Madhya Pradesh High Court
State Of M.P. vs Dr. Anil Sinha on 15 March, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 15TH OF MARCH, 2023
Criminal Appeal No.771/1999
Between: -
The State of Madhya Pradesh, Through
Special Police Establishment, Lok Ayukta,
Ujjain, District Ujjain (MP)
.....APPELLANT / PROSECUTION
(By Shri Vaibhav Jain, learned counsel)
AND
Dr. Anil Sinha S/o Dr. B.M. Sinha,
Age: 46 years, Occupation: Medical Officer (under suspension),
R/o 68, Mangal Colony, Ujjain, District Ujjain (MP)
.....RESPONDENT
(By Shri Dinesh Kumar Tiwari, learned counsel)
________________________________________________________________________________________________________
Reserved on: - 15.02.2023
Delivered on: - 15.03.2023
________________________________________________________________________________________________________
This CRIMINAL APPEAL coming on for hearing/judgment this day,
Hon'ble Shri Justice Vivek Rusia, passed the following:
JUDGMENT
The State of Madhya Pradesh through Special Police Establishment (Lok
Ayukta), Ujjain has filed this appeal under Section 378 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the Code) against the judgment of
acquittal dated 01.02.1999 passed by the learned First Additional Sessions
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 16-03-2023
12:45:09
&Special Judge (under Prevention of Corruption Act, 1988) Ujjain, District
Ujjain (MP) in Special Sessions Trial No.04/1998, whereby the respondent
herein has been acquitted from charges of corruption punishable under Section 7
and Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption
Act, 1988 (hereinafter referred to as the Act).
2. As per the prosecution story from 06.08.1997 to 11.08.1997, the
respondent was posted as an Assistant Surgeon & Medical Officer, Orthopedics
Department in District Hospital, Ujjain, District Ujjain (MP). On 06.08.1997,
Gopal S/o Babulal (PW-1) suffered a fracture in the bone of his left hand in the
Indore city. After sustaining the facture, Gopal went to Ujjain to meet his
brother Krishnakant (PW-8). Thereafter, he (Krishnakant) was not in the house,
he met her neighbour Sunita Prajapat W/o M.L. Prajapat (PW-3), and by
evening Krishnakant also returned. The next day, the husband of Sunita and
Krishnakant took Gopal to a Private Doctor. Later onthe advice of the husband
of Sunita, Gopal was admitted to District Hospital, Ujjain, where, he was
examined by Dr Anil Sinha (the respondent herein) who advised ortho surgery.
On behalf of Gopal, Krishnakant (PW-8) entered intoa conversation with the
respondent about the expenditure to be incurred in the surgery. The respondent
called Krishnakant in his Clinic and gave prescription Ex.P/13 and Ex.P/14 and
demanded Rs.3,000/- (rupees three thousand) as Fees for the purpose of surgery;
and applied temporary plaster on the fractured hand. At that time, Krishnakant
was having only Rs.700/- (rupees seven hundred) and he borrowed Rs.1,300/-
(rupees one thousand three hundred) from Sunita by executing a receipt note
Ex.P/10. Krishnakant made a written complaint Ex. P/2 to the Lok Ayukta
Police alleging that the respondent is demanding illegal gratification for
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Signed by: RAMESH
CHANDRA PITHWE
Signing time: 16-03-2023
12:45:09
surgerywhich is supposed to be free in the Government Hospital and he wanted
to catch him red-handed.
3. Krishnakant was given a Voice Recorder and sent along with Shivkumar
Constable to record the conversation with Dr Anil Sinha. He recorded the
conversation with the respondent and handed over it to the Office of Lok
Ayukta. Thereafter, a trap was organized. Krishnakant was given 20 (twenty)
Indian currency notes in the denomination of Rs.100/- on which chemical
powder was applied.
4. A Trap Team proceeded to the Hospital and reached there. They waited
till 05.00 PM and Dr. Sinha came to his Clinic. Krishnakant entered into his
Clinic and handed over the tainted money to Dr. Sinha. Krishnakant came out
and gave a signal to Members of the Trap Team. The Investigation Officer with
members of the team entered the room and found Rs.2,000/- (rupees two
thousand) below the Paper Tray lying on the Table of the respondent. On
recovery of the currency notes, the numbers were matched. The hands of Dr.
Sinha were washed with the Chemical Water, which turned pink. Thereafter,
the glass and tray were cleaned with cotton and dipped in the solution which
turned pink. Therefore, prima facie the acceptance of bribe was found
established. Thereafter, the remaining procedure was completed. The
respondent DoctorAnil Sinha was arrested and released on bail.
