Madhya Pradesh High Court
Jaishanker Tiwari vs The State Of M.P. on 6 August, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
1 Cr.A. No.1241/1999
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 06TH OF AUGUST, 2024
CRIMINAL APPEAL No. 1241 of 1999
JAISHANKER TIWARI
Versus
THE STATE OF M.P.
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Appearance:
Shri Manish Datt - Senior Advocate with Shri Siddharth Datt and Shri
Ishan Tighnath - Advocates for the appellant.
Shri Amit Dave - Advocate on behalf of Shri Abhijeet Awasthi -
Advocate for the respondent/SPE (Lokayukt).
............................................................................................................................................
"Reserved on : 01/08/2024"
"Pronounced on : 06/08/2024"
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JUDGMENT
This Criminal Appeal under Section 374(2) of Cr.P.C. has been filed
against the Judgment and Sentence dated 09/04/1999 passed by Special
Judge (1st A.S.J.), Raisen in Special Case No.1/1994, by which the
appellant has been convicted and sentenced for the following offences :
S.No. Convicted under Section Sentence
1. 7 of Prevention of Corruption R.I. for 1 year and fine of Rs.
Act 1,000/- in default 3 months R.I.
2. 13(1)(d) R/w 13(2) of R.I. for 1 year and fine of Rs.
Prevention of Corruption Act 1,000/- in default 3 months R.I.
Both the sentences shall run concurrently.
2. It is the prosecution story that the Appellant was working on the
post of Patwari. He demanded Rs. 900/- for carrying out the mutation.
It is the case of the prosecution that the complainant had purchased 5.2
acres of land from Bhagwatsharan (P.W.6) by three different sale deeds.
Accordingly on 13/06/1990, the complainant Mardan Singh filed an
application before Tahsildar for mutation of his name. The Tahsildar
directed the complainant to handover the applications to the accused.
Accordingly, the application was given by the complainant to the
accused. The appellant demanded Rs. 900/- i.e., Rs. 300/- for each sale
deed for mutating the name of the complainant. The appellant had also
informed that after 2-3 days of payment of illegal gratification, the
mutation shall be done. Thereafter, the complainant discussed this
matter with his maternal uncle Ramcharan. Thereafter, they decided to
get the appellant trapped and accordingly a written complaint was filed
before SPE (Lokayukt) which was forwarded by D.I.G., SPE to Dy. S.P.
SPE, for conducting trap. Accordingly, FIR was lodged. The panch
witnesses were called. The written complaint was read over to the
complainant who admitted the contents thereof. Accordingly, currency
notes were treated with phenolphthalein powder and were kept in the
pocket of the pant of the complainant and he was instructed not to touch
the same. The complainant was also instructed not to shake hands with
the accused. After handing the currency notes, the complainant was
directed to give signal to the trap party and the shadow witnesses were
directed to try hear the conversation between the complainant and the
accused. A solution of sodium carbonate was prepared and the hands of
all the persons except Jamadar Singh, who had treated the currency
notes were dipped but the colour of the solution did not change and
when the fingers of Constable Jamadar Singh were dipped, the colour of
the solution turned into pink. The serial number of the currency notes
were also noted down and preliminary panchnama was prepared. Since,
it was already 5 P.M. and the place where transaction was to take place
was 100 Kms away from Bhopal, therefore, it is directed that the trap
shall be laid on the next day.
3. On the next day, the complainant along with the trap party went to
the house of the appellant and handed over the tainted money to the
appellant. The Appellant after accepting the illegal gratification, kept the
same on the register. The complainant after coming out of the house of
the appellant gave signal to the trap party. The appellant informed the
trap party that the money is kept under the register. The fingers of the
appellant were dipped in the solution and the colour of the solution
turned into pink. The corner of the map which was kept on the table was
also dipped in the solution and its colour also turned into pink. The
tainted currency notes were seized and their serial numbers were also
noted down. The panchnama was prepared.
4. The investigating agency after completing the investigation filed
charge sheet for offence under Sections 7, 13(1)(d) read with Section
13(2) of Prevention of Corruption Act.
5. The Trial Court by order dated 27/11/1995 framed charges under
Sections 7,13(1)(d) read with Section 13(2) of Prevention of Corruption
Act.
