Rajasthan High Court - Jodhpur

Vinod Kumar Pandey vs State on 4 May, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc. Appli No. 146/2021

Vinod Kumar Pandey S/o Sh. Harihar Pandey, Aged About 47 Years, R/o Thakurahat, Post Sanbar, Tehsil Bhagwanpur, Dist. Kemor (Bihar), At The Present/the Then Assistant Director Agricultural (Extension), Kotadi, Dist. Bhilwara.

----Petitioner Versus State, Through Pp, Rajasthan High Court, Jodhpur.

----Respondent Connected With S.B. Criminal Appeal (Sb) No. 211/2021 Vinod Kumar Pandey S/o Sh. Harhar Pandey, Aged About 47 Years, R/o Thakurahat, Post Sanbar, Tehsil Bhagwanpur, Dist. Kemor (Bihar), At The Present/the Then Assistant Director Agricultural (Extension), Kotadi, Dist. Bhilwara. (Lodged In District Jail, Bhilwara).

                                                                  ----Petitioner
                                    Versus
State, Through Pp
                                                                ----Respondent


For Petitioner(s)           :    Mr. D.D. Khandelwal
For Respondent(s)           :    Mr. S.S. Rajpurohit PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 28/04/2022 Pronounced on 04/05/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

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2. Although the matter came up before this Court both, on a

Criminal Misc. Application as well as the main Criminal Appeal, the

learned counsel for both parties, while consenting for the final

adjudication in the main appeal itself, made their final arguments.

Thus, the present judgment disposes the main Criminal Appeal as

well as the Criminal Misc. Application.

3. The present Criminal Misc. Application and the Criminal

Appeal, are preferred claiming the following reliefs:

In S.B. Criminal Misc. Application No. 146/2021: "It is, therefore, most respectfully prayed that this application may kindly be allowed and during the pendency of appeal operation of the impugned Judgment of conviction dated 15.2.2021 passed by the learned Special Judge, Prevention of Corruption Cases, Bhilwara, in Sessions Case No. 74/2015 [14/2012] for the offence U/s. 7, 13 [1][D], 13 [2] of Prevention of Corruption Act may kindly be Stayed."

In S. B. Criminal Appeal No. 211/2021:

"It is, therefore, most respectfully prayed that this appeal may kindly be allowed and impugned Judgment of conviction dated 15.2.2021 passed by the learned Special Judge, Prevention of Corruption Cases, Bhilwara, in Sessions Case No. 74/2015 [14/2012] for the offence U/s. 7, 13 [1][D], 13 [2] of Prevention of Corruption Act may kindly be quashed and set aside and the appellant may kindly be acquitted from the alleged offences in the interest of Justice."

4. The brief facts of the case as noticed by the Court are that

the complainant, Vinod Kumar Pareek, filed a complaint before the

A.C.B. Bhilwara on 08.03.2011, stating therein that he runs a

business of seed insecticide, in the name of Anuj Krishi Seva

Kendra at village Maanpura, and that on 07.03.2011, the accused-

appellant, Vinod Kumar Pandey, the then Assistant Director of the

State krishi/agriculture department, Kotadi, Dist. Bhilwara

inspected the shop premises of the said business run by the

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complainant and that upon noticing that a carton of seeds had

expired, which was supposedly kept aside to be disposed of by the

complainant, and that the then Assistant Director served a notice

to the complainant and directed him to be present at Kotadi the

subsequent day, which is when he allegedly demanded a bribe of

Rs. 6,000/- from the complainant so as not to initiate proceedings

against the complainant. And that, the appellant told the

complainant to come to House No. C-8, R.K. Colony, Bhilwara,

where the A.C.B. had set a trap, which was being recorded on a

D.V.R. and that on the scene, the appellant's son was present who

in turn took the bribe from the complainant. Subsequent to which,

the appellant, Vinod Kumar Pandey and his son, Prashant @

Bhanu Pandey, were arrested and F.I.R. was lodged against them

at the A.C.B. Jaipur for the offences under Sections 7, 13(1)D / 13

(2) of the Prevention of Corruption Act, 1988 (as it then stood)

and Section 120B I.P.C. and an investigation was conducted by the

S.P. Police, Bhilwara whereby the call details of the appellant were

acquired and submitted into evidence before the learned Court

below. And that the learned Court below convicted the appellant,

Vinod Kumar Pandey, for the offences under Section 7, and under

Sections 13 (1) (D) and 13 (2) Prevention of Corruption Act, 1988

(as it then stood) and sentenced him to 3 years R.I. along with a

fine of Rs. 10,000/- in default of payment of which he was to

further undergo one month S.I. and 4 years R.I. along with a fine

of Rs. 10,000/- in default of payment of which he was to further

undergo one month S.I., respectively.

5. Learned counsel for the appellant submitted that the learned

Court below has not taken into consideration the overall facts and

circumstances, and that the impugned order passed by the

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learned Court, suffers from a misreading of evidence and the

Court has, therefore, erred in convicting the appellant.

5.1 Learned counsel further submitted that the appellant was the

person who sought the alleged bribe, and that recovery from the

appellant's son makes the appellant's conviction bad in the eye of

the law.