5. First Information Report (FIR) was registered and the charge sheet was
filed. The charges were framed, which the respondent denied to the extent that
he did not accept an amount of Rs.2,000/- (rupees two thousand) as a bribe, but
as a Fee for surgery in his private clinic. He has also admitted the conversation
recorded in the Voice Recorder. He has also admitted the recovery of an
amount of Rs.2,000/- from his table.
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 16-03-2023
12:45:09
6. Learned Special Judge has considered the issue of whether Rs.2,000/- was
an illegal gratification, or it was given as a Fee to the respondent, in order to
attract Section 20 of the Act. The respondent has produced Ex.D/1 Bill and
Ex.D/2 affidavit to show that he purchased a plate, medicines and other material
for the purpose of surgery of Gopal and for which he charged Rs.2,000/- from
Krishnakant.
7. After appreciating the evidence that came on record, the learned Special
Judge has held that the prosecution has failed to prove that the respondent
demanded Krishnakant of Rs.3,000/- asa bribe amount for performing surgery in
the Government hospital, in fact, he demanded as a cost of surgery out of which,
an amount of Rs.2,700/- was spent for purchase of apparatus & plate, and
remaining amount for purchase of medicines.
8. The learned Special Judge has held that when Gopal and Krishnakant
were residents of Indore and Gopal could have got better treatment from a
Hospital / Private Hospital in Indore itself, then why they came all the way to
Ujjain for the purpose of surgery in the Government hospital; and it appears that
Sunita (who is having a political background) has tried to falsely implicate this
respondent; and accordingly, vide impugned judgment dated 01.02.1999, the
respondent has been acquitted from all the charges. Hence, this appeal has been
filed by the prosecution before this Court.
Submissions of the appellant / SPE
9. Shri Vaibhav Jain, learned counsel appearing for the appellant argued that
undisputedly the respondent was a Public Servant at that point in time when
there was a ban on Private Practice by a Government Doctor, as stated by Dr.
(Smt.) Kanak Saxena (PW-6) and Dr. Saraf (PW-7) in the court. It is also not in
dispute that Gopal suffered a fracture and for his treatment, he met his brother at
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 16-03-2023
12:45:09
Ujjain thereafter on the advice of Sunita, he met the respondent, who advised
him for surgery in his private clinic. It is not a defence of the respondent that he
had previous enmity with Sunita and she planned a trap to falsely implicate this
respondent. In absence of any such defence, the learned Special Judge has
wrongly presumed that Sunita (due to her political pressure) organized this trap.
The respondent has admitted that the fact of acceptance of Rs.2,000/- (rupees
two thousand) in his Private Clinic for the purpose of surgery on Gopal, was not
permissible. Therefore, acceptance of Rs.2,000/- comes under the category of
"illegal gratification". Hence, the impugned judgment is liable to be set aside;
and the respondent is liable to be convicted under Sections 7 and 13 (1) (d) read
with Section 13 (2) of the Act.
Contentions of the respondent
10. Shri Dinesh Kumar Tiwari, learned counsel appearing for the respondent
submits that the scope of interference by the High Court against the judgment of
acquittal is very limited. Once, the learned Special Judge appreciated the
evidence; and held that Rs.2,000/- (rupees two thousand) was not
received/accepted by the respondent as "illegal gratification", but it was the
remuneration for the purpose of surgery on Gopal. There was no reason for
Gopal to travel with fractured lag all the way from Indore to Government
Hospital, Ujjain for surgery, when much better medical facilities were available
in Indore also. Even otherwise, Gopal has also admitted that after the surgery,
the entire expenditure was incurred by Red Cross Society. Therefore, there was
no question of demanding any bribe from him by the respondent, hence no
interference is called for and criminal appeal is liable to be dismissed.
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 16-03-2023
12:45:09
Appreciations & Conclusion
11. It is important to understand that Gopal, who suffered a fracture and
contacted this respondent for the purpose of surgery did not make any complaint
to the Special Police Establishment. There is no conversation between Gopal
and the respondent. On behalf of Gopal, Krishnakant had a conversation with
the respondent; and thereafter, made a written complaint to the Lok Ayukta
Police along with Sunita, upon which, a trap was organized. The transcript of
the conversation between Krishnakant and Dr. Anil Sinha is marked as Ex.P/3.
That is usual a conversation between a doctor and a patient in respect of the
settlement of Fees for the purpose of surgery. There is no such conversation
that the surgery in the hospital is free, but for that, an amount of Rs.3,000/-
would be charged by the doctor for surgery. In the conversation, Krishnakant
told that an amount of Rs.1,000/- has been arranged, and the respondent replied
that it is an insufficient amount to purchase the material from the market. Then
again Krishnakant told that before payment of Rs.2,000/-, the patient be not
discharged. This normal conversation between a patient and a doctor, can notbe
said to be about a demand for "illegal gratification".
