Madhya Pradesh High Court
R.K.Shrivastava vs The State Of Madhya Pradesh on 21 May, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
(1) M.Cr.C. No.48392/2020
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 21st OF MAY, 2024
M.CR.C. No.48392 OF 2020
BETWEEN:-
R.K.SHRIVASTAVA, S/O SHRI SHRI
KOMAL PRASAD, AGED ABOUT 58
YEARS, OCCUPATION - SERVICE,
R/O PRIYDARSHAN PLEASURE,
HOUSE NO.10, BABADIYA KALAN,
BHOPAL
.....PETITIONER
(BY SHRI AJAY KUMAR MISHRA -SENIOR ADVOCATE WITH
SHRI SOMYADEEP DWIVEDI-ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH S.P., SPECIAL POLICE
ESTABLISHMENT, BHOPAL
DIVISION, LOKAYUKT OFFICE,
BHOPAL
.....RESPONDENT
(BY SHRI SANKALP SHARMA - ADVOCATE)
----------------------------------------------------------------------------
This petition coming on for admission this day, Justice
Vivek Rusia passed the following:
(2) M.Cr.C. No.48392/2020
ORDER
1. Petitioner has filed this petition, under section 482 of the
Cr.P.C, challenging the validity of the order dated 31/5/2018
passed in MJCR No. 01/14 by Ist ASJ, Vidisha and subsequent
order dated 22/10/2020 passed in MJCr No. 158/20 by Special
Judge, Prevention of Corruption Act, 1988 (for short "the PC
Act"),Vidisha.
2. The facts of the case, in short, are as under:-
(i) Petitioner was appointed in the Rural Engineering
Services Department and he was posted as Sub Divisional
Officer at Sironj, District Vidisha. While discharging his official
duties at Sironj, he granted administrative sanction of
Rs.1,50,000/- for the construction of a cement concrete road in
Village Tonk within Gram Panchayat Tiloni in the financial year
2008-2009. For the aforesaid work, the fund was allotted by a
local MLA and NAREGA. The aforesaid work was being
supervised by Shri R.S.Verma, Sub Engineer Janpad Panchayat
Lateri vide letter dated 17/3/2009 issued by the petitioner. Shri
Verma was instructed by the petitioner to carry out and
complete the work as per the procedure and instructions
received from higher Authorities from time to time. The Office
of Executive Engineer issued a specific instruction vide letter
dated 2/12/2009 to procure material through quotations in
accordance with settled departmental procedure.
(ii) According to the petitioner, vide letter dated 27/1/2020,
he instructed Shri R.S.Verma, Sub Engineer to stop the work of
construction of the CC Road as there was no compliance of
specification and departmental instructions. Despite that,
contractor continued with the work and submitted bills and
Form No.24 in the Office. According to the petitioner, all these
bills were not presented before him by the concerned clerk. He
inspected the site on 4/2/2010 and noticed that CC road had
been constructed contrary to the settled norms and technical
specifications issued by the department. Immediately he issued
a letter dated 10/2/2010 to Shri R.S.Verma, Sub Engineer to
cancel the entire work done by the contractor and get it redone
as per the technical specifications. The petitioner also directed
for recovery of payment from the contractor. Because of the
aforesaid strict action, Sub Engineer R.S.Verma and contractor
Surat Singh Raghuvanshi developed ill-will and a grudge
against him and made a plan to falsely implicate him.
(iii) The contractor Surat Singh Raghuvanshi submitted a
complaint to the Superintendent of Police of SPE Bhopal that
the petitioner has demanded an illegal gratification of
Rs.30,000/- to release the pending bills. After preliminary
verification, the complaint was entertained, and a trap was
organized. The complainant was called upon to arrange for
currency notes to be handed over to the petitioner. According to
the petitioner, he had never demanded such a bribe, therefore,
such an illegal trap failed. Despite that, the Investigation Officer
continued with the investigation under the provisions of S.7 of
the PC Act and directed the petitioner to give his voice sample
for matching with his voice recorded during the conversation
with the contractor/complainant in which an illegal demand was
made. The petitioner gave his voice sample on 1/7/2010.
(iv) Again after two years, vide letter dated 6/12/2012 issued
by the Investigating Officer, the petitioner was called upon to
give the voice sample. The first sample taken by the petitioner
was sent to Central Forensic Science Laboratory, Chandigarh
for comparison with the recorded conversation with the
complainant, which was rejected as the voice of the petitioner
was not clear and suitable for matching. It seems that because of
this report, the Investigating Officer called upon the petitioner
to give a fresh voice sample.