6. The Appellant abjured his guilt and pleaded not guilty.
7. The Prosecution examined Mardan Singh (P.W.1), Kripa Shanker
(P.W.2), Ramcharan (P.W.3), Neeraj Kumar Saxena (P.W.4), Aditya
Prakash Shrivastava (P.W.5), Bhagwatsharan (P.W.6), Ram Datt
Choudhary (P.W.7), Jamadar Singh (P.W.8), Deenanath (P.W.9), M.C.
Kawara (P.W.10), R.S. Verma (P.W.11), and R.R. Malviya (P.W.12).
8. The Appellant did not examine any witness in his defence.
9. The Trial Court by the impugned Judgment and Sentence,
convicted and sentenced the Appellant for offence under Section 7,
13(1)(d) read with Section 13(2) of Prevention of Corruption Act.
10. Challenging the conviction, it is submitted by counsel for the
Appellant that in fact the complainant had taken Rs.1,100/- from the
Appellant. Out of that the complainant had returned Rs.900/- and
therefore, he had not accepted any illegal gratification. It is further
submitted that the trap was laid in the year 1990 and 34 long years have
passed therefore, the jail sentence may not be awarded to the appellant
because at present the appellant is an old and infirm person aged about
more than 76 years. To buttress his contentions, counsel for the
Appellant has relied upon the judgment passed by Supreme Court in the
case of B.G. Goswami Vs. Delhi Administration reported in (1974) 3
SCC 85.
11. Per contra, the appeal is vehemently opposed by counsel for the
State.
12. Considered the submissions made by Counsel for the parties.
Whether the Appellant had given Rs. 1100/- to the complainant or
not? And;
Whether the amount of Rs. 900/- given by the Appellant were by
way of part refund of money?
13. It is the defence of the appellant that at the time of the execution
of the sale deeds, the complainant was short of Rs.1,100/- therefore, he
had given a loan of Rs. 1,100/- to the complainant. In order to prove the
defence that the complainant had taken an amount of Rs.1,100/- from
the appellant which was returned by him on 15/06/1990, appellant has
relied upon the photocopy of the document, Ex.D1(c) to show that the
complainant had taken an amount of Rs.1,100/- from the appellant on
21/05/1990.
14. It appears that the appellant produced a photocopy of a document
written on a plain paper to show that an amount of Rs.1,100/- was taken
by the complainant on 21/05/1990 as he was short of that much of
money for purchasing the land. The complainant - Mardan Singh
(P.W.1) was shown this photocopy of the plain paper who denied his
signatures on the same. He also denied that any amount was taken by
him from the appellant on 21/05/1990 and he also denied the execution
of any document. He also denied that an amount of Rs.100/- on two
occasions was returned by him to the appellant. (Here this Court
would like to point out another aspect of the matter which requires
attention. Although Mardan Singh (P.W.1) has denied the execution
of document acknowledging the receipt of Rs.1,100/- but still the
same was marked as Ex. D1(c). A document is always marked as
exhibit only once the execution of the same is admitted by the
witnesses. Where the execution of the document is denied, the same
should not have been marked as Ex.D1(c).) Furthermore, appellant
has not clarified as to why he did not produce the original copy of plain
paper, Ex.D1(c).
15. It is submitted by counsel for the appellant that Bhagwatsharan
(P.W.6) who had sold the property to the complainant has admitted that
at the time of execution of sale-deed, the complainant was short of
Rs.1,100/- and accordingly, it was the appellant who paid the same to
the complainant and a document was written. Thus, it is submitted that
once this fact was accepted by Bhagwatsharan (P.W.6), then it is clear
that the appellant has proved that the complainant had taken Rs.1,100/-
from the appellant.
16. Considered the aforesaid submissions made by counsel for the
appellant.
17. Bhagwatsharan (P.W.6) has stated that by different sale-deeds he
had alienated his lands to complainant - Mardan Singh, Narayan Singh
and Khoob Singh. Land to Narayan Singh and Khoob Singh was sold
prior to the sale of land to Mardan Singh. He further stated that the
application made to Tehsildar is Ex.P-12 and the second application is
Ex.P-13. In cross-examination by the appellant, this witness stated that
on 21/05/1990, he had executed the sale-deed. At the time of execution
of sale-deed, complainant was short of Rs.1,100/-. He pleaded for the
loan which was refused by him and accordingly, he, his mother and the
complainant went to the appellant to give a loan of Rs.1,100/- which
was done by him and a document was also executed in that regard.
