Bharat Goyal vs The State Of Madhya Pradesh
2023 Latest Caselaw 3522 MP

                                            -1-
            IN THE HIGH COURT OF MADHYA PRADESH
                                    AT INDORE
                               CRA No. 2434 of 2023
                      (BHARAT GOYAL Vs THE STATE OF MADHYA PRADESH)



Dated : 28-02-2023

       Shri Satyendra Kumar Vyas, learned Senior Advocate along with

Ms. Neha Yadav, learned counsel for the appellant.

       Shri Raghvendra Singh Raghuvanshi, learned counsel for the

Special Police Establishment.

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Heard on the question of admission.

Admit.

Also heard on I.A. No.2247/2023, which is FIRST application under Section 389(1) of Code of Criminal Procedure, 1973 for suspension of remaining jail sentence and grant of bail filed on behalf of appellant- Bharat Goyal.

The appellant has been convicted under Section 7 of Prevention of Corruption Act, 1988 and sentenced to undergo 4 years' R.I. with fine of Rs.2,000/-, Section 13(1)(d) r/w Section 13(d) of PC Act and sentenced to undergo 4 years' R.I. with fine of Rs.2,000/- with default stipulation. Appellant has been convicted vide judgment dated 07.02.2023 passed by Special Judge (P.C. Act).

Facts of the case in short are as under:

From 09.08.2016 to 07.10.2016, this appellant was posted as

Manager of Narmada Jhabua Gramin Bank, Sudama Nagar Branch, Indore. Another Bholaram was posted as office boy in the said branch, the complainant Devdas Makwana applied for loan of Rs.2,00,000/- to purchase an auto rikshaw. He was claiming subsidy of Rs.40,000/- and requested appellant to credit in his account. According to the complainant, for crediting the subsidy of Rs.40,000/- he demanded Rs.20,000/- as a bribe. Devdas made a complaint to Special Police Establishment, Indore on 05.10.2016 Exhibit P/3, he was given a voice recorder to record the conversation in respect of demand of bribe thereafter, he again met the complainant on 05.10.2016 at 05:30, the appellant demanded Rs.15,000/- as a bribe but the complainant agreed to give Rs.10,000/- on 06.10.2016 at 11:00. The complainant was directed to arrange the currency for the purpose of trap. A trap team was constituted, Rs.6,000/- were prepared to be given as a bribe and the procedure was explained to the complainant. On 07.06.2016 the team reached to the bank, the complainant entered into the bank and gave Rs.6,000/- to Bholaram Chouhan and gave a signal to the member of trap team thereafter, all of them came inside the bank and recovered Rs.6,000/- from the pocket of Bholaram. According to Bholaram, he received the bribe money on an oral instruction of this appellant. Accordingly, FIR was registered under Section 31(1)(d) and 13(2) read with Section 151 of IPC against appellant and Bholaram. After completing the necessary procedure, charge-sheet was filed against both of them, they were jointly tried vide Special Session Case No.13/2012. After recording the evidence, vide judgment dated 07.02.2023, the learned Special Judge has acquitted the Bholaram as he was not found involved in this offence but convicted the present appellant under Section 7 and

Section 13(1)(d) r/w Section 13(2) of P.C. Act hence, this appeal before this Court.

Shri Satyendra Kumar Vyas, learned Senior Advocate for the appellant submits that this appellant has falsely been implicated in this case, he has neither demanded the bribe nor accepted the same, therefore, in such case the conviction under the aforesaid sections is bad in law. Tainted money was recovered from the appellant but he has been acquitted and the said acquittal has not been challenged till date. It is submitting that the loan of Rs.2,00,000/- was sanctioned on 09.08.2016 and the amount of subsidy at the rate of 20% was already credited in the account of complainant, therefore, there was no reason for appellant to demand the bribe, the complainant was demanding subsidy @ 30% which is not permissible for which this appellant denied and the complainant became annoyed and made a false complaint. It is further submitted that the appellant was on bail during investigation as well as on trial, he never mis- used the liberty, this appeal of 2020 will take years together to come up for final hearing.

