Madhya Pradesh High Court
Indresh Khilari vs The State Of Madhya Pradesh on 14 March, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 14TH OF MARCH, 2023
Criminal Appeal No.11587/2022
Between: -
Indresh Khillari S/o Late Shri Hira Singh,
Aged: About 62 years, Occupation: Government Servant (Retired),
R/o: 77, Umesh Nagar, Annapurna Road, Indore District Indore (MP)
.....APPELLANT
(By Ms. Mayuri Jain, learned counsel)
AND
The State of Madhya Pradesh Through
Special Police Establishment, Lok Ayukta,
Indore, District Indore (MP)
.....RESPONDENT
(By Mr. Raghvendra Singh Raghuvanshi, learned counsel)
________________________________________________________________________________________________________
Heard learned counsel for the parties on the question of admission.
Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure, 1973 is admitted for final hearing.
Also heard on IA No.15883/2023, FIRST application under Section 389
of the Code of Criminal Procedure, 1973 for suspension of jail sentence and
grant of bail filed on behalf of the appellant.
Vide judgment dated 06.12.2022 (Annexure A/1) passed by learned
Special Judge (under PC Act), Indore, District Indore (MP) in Special Sessions
Trial No.29/2015, the present appellant has been convicted for commission of
offence punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-03-2023
18:07:27
the Prevention of Corruption Act, 1988 (herein after referred to as the Act) and
sentenced to undergo four years rigorous imprisonment plus fine amount of
Rs.2,000/- along with default stipulation under each section of the Act.
As per the prosecution story, complainant Deepak Singh Gurjar (PW-7)
made a written complaint on 22.09.2014 in the Office of Superintendent of
Police, Special Police Establishment, Lok Ayukta, Indore that he is the Vice
President of Atharva Cooperative Society, Lok Nayak, Indore (MP), and for the
purpose of registration of the said Society, he submitted an application in the
Office of Registrar, Cooperative Societies, Jail Road, Indore (MP). He met
Indresh Khillari, Clerk (the present appellant), who demanded a sum of
Rs.15,000/- (rupees fifteen thousand) from him. Under pressure, he gave
Rs.5,000/- (rupees five thousand) on the aforesaid day; and agreed to give the
remaining amount of Rs.10,000/- (rupees ten thousand), but now he does not
want to give him bribe and wanted to catch him red handed.
The complaint was entertained. He was given a Voice Recorder to record
the conversation. After recording the conversation, the same was verified and
he was directed to arrange a sum of Rs.10,000/- (rupees ten thousand) for the
purpose of trap. On 26.09.2014, a Trap Team was constituted. Phenolphthalein
Powder was applied in the currency notes of Rs.10,000/- (rupees ten thousand)
and handed over to the complainant. He was explained the procedure for
handing over the bribe to the appellant.
As per prosecution story, when the complainant tried to give bribe money
of Rs.10,000/- (rupees ten thousand) to this appellant, he instructed him to give
this money to Inder Lal Dabi S/o Late Shri Bherulal. After handing over the
tainted money, the complainant gave a signal; and two Constables immediately
came inside and caught hold the hands of Inder Lal Dabi, but the appellant fled
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-03-2023
18:07:27
away from the room. The remaining Members of the Trap Team entered in the
room and recovered an amount of Rs.10,000/-. This appellant was later on
arrested on 28.09.2014.
After completing the investigation, the charge sheet was filed. Both the
accused persons (the appellant and Inder Lal Dabi) were tried for offences
punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act
and also under Section 120-B of the Indian Penal Code, 1860.
After the entire trial, the appellant alone has been convicted under
Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act whereas Inder Lal
Dabi has been acquitted from all the charges; hence, this appeal.
Learned counsel appearing for the appellant submits that the appellant has
been convicted, because he made a demand of Rs.10,000/- (rupees ten thousand)
as bribe, but as no tainted money was recovered from his possession, therefore,
acceptance of bribe has not been proved. Hence, he has wrongly been convicted
under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act. It is further
submitted that so far as the charge under Section 120-B of the IPC is concerned,
the appellant has been acquitted; and there is no cross appeal filed against the
acquittal of Inder Lal Dabi.
Learned counsel also submits that once the appellant has been acquitted
from the charge punishable under Section 120-B of the IPC, then he cannot be
convicted under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act
alone, because there is no acceptance of bribe by him and no recovery from him.
Hence, the jail sentence imposed on the appellant is liable to be suspended.
Shri Raghuvanshi, learned counsel appearing on behalf of the respondent
/ Special Police Establishment, Lok Ayukta opposes the aforesaid prayer by
submitting that the appellant has demanded the bribe, which has been duly
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-03-2023
18:07:27
recorded in the conversation. He cleverly did not receive the tainted money
from the hands of the complainant, but instructed the complainant to hand over
the same to Inder Lal Dabi, who had no knowledge about this bribe. Therefore,
he (Inder Lal Dabi) innocently accepted it. Therefore, he has been acquitted.
The demand of bribe alone is sufficient to convict the appellant. In this case,
conversation at the time of handing over the bribe money was also recorded.
The similar issue came up for consideration before the Apex Court in case
of Dashrath Singh Chauhan v. Central Bureau of Investigation reported in
(2019) 17 SCC 509 decided on 09.10.2018. Paragraphs 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. State of 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
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-03-2023
18:07:27
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)."
In the present case, the appellant is in jail since 06.12.2022, the date of the
impugned judgment; and now, he is going to complete around three months in
jail.
In view of the above, considering the facts and circumstances of the case
and having examined the entire record as well as keeping in view the
submissions, as advanced by the learned counsel for the parties, prima facie, the
appellant has been able to make out a case for suspension of custodial sentence.
Hence, the application for suspension deserves to be allowed.
Accordingly, the application (IA No.15883/2022) is allowed and it is
directed that subject to deposit of the fine amount with the trial Court (if not
already deposited) and furnishing personal bond in the sum of Rs.50,000/-
(Rupees Fifty Thousand) with one solvent surety in the like amount to the
satisfaction of the trial Court for his / her 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 / her presence before the Registry of this Court on 11.12.2023
and on all such subsequent dates, as may be fixed in this behalf by the Registry
during the pendency of this appeal.
List the matter for final hearing in due course.
(Vivek Rusia)
Judge
rcp
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-03-2023
18:07:27