12. Even otherwise, Gopal (PW-1) in his examination-in-chief has said that
the respondent has demanded an amount of Rs.3,000/- (rupees three thousand)
towards Fees and medicines would be purchased independently from the
market. Gopal (PW-1) has not been declared hostile by the prosecution.
Therefore, the respondent has rightly come up with the defence that he
demanded Rs.3,000/- (rupees three thousand) as Fees for surgery. In the case of
V. Sejappa v. State, (2016) 12 SCC 150 the following view has been taken by the
Supreme Court of India:-
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 16-03-2023
12:45:09
18. It is well settled that the initial burden of proving that the accused
accepted or obtained the amount other than legal remuneration is upon the
prosecution. It is only when this initial burden regarding demand and
acceptance of illegal gratification is successfully discharged by the
prosecution, then the burden of proving the defence shifts upon the
accused and a presumption would arise under Section 20 of the Prevention
of Corruption Act. In the case at hand, all that is established by the
prosecution was the recovery of money from the appellant and mere
recovery of money was not enough to draw the presumption under Section
20 of the Act.
13. Krishnakant (PW-8) has also stated in para 2 of his deposition that the
surgery was scheduled on Tuesday and an amount of Rs.3,000/- for surgery was
demanded by the Doctor. Sunita (PW-3) accompanied him at the time of
making a complaint to the Lok Ayukta Police.
14. After the trap, the surgery was carried out by Dr. Shahid Hussain in
Government Hospital and nothing was paid by Gopal as well as Krishnakant.
All the materials were purchased by Rogi Kalyan Samiti and for which an
amount of Rs.3,601/- (rupees three thousand six hundred and one only) was
paid, as certified by the Rogi Kalyan Samiti to the District Hospital, Ujjain.
Therefore, an amount of Rs.3,000/- (rupees three thousand) was demanded by
the respondent as Fees for the surgery and an extra amount was charged. Dr.
N.K. Saraf (PW-7) working as Medical Officer in District Hospital, Ujjain has
said that if any material is required for surgery which is not available in the
Hospital), then the patient is required to bring all these materials from the
market; and if the patient belongs to a poor family, then Red Cross Society
arrange the same. He himself stated that the patient is not in a position to bring
the special category of material, and then the doctor on his request calls the
material from the market. Even this Dr. Saraf has not been declared as hostile.
Therefore, I do not find any ground to interfere with the impugned judgment.
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 16-03-2023
12:45:09
15. In the case of V. Sejappa v. State, reported in (2016) 12 SCC 150 the
Apex court has held that merely because the appellate court on reappreciation
and re-evaluation of the evidence is inclined to take a different view,
interference with the judgment of acquittal is not justified
22. If the evaluation of the evidence and the findings recorded by the trial
court do not suffer from any illegality or perversity and the grounds on
which the trial court has based its conclusion are reasonable and plausible,
the High Court should not disturb the order of acquittal if another view is
possible. Merely because the appellate court on reappreciation and re-
evaluation of the evidence is inclined to take a different view, interference
with the judgment of acquittal is not justified if the view taken by the trial
court is a possible view. In State v. K. Narasimhachary [State v. K.
Narasimhachary, (2005) 8 SCC 364 : (2006) 1 SCC (Cri) 41] , this Court
reiterated the well-settled principle that if two views are possible, the
appellate court should not interfere with the acquittal by the lower court
and that only where the material on record leads to an inescapable
conclusion of guilt of the accused, the judgment of acquittal will call for
interference by the appellate court. The same view was reiterated in T.
Subramanian v. State of T.N. [T. Subramanian v. State of T.N., (2006) 1
SCC 401 : (2006) 1 SCC (Cri) 401]
23. In Muralidhar v. State of Karnataka [Muralidhar v. State of
Karnataka, (2014) 5 SCC 730 : (2014) 2 SCC (Cri) 690] , this Court noted
the principles which are required to be followed by the appellate court in
case of an appeal against order of acquittal and in para 12 held as under:
(SCC pp. 735-36)
"12. The approach of the appellate court in the appeal against acquittal has
been dealt with by this Court in Tulsiram Kanu [Tulsiram Kanu v. State,
1951 SCC 92 : AIR 1954 SC 1 : 1954 Cri LJ 225] , Madan Mohan
Singh [Madan Mohan Singh v. State of U.P., AIR 1954 SC 637 : 1954 Cri
LJ 1656] , Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ
1653] , Aher Raja Khima [Aher Raja Khima v. State of Saurashtra, AIR
1956 SC 217 : 1956 Cri LJ 426] , Balbir Singh [Balbir Singh v. State of
Punjab, AIR 1957 SC 216 : 1957 Cri LJ 481] , M.G. Agarwal [M.G.