Shri Raghvendra Singh Raghuvanshi, learned counsel for the respondent SPE opposes the aforesaid prayer by submitting that this appellant and Bholaram both have refused to give the voice sample, the transcript that he demanded the bribe from the complainant which he handed over to the ward boy working under the complainant, the office of SPE is considering to file an appeal against the acquittal of Bholaram as the trap was successful mere demand of illegal gratification is sufficient to convict the public servant under Section 7 and Section 13(1)(d) r/w Section 13(2) of P.C. Act.

Heard learned counsels for both the parties.

This appellant and Bholaram were chargesheeted under Section 13(1)(d) r/w Section 13(2) of P.C. Act and Section 120-B of IPC, there is an allegation of conspiracy that appellant has demanded the bribe and on his behalf the Bholaram accepted the bribe however, the prosecution has failed to prove the acceptance of bribe by the Bholaram hence, he has been acquitted under Section 7 and Section 13(1)(d) r/w Section 13(2) of P.C. Act and Section 120-B of IPC likewise this present appellant has also been acquitted under Section 120-B of IPC, therefore, the charge of conspiracy has not been established. The similar issue came up for consideration before the Apex Court in case of Dashrath Singh Chauhan v/s Central Bureau of Investigation reported in (2019) 17 SCC 509 decided on 09.10.2018. Paragraph No.25 to 29 of the judgment are reproduced below:

25. In our considered opinion, when the charge against both the accused in relation to conspiracy was not held proved and both the accused were acquitted from the said charge which, in turn, resulted in clean acquittal of Rajinder Kumar from all the charges under the PC Act, a fortiori, the appellant too was entitled for his clean acquittal from the charges under the PC Act.

26. It is not the case of the prosecution that the appellant had conspired with another person and even though the identity of the other person was not established, yet the appellant was held guilty for the offence under Section 120-B IPC. On the contrary, we find that the case of the prosecution was that the appellant conspired with one Rajinder Kumar to accept the sum of Rs 4000 as illegal gratification from Arun Kumar, the complainant.

27. Once Rajinder Kumar so also the appellant stood acquitted in respect of the charge of conspiracy and further Rajinder Kumar co- accused was also acquitted from the charges under the PC Act, the charges against the appellant must also necessarily fall to the ground. (See para 15 of Bhagat Ram v. Stateof Rajasthan.)

28. Even assuming that despite the appellant being acquitted of the charge relating to conspiracy and notwithstanding the clean acquittal of Rajinder Kumar from all the charges, the prosecution failed to prove the charge against the appellant under Sections 7,

13(2) read with Section 13(1)(d) of the PC Act.

29. It is for the reason that in order to prove a case against the appellant.

It was necessary for the prosecution to prove the twin requirement of "demand and the acceptance of the bribe amount by the appellant". As mentioned above, it was the case of the prosecution in the charge that the appellant did not accept the bribe money but the money was accepted and recovered from the possession of Rajinder Kumar, co-accused (A-1).

Considering the facts and circumstances of the case, I am of the considered opinion that the application for suspension of custodial sentence moved on behalf of the appellant deserves to be allowed.

Accordingly, I.A. No. 2247/2023, is allowed and it is directed that subject to depositing fine amount and on furnishing personal bond by the appellant- Bharat Goyal in the sum of Rs.50,000/- (Rupees Fifty Thousands Only) with one solvent surety in the like amount to the satisfaction of the learned trial Court and on deposit of fine amount (if not already deposited), the execution of custodial part of the jail sentence shall remain suspended, till the final disposal of this appeal. The appellant after being enlarged on bail, shall mark her presence before the Registry of this Court on 12/09/2023 and on all such subsequent dates as may be fixed by the Registry of this Court in this regard.

List for final hearing in due course.

Certified copy, as per rules.

(VIVEK RUSIA) JUDGE Divyansh

DIVYANSH Digitally signed by DIVYANSH SHUKLA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=3380667de97d13d32c7e38c6cdf101ad505b2b9a1a80f1796

SHUKLA 78aa56e1b2c1b5c, postalCode=452001, st=Madhya Pradesh, serialNumber=538643475F0C03D17250F81A88603150703101530C 81C7D5C31D2D096B40693F, cn=DIVYANSH SHUKLA Date: 2023.03.02 17:41:16 +05'30'