Madhya Pradesh High Court
Special Police Establishment ... vs Inderlal Dabi on 25 September, 2023
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
CRIMINAL APPEAL No. 4362 of 2023
BETWEEN:-
SPECIAL POLICE ESTABLISHMENT LOKAYUKT OFFICE THROUGH OIC
SANTOSH SINGH BHADORIA S/O LATE SHRI RAM SINGH BHADORIA,
OCCUPATION D.S.P. LOKAYUKT OFFICE, MOTI BANGLA INDORE,
(MADHYA PRADESH)
.....APPELLANT
(SHRI RAGHVENDRA SINGH RAGHUVANSHI, LEARNED COUNSEL FOR
THE APPELLANT.)
AND
INDERLAL DABI S/O LATE SHRI BHERULAL, AGED ABOUT 48 YEARS,
1.
R/O 793, RAJIV AWASS VIHAR INDORE (MADHYA PRADESH)
INDRESH KHILLARI S/O LATE SHRI HIRA SINGH KHILLARI, AGED
2. ABOUT 62 YEARS, R/O 77, UMESH NAGAR, ANNAPOORNA ROAD,
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT FOR THE RESPONDENTS.)
Reserved on : 04.09.2023
Delivered on : 25.09.2023
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This appeal coming on for orders this day, the court passed the
following:
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 25-09-2023
18:22:33
-2-
ORDER
The Special Police Establishment Lokayukt has filed this
appeal under Section 378 of Code of Criminal Procedure, 1973 against
the judgment of acquittal of respondent No.1-Inderlal Dabi under
Section 13(1)(d) and 13(2) of Prevention of Corruption Act (hereinafter
referred to as "PC Act") and Section 120-B of IPC and also against
acquittal under Section 120-B of IPC of respondent No.2-Indresh
Khillari. Indresh Khillari who has been convicted under Section 7,
13(1)(d) and 13(2) of PC Act and which he has already challenged by
way of Criminal Appeal No.11587 of 2022.
Facts of the case in short are as under:
2- From 22.09.2014 to 27.09.2014 Indresh Khillari was posted
as Upper Division Clerk in the office of Deputy Registrar, Cooperative
Society, Indore. Inderlal Dabi was also posted in the said office but in
housing branch as Upper Division Clerk. The Complainant Deepak
Gurjar was holding the post of Vice President of Atharva Sehkari Sakh
Sanstha Maryadit, Indore. He submitted a written typed complaint dated
22.09.2014 in the office of Lokayukt Indore that he is holding a post of
Vice President of the Atharva Sehkari Sakh Sanstha Maryadit, Indore,
for the registration of the society he submitted an application in the
office of Registrar, Cooperative Department, Jail Road, Indore two
months ago. For this work he met Indresh Khillari but he demanded
Rs.15,000/- as bribe, under the pressure he has given Rs.5,000/- now he
does not want to give him remaining Rs.10,000/- and willing to catch
him red handed.
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 25-09-2023
18:22:33
3- The complaint was handed over to Anil Singh Chouhan for
investigation by the Superintendent of Police the Special Police
Establishment (Lokayukt). The complainant was given a voice recorder
to record the conversation with Indresh Khillari. He met with Indresh
Khillari on 22.09.2014 with shadow witness and recorded a
conversation of demand of bribe of Rs.10,000/-, . He was directed to
give bribe money on 26.09.2014 at 4 pm in his office. After verification
of the demand of bribe another complaint was obtained from the
complainant, thereafter a Dehati Nalish was registered on 26.09.2014
under Section 7 of the PC Act. Trap team was organized by calling 2
panch witnesses, the complainant was directed to arrange currency of
Rs.10,000/- and accordingly the complainant arranged Rs.10,000/- and
handed over to the Inspector who applied the phenolphthalein powder in
the said currency for the purpose of trap of Indresh Khillari.
