Narendra Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 6837 MP

                                                               1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT INDORE
                                                       CRA No. 3458 of 2023
                                            (NARENDRA SHARMA Vs THE STATE OF MADHYA PRADESH)

                           Dated : 27-04-2023
                                 Shri Vivek Singh, learned counsel for the appellant.

                                 Shri Raghvendra Singh Raghuvanshi, learned counsel for the
                           Respondent.

Heard on the question of admission.

Admit.

(1) Also heard on I.A. No. 3441/2023, which is a first application under Section 389 of Cr.P.C. for suspension of sentence and grant of bail.

(2) The present appeal has been filed against the judgment dated 21.02.2023 whereby the appellant has been convicted under Section 7 and sentenced to undergo three years R.I. with fine of Rs.50,000/- and in default stipulation and under Section 13(1)d read with 13(2) and sentenced to undergo four years R.I. with fine of Rs.1,00,000/- and in default stipulation.

The prosecution story is in short as under :-

(3) In the year 2015, this appellant was holding the post of President,

Nagar Palika Parishad, Sanawad. He was also heading the Appellate Committee. One Pravin Singh Solanki submitted an application for grant of permission for construction of commercial complex at Narmada Vihar Colony, Sanawad. TNCP as well as Nagar Parika Parishad have granted permission but the Appellate Committee comprising President and Ward Members stayed the construction work.

(4) According to the complainant, on 29.10.2015, he went Nagar

Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 01-05-2023 15:11:16

Parishad, Sanawad and met with present appellant for vacating the stay and close the proceedings, he demanded bribe of Rs.25,00,000/- and directed him to meet on 31.10.2015 at Apsra Hotel near Ravindra Natyagrah, Indore. He has also threatened that if the money has not been paid on 31.10.2015, he will pass an order on 04.11.2015 for demolition of construction.

(5) According to the complainant, he has no previous enmity or transaction of money with the appellant and he does not want to give bribe and wants him to catch red handed. The complaint dated 31.10.2015 was received by the S.P., Indore, complainant was given a voice recording with memory card and the shadow witness i.e. Pramod Yadav was sent with him. The complainant

met with the appellant on 31.10.2015 in Apsra Hotel, Indore and recorded the conversation about the demand. In the conversation in place of Rs.25,00,000/-, settlement arrived on Rs.20,00,000/-. After verifying in presence of witnesses, complaint was registered for the above mentioned offence.

(6) In order to organize trap team, the complainant was directed to arrange Rs.10,00,000/-, trap team was organized, tainted money was prepared for handing over to the appellant. On the same day, trap was conducted, but the complainant could not switch on the recorder to record the conversation. At 4:50, trap team reached the office of Deputy Director, Urban and Administrative, Jaora Compound, the complainant entered into the office and gave a signal to trap team. Thereafter, members of trap team member entered into inside the house, caught holding the appellant and recovered the tainted money and thereafter remaining formalities were completed. After completing investigation and obtaining the sanction, charge-sheet was filed. Charges under Sections 7, 13(1)(d) read with Section 13(1)(d) under PC Act were framed which appellant denied and pleaded that the complainant is having previous Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 01-05-2023 15:11:16

political rivalry with him. Earlier, he was holding the post of President of Nagar Palika Parishad, Sanawad. By way of conspiracy, he has falsely been implicated in this case.

(7) During the pendency of investigation, the complainant expired and he could not be examined before the trial Court. However, in order to prove the charges, prosecution examined the other witnesses before trial.

(8) Learned Special Judge has discarded the conversation recorded in the voice recorder. However, relied on transcript as well as contents of the complaint convicted this appellant in view of the law laid down in case of Neeraj Dutta Vs. State of M.P. SC Online SC 2022 1724, hence, appellant in appeal.

(9) Shri Vivek Singh, learned counsel for the appellant submits that the prosecution has utterly failed to prove the demand as well as acceptance. There was a previous political rivalry between appellant and complainant. There is no conversation in respect of demand of Rs.10,00,000/- which said to have been recovered from the possession of the appellant. There is no conversation recorded during handing over the bribe money.

(10) It is further submitted that the complaint was made on 31.10.2015 and on the same date, the conversation was recorded, verified and trap was organized. The complainant arranged Rs.10,00,000/- as an advance in Indore

whereas he is resident of Sanawad. Therefore, entire story is concocted and this appellant has falsely been implicated in the present case. The appellant was on bail during trial, he never misused the liberty so granted to him. In absence of examination of complainant, other witnesses have failed to establish the charges in view of laid down by the Apex Court in case of Neeraj Dutta (reference

Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 01-05-2023 15:11:16

case/supra).

(11) Shri Raghvendra Singh Raghuvanshi, learned counsel for the respondent submits that even if the complainant has not been examined but other witnesses established the demand as well as acceptance. The appellant has failed to explain how Rs.10,00,000/- tainted amount was recovered and why the colour of the solution turned into pink after dipping his fingers.

(12) After reference answered by the Apex Court in case of Neeraj Dutta (Supra). A criminal appeal of Neeraj Dutta came up for consideration on merit before Apex Court in which also the complainant was not examined and the Apex Court has held that there is no circumstances brought on record which will prove the demand of gratification. Therefore, the ingredients of the offence under Section 7 of P.C. were not established and consequently, the offence under Section 13(1)(d) will not be attracted. The judgment as reported in 2023 Live Law (SC) 211 Criminal Appeal No. 1669/2009 decision dated March 17, 2023. Relevant Para 16 of the said judgment is reproduced below :-

''Rest of the examination-in-chief deals with the acceptance by the appellant and recovery. Now the question is whether, on the basis of the evidence on record, the prosecution has proved the demand of gratification by the accused. When we consider the issue of proof of demand within the meaning of Section 7, it cannot be a simpliciter demand for money but it has to be a demand of gratification other than legal remuneration.

All that PW-5 says is when the appellant visited the shop of the complainant, she asked the complainant to give papers regarding the electricity meter and Rs.10,000/- to her by telling him that she was in a hurry. This is not a case where a specific Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 01-05-2023 15:11:16

demand of gratification for providing electricity meter was made by the appellant to the complainant in the presence of the shadow witness. PW-5 has not stated that there was any discussion in his presence between the appellant and the complainant on the basis of which an inference could have been drawn that there was a demand made for gratification by the appellant. The witness had no knowledge about what transpired between the complainant and the appellant earlier. PW-5 had admittedly no personal knowledge about the purpose for which the cash was allegedly handed over by the complainant to the appellant.'' (13) Learned Special Judge has discarded the conversation between the complainant and appellant about the demand of bribe when the recording of voice conversation has been discarded then transcript made on the basis of said recording cannot be said to be a good piece of evidence for the purpose of conviction. There is no shadow witness in this case also who was present at the time of initial demand on the basis of which complaint was made.

(14) In view of above discussion, the appellant has made out prima-facie good case for suspension of jail sentence, accordingly, I.A. No. 3441/2023 is allowed.

(15) It is directed that the jail sentence of the appellant shall remain suspended and he be released on bail upon his depositing the fine amount (if not already deposited) and also upon furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the trial Court for his appearance before the concerned

Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 01-05-2023 15:11:16

trial Court on 11.09.2023 and on such further dates as may be fixed in this behalf by the concerned trial Court during the pendency of this appeal.

Certified copy as per rules.

List for final hearing in due course.

(VIVEK RUSIA) JUDGE

Vindesh

Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 01-05-2023 15:11:16