Thereafter about a month, the complainant came to this witness and
asked for mutation of his name. Accordingly, Bhagwatsharan (PW-6)
along with complainant went to the office of Tehsildar and gave an
application for mutation. The Tehsildar directed the complainant and
Bhagwatsharan (P.W.6) to hand-over the application to the appellant.
Accordingly, the complainant and Bhagwatsharan (P.W.6) went to the
house of appellant. Appellant informed that the mutation proceedings
will take about one month but the complainant was insisting that the
mutation should be done on the very same day and accordingly, some
hot talk took place. The appellant had also stated that the complainant
should refund the money and thereafter he may do whatever he wants.
18. This witness was declared hostile and was cross-examined by the
public prosecutor. In cross-examination, he stated that he did not narrate
the incident of loan transaction to the Police but on his own tried to
explain that since the said fact was not enquired by the Police, therefore
he did not inform the same. In further cross-examination by the defence,
this witness stated that although he wanted to inform this fact to the
Police but since the Police had insisted that he should answer to the
questions put by the Police only, therefore he did not narrate the incident
of loan transaction to the Police.
19. Thus, it is clear that Bhagwatsharan (P.W.6) has supported the
prosecution case to the extent that he had executed a sale-deed in favour
of the complainant. He and the complainant went to the Office of
Tehsildar to get the name of complainant mutated in the revenue
records. The Tehsildar directed the complainant and Bhagwatsharan
(PW-6) to hand-over the application to the appellant.
20. By referring to the evidence of R.R. Malviya (P.W.12), it is
submitted by counsel for the appellant that appellant had also given a
suggestion to Shri R.R. Malviya (P.W.12) about the loan transaction but
fairly conceded that the Investigating Officer Shri R.R. Malviya
(P.W.12) had specifically denied the same. However, by referring to the
evidence of Aditya Prakash Shrivastava (PW-5), it is submitted by
counsel for the appellant that the appellant had given the copy of
document pertaining to loan transaction to this witness which clearly
means that immediately after the trap was made, appellant was insisting
that the complainant had taken an amount of Rs.1,100/- which was
being returned by him.
21. Considered the aforesaid submission made by counsel for the
appellant.
22. The trap was laid by R.R. Malviya (PW-12). The trap was laid on
15/06/1990, whereas Aditya Prakash Shrivastava (PW-5) was handed
over the investigation on 13/06/1991 i.e. after one year of the trap. Thus,
it is clear that appellant handed over a document written on a plain paper
to Aditya Prakash Shrivastava after more than one year of the trap.
Thus, the contention of appellant that immediately after the trap,
appellant was claiming that the complainant had returned the amount
which was taken by him and had also provided a copy of document
written on a plain paper, Ex.D1(c) to the Investigating Officer, is
misconceived and cannot be accepted.
23. Further, not only the original copy of document Ex.D1(c) was not
filed, even the attesting witnesses were also not examined by the
appellant.
24. Since the receipt of money by the appellant from the complainant
has not been denied by the appellant, therefore no further discussion on
the said aspect is required on this issue. Once the appellant has accepted
the fact that he had taken money from the complainant but claimed that
it was his own amount and having failed to prove the said defence, it is
clear that the money accepted by the appellant was the illegal
gratification for mutating the name of the complainant and presumption
as provided under Section 20 of Prevention of Corruption Act would
apply with full force.
25. Thus, it is clear that prosecution has successfully proved that
when an application was filed by the complainant before the Tehsildar
for mutation of his name, then it was forwarded by him with a direction
to the complainant to hand over to the appellant who was working as
Patwari. Prosecution has also successfully proved that the appellant had
demanded an amount of Rs.900/- for carrying out the mutation
proceedings and also accepted the currency notes on 15/06/1990.
