Sanjay vs The State Of M.P.
2023 Latest Caselaw 978 MP

                                     CRIMINAL APPEAL NO.1458 OF 1998


                             1
 IN THE HIGH COURT OF MADHYA PRADESH
                 AT JABALPUR

                       BEFORE
    HON'BLE SMT. JUSTICE NANDITA DUBEY
      CRIMINAL APPEAL NO. 1458 OF 1998

BETWEEN

     SANJAY INDRESH JAIN S/O M.C.JAIN,
     AGED 32 YEARS, SUB-ENGINEER, BLOCK
     DEVELOPMENT OFFICE, PANAGAR, DISTRICT
     JABALPUR, M.P.


                                               .....APPELLANT


                  AND

          THE STATE OF MADHYA PRADESH


                                           .....RESPONDENT

                      JUDGMENT

                Post for :       17/01/2023


                    (NANDITA DUBEY)
                         JUDGE
                        16/01/2023
                                    CRIMINAL APPEAL NO.1458 OF 1998



 IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR

                          BEFORE

      HON'BLE SMT. JUSTICE NANDITA DUBEY

         CRIMINAL APPEAL NO. 1458 OF 1998

BETWEEN

        SANJAY INDRESH JAIN S/O M.C.JAIN,
        AGED 32 YEARS, SUB-ENGINEER, BLOCK

DEVELOPMENT OFFICE, PANAGAR, DISTRICT JABALPUR, M.P.

.....APPELLANT

(BY SHRI SHARAD VERMA & SHRI SHISHIR VERMA - ADVOCATES)

AND

THE STATE OF MADHYA PRADESH

.....RESPONDENT

( BY SHRI SATYAM AGRAWAL - ADVOCATE)

Reserved on : 18.08.2022 Pronounced on : 17.01.2023 CRIMINAL APPEAL NO.1458 OF 1998

This appeal having been heard and reserved for Judgment, coming on for pronouncement this day, the Court pronounced the following :

JUDGMENT This criminal appeal is directed against the judgment of conviction and sentence dated 30.06.1998 passed by Ist Addl.Special Judge (Lokayukta), Jabalpur in Special Case No.3/1996, whereby the appellant has been found guilty for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short "the Act") and convicted and sentenced R.I. for one year and fine of Rs.1,000/- and R.I. for two years and fine of Rs.2,000/-, respectively, with default stipulations.

2. As per prosecution, at the relevant point of time, the appellant was posted as Sub-Engineer, Rural Engineering Service at the Block Office-Panagar, District-Jabalpur. Complainant Rajendra @ Rishikesh Patel was sanctioned a subsidy of Rs.14,000/- under Jeevan Dhara Yojna (Scheme) of the Government for construction of a well in his agricultural land located in Village-Imlai, Panagar. Out of this sanctioned amount, a total sum of Rs.9,180/- had already been disbursed to him in three installments, and the payment of only last installment of Rs.4,820/- was pending. According to the CRIMINAL APPEAL NO.1458 OF 1998

prosecution, the last installment of the subsidy was to be disbursed only after valuation of the construction work already done by the complainant. It is alleged that for doing the valuation, the appellant demanded Rs.500/- as illegal gratification from the complainant. Not willing to pay the bribe, the complainant, namely, Rajendra @ Rishikesh Patel, on 28.07.1995 submitted an application before the Lokayukta, Jabalpur for initiating necessary action against the appellant.

K.N.Dubey (PW.8), Deputy Supdt.of Police, Lokayukta took five currency notes in the denomination of Rs.100/- brought by the complainant for that purpose, and after completing the necessary formalities, arranged a trap on the same day i.e. 28.07.1995 itself. It is alleged that the appellant was apprehended in his office at Panagar immediately after receiving the bribe amount from the complainant, and from his possession the tainted currency notes worth Rs.500/- were recovered. Phenolphthalein test was conducted on the fingers of both the hands and pocket of the appellant's trouser gave positive result. After due investigation charge sheet was submitted against the appellant.

3. The appellant denied the charges and pleaded false implication. According to the appellant, the complainant had CRIMINAL APPEAL NO.1458 OF 1998

taken a loan from him and the currency notes recovered from his possession were given by the complainant for repayment of loan amount, and not as bribe.

4. In order to prove the charges, the prosecution examined eight witnesses. However, no evidence was led by the defence.

5. Learned Special Judge held the appellant guilty of commission of the said offence and sentenced him as aforestated. Aggrieved and dis-satisfied with the said judgment of conviction and sentence, the appellant is, thus, before this Court.

6. Learned counsel appearing for the appellant contended that the demand of bribe is not proved. There was no occasion or motive to demand the said money as the inspection and recommendation for disbursal of the amount has already given even before the complaint was lodged. It is argued that the prosecution witnesses as well as the complainant himself admitted that the amount of Rs.500/- given by him was for repayment of the loan advanced by the appellant.

CRIMINAL APPEAL NO.1458 OF 1998

7. Learned counsel appearing for the respondent/Lokayukta submitted that the burden of proof was on the accused and he having failed to explain as to how the amount of Rs.500/- was found in his possession, the Special Court has not committed any mistake in recording a finding of conviction.

8. Heard learned counsel for the parties and perused the record.

9. A scrutiny of the testimony of complainant Rajendra (PW.1) shows that being aggrieved as his last installment was not released, he filed a complaint on 28.07.1995 at 12 Noon, and on the same day, the witnesses were called and a trap was arranged at 3 PM. This witness in his examination-in-chief has stated that when he gave the amount to the accused, at that time he was alone in the room, and the accused kept the money in his pocket. However, in para 61 to 63 of his cross-examination, he admitted that he had earlier received Rs.500/- as loan from the appellant, and while giving the money to the appellant, he told him that by this money he is returning the loan amount, which corroborates the defence version that it was the loan transaction, and the complainant has only returned the loan amount.

