the matter for final hearing in due course.

( VIVEK RUSIA ) JUDGE Alok/-