Agarwal v. State of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ
235] , Noor Khan [Noor Khan v. State of Rajasthan, AIR 1964 SC 286 :
(1964) 1 Cri LJ 167] , KheduMohton [KheduMohton v. State of Bihar,
(1970) 2 SCC 450 : 1970 SCC (Cri) 479] , Shivaji
SahabraoBobade [Shivaji SahabraoBobade v. State of Maharashtra,
(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] , Lekha Yadav [Lekha
Yadav v. State of Bihar, (1973) 2 SCC 424 : 1973 SCC (Cri) 820] , Khem
Karan [Khem Karan v. State of U.P., (1974) 4 SCC 603 : 1974 SCC (Cri)
639] , Bishan Singh [Bishan Singh v. State of Punjab, (1974) 3 SCC 288 :
1973 SCC (Cri) 914] , UmedbhaiJadavbhai [UmedbhaiJadavbhai v. State
of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108] , K. Gopal Reddy [K.
Gopal Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305]
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 16-03-2023
12:45:09
, Tota Singh [Tota Singh v. State of Punjab, (1987) 2 SCC 529 : 1987
SCC (Cri) 381] , Ram Kumar [Ram Kumar v. State of Haryana, 1995
Supp (1) SCC 248 : 1995 SCC (Cri) 355] , Madan Lal [Madan
Lal v. State of J&K, (1997) 7 SCC 677 : 1997 SCC (Cri) 1151]
, Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998
SCC (Cri) 1320] , Bhagwan Singh [Bhagwan Singh v. State of M.P.,
(2002) 4 SCC 85 : 2002 SCC (Cri) 736]
, HarijanaThirupala [HarijanaThirupala v. Public Prosecutor, (2002) 6
SCC 470 : 2002 SCC (Cri) 1370] , C. Antony [C. Antony v. K.G.
Raghavan Nair, (2003) 1 SCC 1 : 2003 SCC (Cri) 161] , K.
Gopalakrishna [State of Karnataka v. K. Gopalakrishna, (2005) 9 SCC
291 : 2005 SCC (Cri) 1237] , Sanjay Thakran [State of Goa v. Sanjay
Thakran, (2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162]
and Chandrappa [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 :
(2007) 2 SCC (Cri) 325] . It is not necessary to deal with these cases
individually. Suffice it to say that this Court has consistently held that in
dealing with appeals against acquittal, the appellate court must bear in
mind the following:
(i) There is presumption of innocence in favour of an accused
person and such presumption is strengthened by the order of acquittal
passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt
when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the
appeals against acquittal are as extensive as its powers in appeals against
convictions but the appellate court is generally loath in disturbing the
finding of fact recorded by the trial court. It is so because the trial court
had an advantage of seeing the demeanour of the witnesses. If the trial
court takes a reasonable view of the facts of the case, interference by the
appellate court with the judgment of acquittal is not justified. Unless the
conclusions reached by the trial court are palpably wrong or based on
erroneous view of the law or if such conclusions are allowed to stand,
they are likely to result in grave injustice, the reluctance on the part of
the appellate court in interfering with such conclusions is fully justified;
and
(iv) Merely because the appellate court on reappreciation and re-
evaluation of the evidence is inclined to take a different view,
interference with the judgment of acquittal is not justified if the view
taken by the trial court is a possible view. The evenly balanced views of
the evidence must not result in the interference by the appellate court in
the judgment of the trial court."
25. Absence of proof of demand on 9-12-1997, coupled with PW 2's
evidence that the amount was paid by PW 1 to the appellant towards
purchase of diesel raises serious doubts about the amount being paid by
PW 1 as illegal gratification. The High Court neither considered the
defence plea of alibi nor it held that the decision of the trial court was
erroneous or perverse. In our view, evaluation of the evidence made by the
trial court while recording an order of acquittal does not suffer from any
infirmity or illegality or manifest error and the grounds on which the order
of acquittal is based cannot be said to be unreasonable. While so, the High
Court was not justified in interfering with the order of acquittal and the
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 16-03-2023
12:45:09
impugned judgment [State v. V. Sejappa, 2008 SCC OnLine Kar 620 :
2008 Cri LJ 3312] cannot be sustained.
16. In such circumstances, this court does not find any merit in the appeal and
the same is hereby dismissed.
(Vivek Rusia)
Judge
rcp
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 16-03-2023
12:45:09