(v) According to the petitioner, during the investigation, the
Executive Engineer RES Vidisha, obtained a technical report
and photograph in respect of the construction of a road in
question. A panchnama was prepared on 15/2/2011 and the
report was submitted on 22/3/2011 pointing out various
violations and deficiencies in the construction of the road,
which justified the action taken by the Petitioner. It is further
submitted that the petitioner fully cooperated with the
Investigating Authority by remaining present as and when he
was called.
(vi) After complete enquiry, collection of evidence and due
satisfaction, the Investigating Officer prepared a closure report
dated 31/3/2014 and presented it before the Special Judge
(under the PC Act), at Vidisha. It is specifically mentioned in
the closure report that the conversation nowhere confirms the
demand for illegal gratification/bribe by the petitioner.
However, the Investigating Officer wrongly recorded in the
closure report that the petitioner had declined to give a sample
of his voice, filed by him in MJCR NO. 1/14. In support of the
report, the prosecution recorded the statement of the
complainant who stated no objection for the acceptance of the
closure report subject to payment of his pending bills.
(vii) The learned Court, vide impugned order dated 31/5/2018
rejected the closure report on the ground that the Investigating
Agency failed to carry out the identification of voice on refusal
to give voice sample by the petitioner. After rejecting the
closure report, the learned Court returned the case diary with the
direction to obtain a voice sample of the petitioner as per the
law laid down by the Apex Court in Ritesh Singh Vs. State of
U.P. (2013 SCC 357). According to the petitioner, the correct
citation is Ritesh Sinha Vs. State of U.P. (AIR 2013 SC 1132).
(viii) In compliance with the aforesaid direction, the
Investigating Officer issued notice dated 15/6/2018 to the
petitioner calling him for further investigation. Petitioner came
to know that the closure report submitted by the Investigating
Agency has been returned.
(ix) The Investigating Officer submitted an application on
6/10/2020 before the Special Court, Vidisha seeking direction to
the petitioner to give a voice sample in view of the judgment of
the Apex Court in the case of Ritesh Sinha (Supra). The
Special Court rejected MJCR No. 158/20 and issued notice to
the petitioner to submit a reply on 13/10/2020. At that time, the
coronavirus period was at a peak, therefore, the petitioner could
not appear in person and sent an e-mail showing his inability to
contact his counsel, as well as, to make an appearance before
the Court. In the absence of the petitioner, the learned Special
Judge passed the order dated 22/10/2020 directing the petitioner
to give his voice sample to the concerned Police Station.
Hence, this petition before this Court challenging the order
dated 31/5/18 (Annexure P/6) and 22/10/2020 (Annexure P/12).
3. Shri Ajay Mishra, learned Senior Counsel appearing for
the petitioner submitted that once the Investigating Officer,
within his jurisdiction, after due satisfaction concluded that
there is no material against the petitioner for his prosecution
under S.7 of the PC Act submitted closure report before the
Court, then the learned Additional Sessions Judge ought to have
accepted the said report. The learned ASJ failed to appreciate
the reason mentioned in the closure report that the conversation
recorded between the petitioner and the complainant nowhere
suggests any demand for illegal gratification by the petitioner. It
is further submitted by the learned senior counsel that even if
the petitioner's voice sample matches with the petitioner's voice,
even the demand of the bribe cannot be proved to prosecute
under section 7 of the PC Act. It is further submitted that in
support of the closure report, the complainant was also
examined in Court and he specifically stated that he had no
objection if the closure report is accepted subject to payment for
his work it means a false complaint was made against the
petitioner to get his bills released illegally . In support of his
contention, learned senior counsel has placed reliance on
judgment of the Apex Court in the case of K.Shanthamma Vs.