26. Accordingly, it is held that guilt of the appellant for offence
punishable under Sections 7, 13(1)(d) read with Section 13(2) of
Prevention of Corruption Act has been established by the prosecution
beyond reasonable doubt. Therefore, conviction of the appellant
recorded by the Trial Court for offence under Sections 7, 13(1)(d) read
with Section 13(2) of Prevention of Corruption Act, is hereby upheld.
27. It is next contended by counsel for the appellant that since the trap
was laid on 15/06/1990 and approximately 34 long years have passed
and now the appellant is aged about more than 76 years, therefore
appellant may not be awarded jail sentence.
28. Considered the submissions made by counsel for the appellant.
29. The Supreme Court in the case of B.G. Goswami (supra) has
held as under:-
"10. As already observed, the appellant's
conviction under Section 161 IPC, was rightly
upheld by the High Court and there is no cogent
ground made out for our interference with that
conviction. The sentence of imprisonment imposed
by the High Court for both these offences is one
year and this sentence is to run concurrently. The
only question which arises is that under Section
5(1)(d), read with Section 5(2) of the Prevention of
Corruption Act the minimum sentence prescribed
is rigorous imprisonment for one year and there
must also be imposition of fine. The sentence of
imprisonment can be for a lesser period but in that
event the court has to assign special reasons which
must be recorded in writing. In considering the
special reasons the judicial discretion of the court
is as wide as the demand of the cause of
substantial justice. Now the question of sentence is
always a difficult question, requiring as it does,
proper adjustment and balancing of various
considerations which weigh with a judicial mind in
determining its appropriate quantum in a given
case. The main purpose of the sentence broadly
stated is that the accused must realise that he has
committed an act which is not only harmful to the
society of which he forms an integral part but is
also harmful to his own future, both as an
individual and as a member of the society.
Punishment is designed to protect society by
deterring potential offenders as also by preventing
the guilty party from repeating the offence; it is
also designed to reform the offender and reclaim
him as a law abiding citizen for the good of the
society as a whole. Reformatory, deterrent and
punitive aspects of punishment thus play their due
part in judicial thinking while determining this
question. In modern civilized societies, however,
reformatory aspect is being given somewhat
greater importance. Too lenient as well as too
harsh sentence both lose their efficaciousness. One
does not deter and the other may frustrate, thereby
making the offender a hardened criminal. In the
present case, after weighing the considerations
already noticed by us and the fact that to send the
appellant back to jail now after seven years of the
agony and harassment of these proceedings when
he is also going to lose his job and has to earn a
living for himself and for his family members and
for those dependent on him, we feel that it would
meet the ends of justice if we reduce the sentence
of imprisonment to that already undergone but
increase the sentence of fine from Rs 200 to Rs
400. Period of imprisonment in case of default will
remain the same."
30. Section 13(2) of Prevention of Corruption Act, as it was
applicable on the date of trap i.e. 15/06/1990, provided that the
minimum jail sentence shall be one year.
31. The Supreme Court while deciding the case of B.G. Goswami
(supra) was dealing with the provision of Section 161 of IPC where no
minimum jail sentence was provided. However, in the present case,
minimum sentence for offence under Section 13(2) of Prevention of
Corruption Act (as on 15/06/1990) was one year and thus, this Court
cannot award the jail sentence less than the minimum jail sentence
provided for the offence. Therefore, mercy pleaded by the appellant on
the question of sentence cannot be accepted.
32. Under these circumstances, the jail sentence of one year awarded
by the Trial Court for offence under Sections 7, 13(1)(d) read with
Section 13(2) of Prevention of Corruption Act, is hereby affirmed.
33. Accordingly, Judgment and Sentence dated 09/04/1999 passed by
Special Judge (1st A.S.J.), Raisen in Special Case No.1/1994 is hereby
affirmed.
34. Appellant is on bail, his bail bonds are hereby cancelled.
Appellant is directed to surrender before the Trial Court on or before
30/08/2024.
35. It is made clear that in case if the appellant fails to surrender
before the Trial Court, then the Trial Court shall be free to issue warrant
of arrest against him.
36. Let a copy of this judgment be sent to the Trial Court along with
its record for necessary information and compliance.
37. Appeal fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
S.M.
Date: 2024.08.06 15:02:04 +05'30'