4- On 26.09.2014, the complainant along with trap team reached
near the office of the Deputy Registrar, the complainant met Indresh
Khillari then he called Inderlal Dabi (respondent No.1) there. Inderlal
Dabi came outside from the office of Deputy Registrar with complainant
and Indresh Khillari also came outside, Inderlal Dabi received
Rs.10,000/-, from complainant, thereafter he gave a pre-decided signal
to the member of trap team. Two constables immediately rushed and
caught hold the both the hands of Inderlal Dabi. Indresh Khillari ran
away from the spot. Rs.10,000/- tainted money was recovered, later on
Indresh Khillari was arrested on 28.09.2014 and after completing
investigation charge-sheet under Section 7, 13(1)(d), 13(2) of PC Act
and Section 120-B of IPC was filed against Indresh Khillari and charge-
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 25-09-2023
18:22:33
sheet against Inderlal Dabi was filed under Section 13(1)(d), 13(2) of
PC Act and Section 120-B of IPC.
5- Both of them denied the charges, hence the prosecution
examined 9 witnesses, in defence the respondents examined 2 witnesses.
Prosecution exhibited 44 documents, defence exhibited 3 documents.
After appreciating the evidence came on record the learned Special
Judge has held that the prosecution has failed to prove the conspiracy
between Indresh Khillari and Inderlal Dabi for taking bribe from the
complainant. It is also held that there was no such complaint or
conversation with Inderlal Dabi. He neither demanded the bribe nor
accepted money as a bribe, therefore, he is entitled for acquittal under
Section 13(1)(d), 13(2) of PC Act and Section 120-B of IPC. Since both
the accused have been acquitted under Section 120-B of IPC, therefore,
now, the Special Police Establishment Lokayukt has filed against
acquittal of Inderlal Dabi from all the offence and acquittal of Indresh
Khillari from the offence under Section 120-B of IPC.
Hence, this leave to appeal by the Special Police
Establishment (Lokayukt).
6- Shri Raghvendra Singh Raghuvanshi, learned counsel for
the applicant / SPE submits that transcript (Ex.-P/24) shows that Inderlal
Dabi actively participated in the conversation with the complainant for
giving bribe of Rs.10,000/-, therefore, there was conspiracy between
both these accused persons in respect of demand and acceptance of
bribe. From the complainant. Inderlal Dabi refused to give his voice
sample to the Investigating Agency, therefore, adverse inference is liable
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 25-09-2023
18:22:33
to be drawn. Without asking any question, Inderlal Dabi accepted the
amount hence, he was aware that this is a bribe taken by Indresh Dabi
and handed over to him. In support of his contention, he has placed
reliance on a judgment passed by the Apex Court in the case of Yogesh
Singh v/s Mahavir Singh reported in (2017) 11 SCC 195.
7- I have heard learned counsel for the appellant and perused
the record and according to which complainant submitted a written
complaint to the Superintendent of Police Lokayukt only against
respondent No.2-Indresh Khillari that he is demanding Rs.15,000/- for
registration of the society out of which Rs.5,000/- has already been
given to him . Admittedly no such complaint was made against
respondent No.1-Inderlal Dabi. The complainant entered into the
witness box as PW/7 and deposed that he made a complaint only against
Indresh Khillari for demanding Rs.15,000/- and he was not willing to
give this amount to him. During the conversation on 22.09.2014 also
Indresh Khillari demanded Rs.10,000/-.
8- In paragraph No.56 of the cross-examination, he has
admitted that the file of the registration of the society was not with
Inderlal Dabi and it is correct that he has never made any demand of
bribe, hence he has not named him in this complaint. The trap was
organized for Indresh Khillari and not for Inderlal Dabi, when he was
talking to Indresh Khillari, Inderlal Dabi was just passing from there,
therefore, there was no demand by Inderlal Dabi and also no complaint
against him, he was not the In-charge of the work of registration of the
society, no work of complainant was pending with him hence, he has
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 25-09-2023
18:22:33
rightly been acquitted from the charge under Section 13(1)(d) and 13(2)
of Pct Act.