State of Telangana ((2022)4 SCC 574). Learned Senior
Counsel further submitted that vide letter dated 10/2/2010, the
petitioner had cancelled all the work and directed Shri
R.S.Verma, Sub Engineer to get the job redone therefore, there
was no reason for the petitioner to make a demand of Rs.4000/-
for payment of pending bills. Before sending the letter, the
petitioner had conducted the investigation and found that the
work was not upto the standard and was of extremely poor
quality. The petitioner also recommended initiation of
disciplinary action against Sub Engineer Shri R.S.Verma vide
letter dated 27/1/2010 written to Executive Engineer, RES,
Vidisha. Considering all this material, the prosecution agency
was not confident to prove the charge under section 7 of the PC
Act because it is settled law that without motive there cannot be
a demand for illegal gratification. The Apex Court in the case of
Neeraj Dutta Vs. State (Govt. of NCT of Delhi) ((2023)4
SCC 731) has held that an allegation of demand of gratification
and acceptance against a public servant is to be established
beyond a reasonable doubt. The Apex Court has also held in
catena of cases that acceptance and recovery of tainted money
itself cannot prove the charge of gratification against the
accused in the absence of any evidence to prove the demand of
bribe and voluntary acceptance of money. In view of the above,
Shri Mishra, learned Senior Counsel prays for quashment of the
impugned orders and direction to the concerned Court to accept
the closure report.
4. Shri Sankalp Sharma, learned counsel appearing for the
respondents submits that though the Investigating Officer
submitted closure report but the same has not been accepted by
the trial Court, therefore, prosecution agency is bound to
conduct further investigation to match the voice of the petitioner
with the alleged conversation. If the voice of the petitioner is
taken and matches with the conversation recorded with the
complainant, then certainly the petitioner can be prosecuted
under section 7 of the Act.
We have heard learned counsel for the parties.
5. The facts stated above are not in dispute. The letter dated
31/1/2014 submitted by D.S.P., Special Police Establishment,
Lokayukt, Bhopal before the Special Judge seeking direction to
close the prosecution for want of sufficient evidence, is
reproduced below:
izfr]
ekuuh; fo'ks"k U;k;k/kh'k egksn;]
¼Hkz"Vkpkj fuokj.k vf/kfu;e½
fo'ks"k U;k;ky;& fofn'kk ¼e0iz0½
fo"k;%& Fkkuk] fo'ks"k iqfyl LFkkiuk]
yksdk;qDr laxBu] Hkksiky ds vijk/k dzekad
20@2010] /kkjk 7] Hkz"Vkpkj fuokj.k vf/kfu;e
1988 ds izdj.k esa [kkRek dza 03@14 Lohd`r djus
ckor~A
egksn;]
izdj.k dk laf{kIr fooj.k bl izdkj gS fd
izkFkhZ Jh lwjr flag j?kqoa'kh Bsdsnkj] fuoklh&xkze
yyfp;k] rglhy yVsjh] ftyk fofn'kk us
vukosnd Jh vkj-ds- JhokLro] ,l-Mh-vks-
xkzeh.k ;kaf=dh lsok] fljkst] ftyk fofn'kk ds
fo:) :i;s 30]000@& fj'or ekaxus ds laca/k esa
f'kdk;r dh FkhA izkFkhZ us f'kdk;r esa ys[k fd;k
fd xkze Vksdk] xkze iapk;r fdyksuh] rglhy
yVsjh ] ftyk fofn'kk esa ujsxk ;kstuk ,oa
fo/kk;d fuf/k ls lhesUV&dkadzhV jksM dk fuekZ.k
djok;k FkkA bl fuekZ.k dk;Z dh vuqkefur
ykxr yxHkx 1-50 yk[k :i;s FkhA tks dk;Z gks
pqdk gS] mlds fcy ds Hkqxrku ds fy;s vukosnd
Jh vkj-ds- JhokLro] ,l-Mh-vks- xkzeh.k ;kaf=dh
lsok] fljkst }kjk fj'or ekaxh tk jgh gSA
vkosnd ds vkosnu i= ds vk/kkj ij vkjksih ds
fo:) /kkjk 7] Hkz"Vkpkj fujokj.k vf/kfu;e 1988
iathc) dj foospuk dh xbZA izkjafHkd dk;Zokgh
ds i'pkr foiqLFkk dk ny fljkst igqWpk] fdUrq
fj'or dh jkf'k dk ysu nsu vkosnd ,oa vkjksih
ds e/; ugh gks ldkA blds ckn Vsªi lQy u
gksus ij izdj.k esa /kkjk 7 ihlh,DV ds varxZr
foospuk dh xbZA vkjksih ds okbZl VsLV dk uewuk
lh,Q,l,y paMhx<+ Hkstk x;kA lh,Q,l,y