CRIMINAL APPEAL NO.1458 OF 1998

10. R.P.Paraste (PW.3), Block Development Officer, in his testimony has admitted that the last installment could not be paid to the complainant due to some reason and as complainant was in need of money, he asked the BDO to give him Rs.500/- with the promise to pay it later on. On the direction of BDO, the appellant has given him Rs.500/-. This witness has further testified that the appellant has already done the spot inspection on 24.07.1995 and submitted the report to BDO on 25.07.1995 with recommendation that the installment should be released. His statement is corroborated by the statement of Vikas Awasthy (PW.4) who admitted that the payment was not made because the progress report was not submitted. This witness has further corroborated that vide Ex.P/9 he directed the appellant to conduct the spot inspection and prepared the valuation report which was done on 24th and report was submitted on 25 th July,1995.

11. From the testimony of R.P.Paraste (PW.3) and Vikas Awasthy (PW.4), it is evident that the appellant had advanced an amount of Rs.500/- to the complainant at the insistence of BDO on the promise that the complainant will return the same later on. It is further evident that the inspection was done on 24 th an recommendation for releasing the installment was submitted on CRIMINAL APPEAL NO.1458 OF 1998

th 25 July,1995. Under such circumstances, the appellant has no motive or occasion to demand the illegal gratification.

12. Ramsahay Tripathi (PW.2) is the shadow witness who did not see the actual transaction. According to this witness, he and the investigating officer Rizvi were standing outside the office. According to this witness, the accused when asked to take out the bribe amount from his pocket, has replied that he has not taken any bribe and it was the loan amount which has been returned by the complainant.

13. Shambhoo Dayal Tiwari (PW.6) has stated that he gave the tape recorder to the complainant to record the conversation. However, no such tape recorder or its transcript was produced by the prosecution. This witness has corroborated the statement of Ramsahay Tripathi (PW.2) that he was standing outside the office.

14. The testimony of Ramsahay Tripathi (PW.2) and Shambhoo Dayal Tiwari (PW.6) reveals that the investigating officer and shadow witness were standing outside the office. As per the complainant the transaction happened inside the room where only he and appellant were present. Since PW.2 and CRIMINAL APPEAL NO.1458 OF 1998

PW.6 were standing outside the office they could not have seen or heard what actually transpired inside the room.

15. So far as offence under Section 7 of the Act is concerned, it is settled position of law that the demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 of the Act, unless it is proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe.

16. In the present case, it is clear that nobody has seen the demand being made. Further, in view of admission of the complainant made in para 61 to 63 of his cross-examination that he handed over the amount of Rs.500/- to the appellant saying that he is returning the loan, it is evident that the amount given by the complainant was accepted by the appellant knowing it to be a return of the amount he had earlier advanced as loan to the complainant, and not as bribe.

17. In (2010) 15 SCC 1 C.M. Sharma Vs. State of Andhra Pradesh the Supreme Court while referring to the cases of (2009) 3 SCC 779 C.M. Girish Babu Vs. CBI, High Court of CRIMINAL APPEAL NO.1458 OF 1998

Cr.A. No.1434/1998 10 Kerala and (1979) 4 SCC 725 Suraj Mal v. State (Delhi Admn.) has held thus :-

"21. Mr. Rai, lastly submits that from the evidence of the prosecution witnesses the worst which can be said against the appellant is that currency notes were recovered from him. That itself, in his submission, does not constitute the offence. He submits that to bring home the charge the prosecution is required to prove beyond reasonable doubt that the accused had demanded the illegal gratification and accepted the same voluntarily. In support of the submission reliance has been placed on a decision of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, 2009 (3) SCC 779 and our attention has been drawn to the paragraph 18 of the judgment which reads as follows:

"18. In Suraj Mal v. State,(Delhi Admn.) 1979 (4) SCC 725 this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused CRIMINAL APPEAL NO.1458 OF 1998

voluntarily accepted the money knowing it to be bribe."

18. Another aspect which is clear from the scrutiny of the testimony of the witnesses is that earlier all three installments have been disbursed on the basis of valuation conducted by the present appellant who had not made any demand or bribe on any occasion. Further the inspection was already carried out by the appellant on 24th and valuation report/recommendation to release the installment was already made on 25 th of July,1995. Thereafter nothing remained on part of the appellant to be done. Under such circumstances, the appellant had no motive or occasion to demand the bribe as held earlier.

19. It is well settled that even in a case where burden is on the accused, the prosecution must first prove the foundational facts and the accused is only required to establish its case by preponderance of probabilities as is done by a party in a civil proceeding, and it is not necessary that he should establish his case beyond reasonable doubt. In A. Subair vs. State of Kerala (2009) 6 SCC 587, the Hon'ble Supreme Court reiterated that the prosecution has to prove the charge under Section 7 and 13(1)(d) of the Act beyond reasonable doubt like any other criminal offence and the accused should be considered CRIMINAL APPEAL NO.1458 OF 1998

innocent till it is established otherwise by proper proof of demand, and acceptance of illegal gratification is the vital ingredient necessary to be proved to record a conviction.

20. For the reasons stated hereinabove, I am unable to uphold the conviction and sentence awarded to the appellant by the learned Special Judge.

21. Resultantly, this appeal succeeds and is hereby allowed. Conviction of appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Act is hereby set aside and he is acquitted from all the charges. The amount of fine, if deposited, be refunded to him. The appellant is on bail. His bail bonds shall stand discharged and he be set at liberty forthwith, if not required in connection with any other case.

(Nandita Dubey) Judge 17.01.2023

jk.

Digitally signed by JITIN KUMAR CHOURASIA Date: 2023.01.18 13:09:13 +05'30'