9- So far as the conspiracy is concerned, in view of the
aforesaid discussion and material available on record, the prosecution
has failed to prove that these two respondents conspired to extract
Rs.10,000/- as a bribe from the complainant. No trap was organized to
catch Inderlal Dabi. The Supreme Court in the case of P. Satyanarayana
Murthy v. State of A.P reported in (2016) 1 SCC (Cri) 11 held that mere
recovery of tainted money is not sufficient to convict under Section
13(1)(d) and 13(2) of PC Act.
20. This Court in A. Subair v. State of Kerala [(2009) 6 SCC
587 : (2009) 3 SCC (Cri) 85] , while dwelling on the purport
of the statutory prescription of Sections 7 and 13(1)(d) of
the Act ruled that (at SCC p. 593, para 28) the prosecution
has to prove the charge thereunder beyond reasonable doubt
like any other criminal offence and that the accused should
be considered to be innocent till it is established otherwise
by proper proof of demand and acceptance of illegal
gratification, which are vital ingredients necessary to be
proved to record a conviction.
21. In State of Kerala v. C.P. Rao [(2011) 6 SCC 450 :
(2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] , this
Court, reiterating its earlier dictum, vis-à-vis the same
offences, held that mere recovery by itself, would not prove
the charge against the accused and in absence of any
evidence to prove payment of bribe or to show that the
accused had voluntarily accepted the money knowing it to
be bribe, conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the
imperative prerequisites of Sections 7 and 13 of the Act, it
has been underlined in B. Jayaraj [B. Jayaraj v. State of
A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] in
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 25-09-2023
18:22:33
unequivocal terms, that mere possession and recovery of
currency notes from an accused without proof of demand
would not establish an offence under Section 7 as well as
Sections 13(1)(d)(i) and (ii) of the Act. It has been
propounded that in the absence of any proof of demand for
illegal gratification, the use of corrupt or illegal means or
abuse of position as a public servant to obtain any valuable
thing or pecuniary advantage cannot be held to be proved.
The proof of demand, thus, has been held to be an
indispensable essentiality and of permeating mandate for an
offence under Sections 7 and 13 of the Act. Qua Section 20
of the Act, which permits a presumption as envisaged
therein, it has been held that while it is extendable only to an
offence under Section 7 and not to those under Sections
13(1)(d)(i) and (ii) of the Act, it is contingent as well on the
proof of acceptance of illegal gratification for doing or
forbearing to do any official act. Such proof of acceptance
of illegal gratification, it was emphasised, could follow only
if there was proof of demand. Axiomatically, it was held
that in absence of proof of demand, such legal presumption
under Section 20 of the Act would also not arise.
23. The proof of demand of illegal gratification, thus, is the
gravamen of the offence under Sections 7 and 13(1)(d)(i)
and (ii) of the Act and in absence thereof, unmistakably the
charge therefor, would fail. Mere acceptance of any amount
allegedly by way of illegal gratification or recovery thereof,
dehors the proof of demand, ipso facto, would thus not be
sufficient to bring home the charge under these two sections
of the Act. As a corollary, failure of the prosecution to prove
the demand for illegal gratification would be fatal and mere
recovery of the amount from the person accused of the
offence under Section 7 or 13 of the Act would not entail his
conviction thereunder.
10- Looking to the aforesaid facts and circumstances of the
case, I am of the view that findings recorded by the trial Court does not
appears to be perverse or illegal, which can be interfered by this
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 25-09-2023
18:22:33
Court. Resultantly, no grounds are available to grant leave to appeal
against impugned judgment of acquittal, hence, the Criminal Appeal is,
accordingly, dismissed.
Let a copy of this order be sent to concerned Court for
information.
(VIVEK RUSIA)
JUDGE
Divyansh
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 25-09-2023
18:22:33