paMhx<+ }kjk okbZl lkQ ugha gksus ls iqu% okbZl
VsLV gsrq vkokt fjdkMZ djus ds fy, fy[kk x;k]
ftlds ifjisz{; esa vkjksih dks iqu% okbZl uewuk
nsus gsrq cqyk;k x;kA ijUrq vkj ih }kjk Hkkjrh;
lafo/kku ds vuqPNsn 20¼3½ ds izko/kkuksa dk mYys[k
djrs gq, fyf[kr esa crk;k x;k fd mls vius
fo:) lk{; nuss ds fy, foo'k ugha fd;k tk
ldrk] u gh og iqu% uewuk nsus dk bPNqd gSA
VªkalfLdzIV iapukek dk ckjhdh ls
v/;;u fd;k x;k] mlesa Li"V :i ls
fj'or dh ekax dk vHkko gSA i= dzekad
@39@vuqfo@09&10] fljksat] fnukad
10@02@2010 ls izrhr gksrk gS fd ,l-Mh-vks- }
kjk Bsdsnkj }kjk fd;s x;s fuekZ.k dk;Z dks
xq.koRrk Bhd u gksus ls dk;Z dks fujLr fd;k
tkrk gSA vr% dk;Z iqu% djk;s tkus ds vkns'k
lacaf/kr mi ;a=h Jh vkj-,l- oekZ tuin iapk;r
yVsjh dks tkjh fd;s x;s FksA bl i= ds tkjh
gksus ds 15 fnol ckn vkosnd }kjk vkjksih ,l-
Mh-vks- xzkeh.k ;kaf=dh lsok Jh vkj-ds- JhokLro
ds fo:) fj'or ekaxus ds vkosnu i=
vkosnd }kjk fn;s x;s bl laca/k esa dk;Zikyu
;a=h dk izfrosnu izkIr fd;k x;k og Hkh mDr
i= dh iqf"V djrk gSA
lEiw.kZ foospuk ls vkjksih Jh vkj-ds-
JhokLro rRdkyhu ,lMhvks xkzeh.k ;kaf=dh lsok]
fljksat ftyk fofn'kk ds fo:) /kkjk 7 Hkz"Vkpkj
fuokj.k vf/kfu;e 1988 ds varxZr vfHk;kstu
djus gsrq i;kZIr lk{; u gksus ls izdj.k esa vafre
izfrosnu dzekad 03@2014 fnuakd 31@01@2014
rS;kj fd;k x;k] tks Lohd`fr gsrq ekuuh;
U;k;ky; esa lknj izLrqr gSA
fnuakd 31@01@2014
¼fouksn 'kekZ½
mi iqfyl v/kh{kd
fo'ks"k iqfyl LFkkiuk
yksd vk;qDr dk;kZy;
Hkksiky laHkkx] Hkksiky
In this letter, it is specifically mentioned that upon close
scrutiny of transcript panchnama, there is no such specific
demand for a bribe. Therefore, after taking voice sample, even
if it matches with the alleged conversation, the prosecution
agency is still of the opinion that there is no specific demand of
bribe by the petitioner from the complainant. The voice in the
conversation is very clear and on the basis of which transcript
was prepared by the Investigating Officer. The voice of the
petitioner was not clear in the voice sample, but the voice was
clear in the alleged conversation. Therefore, there is no need to
take further samples from the petitioner because as per the
opinion of the Investigating Officer, the conversation nowhere
confirms the demand for bribe by the petitioner. The learned
ASJ did not examine this report submitted by the Investigating
Officer carefully while rejecting the closure report.
6. Even otherwise, vide letter dated 10.2.2010, the petitioner
had already issued direction to Shri R.S.Verma to cancel the
work and get it redone through the contractor. All the bills had
already been cancelled before so-called demand of the bribe.
There was no such motive for the petitioner to demand illegal
gratification from the complainant. The petitioner had already
recommended action against the contractor and recommended
disciplinary action against the Sub Engineer. Therefore, it
appears that there was grudge against this petitioner for his false
implication.
7. As per the statement of complainant, tainted money had
already been returned to the prosecution agency. There is no
material to show that the tainted money is still kept safely. More
than 13-14 years have expired. No disciplinary action has been
taken against the petitioner by the department and still he is
working.
8. In view of the above discussion we are of the considered
opinion that the learned courts below ought to have accepted the
closure report, hence the order dated 31/5/2018 passed in MJCR
No. 01/14 by Ist ASJ, Vidisha and the subsequent order dated
22/10/2020 passed in MJCR No. 158/20 are hereby quashed.
The FIR registered against the petitioner under section 7 of the
PC Act and further proceedings are also quashed.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
(and)