5.2 Learned counsel also submitted that the learned Court below

acquitted the appellant under Section 120B I.P.C. since the

testimony of the son of the appellant, Prashant @ Bhanu Pandey

revealed that he had no knowledge about receiving the alleged

bribe in question, but that on the basis of the same evidence

incorrectly convicted the appellant for the offences, as above

mentioned.

5.3 Learned counsel further submitted that the appellant was in

fact, discharging his official duty as the then Assistant Director of

the State krishi/agriculture department, and the story of the

prosecution of demand and bribe is a concocted one.

5.4 Learned counsel also submitted that although the call details

of the appellant were recovered, and that they were submitted

into evidence following the due process of law i.e. through the

production of the certificate under Section 65 of the Evidence Act,

the ownership of the mobile phones, containing those phone

numbers, were not proven to be that of the appellant.

5.5. Learned counsel further submitted that the transcript of

verification demand has been created by the constable of his own

free will.

5.6 Learned counsel also submitted that the appellant was

suspended by the State of Rajasthan, at the first instance, through

the Department of Personnel, vide its order dated 13.04.2011

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when the case, bearing no. 110/2011 was instituted against him,

and that although he was reinstated into service on 12.10.11, and

upon review by the competent review committee, he was

reinstated into service on 24.09.2014.

5.6.1 Learned Counsel further submitted that however, that when

the learned Court below, vide its impugned order dated

15.02.2021, convicted and sentenced the appellant for the

offences as aforementioned, he was, vide order dated 09.07.2021

of the State of Rajasthan, through the Department of Personnel,

the appellant was 'deemed to have been suspended' from

15.02.2021 from his post as Assistant Director, at State

Krishi/Agriculture Department, Kotadi, Dist. Bhilwara.

5.6.2 Learned counsel also submitted that the appellant was

subsequently, dismissed from service by the State of Rajasthan,

through the Department of Personnel, vide order dated

30.03.2022.

5.7 Learned counsel further submitted that this Court, at its

Jaipur Bench, has acquitted the son of the appellant, Prashant @

Bhanu Pandey, of the charges under Sections 13 (1) (D), 13 (2)

Prevention of Corruption Act, 1988 (as it then stood) and Section

120B I.P.C. vide order dated 22.07.2015 in S.B. Cr. Revision

Petition No. 612/2015.

6. Learned counsel placed reliance on the following judgments:-

6.1 State of Rajasthan Vs. Ranjeet Singh 2010 (1) RLW 16

(Raj.) (Jaipur Bench) wherein the following observations were

made by the Court:-

"6. Fact situation emerging in the instant appeal may be summarized thus:

(i) Neither there is corroborative evidence with regard to initial demand of bribe of 360/- rupees nor there is any evidence to

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support that he finally agreed to accept only 200/- rupees as illegal gratification.

(ii) No other independent witness has also supported the demand of bribe money.

(iii) Registry has not been recovered from the possession of the accused.

(iv) The receipt available on record reveals that the registry was taken by the decoy on the same day, it was completed in the office.

(v) On the contrary, the registry has been recovered from the possession of the complainant.

(vi) The decoy or the complainant did not give the bribe amount of Rs. 200/- to the accused respondent.

(vii) Tainted currency notes of Rs. 200/- are found to have been recovered from the possession of the son of the accused.

(viii) The son of the accused is too small who does not understand the intricacies and the minute details of corruption.

(ix) The decoy is found to have given the bribe amount of Rs. 200/- to the son of the accused at his instance but this fact has not been corroborated by any other evidence.

(x) The decoy was required and expected to give the currency notes of Rs. 200/- to the accused only. He was not required to give tainted currency notes to the son of the accused as it could frustrate the whole purpose of entrapping him. The complainant has failed to ex-plain as to why the bribe money was given to the son of the accused. These factors cast doubt upon the credibility of the decoy and the conduct of the decoy creates suspicion about his bonafides.

7. Now, the most crucial question springing for consideration in the instant appeal is as to whether the demand and acceptance of bribe amount of Rs. 200/- by the accused from the complainant is proved beyond reasonable doubt?

8. It is a settled proposition of law that mere receipt of bribe amount by the accused-respondent from the complainant will not be sufficient to fasten guilt upon the accused under Section 7 of the Act 1988. 9. Evidence of trap witnesses must be tested in the same way as that of any other interested witness and in a proper case the Court may look for independent corroboration before convicting the accused

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person. Mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In the instant appeal undeniably and unquestionably, the bribe amount of Rs. 200/- is found to have been paid to the son of the accused who is only of the age of 8-10 years. Under no circumstance, the decoy was required to give this bribe money to the son of the accused, even at his own instance. It is also not proved that any work of the complainant was pending with the accused as the registry he had taken from him on the same day. Hence, there was no occasion to show any favour to the decoy.

10. In the light of this fact that the registry has been recovered from the possession of the complainant and the registry was found to have given on the same day it was completed by the office, the conduct of giving Rs. 200/- to the son of the accused casts doubt about his bonafides. It appears that on account of some unknown ulterior motive, the decoy wanted to falsely implicate him in this case of corruption. Conviction of the accused can be based only on unimpeachable testimony of the decoy and trustworthy statement of the independent witnesses. I do not find any acceptable and clinching evidence providing that there was a demand of bribe and that the accused respondent accepted the bribe amount of Rs. 200/- in question as a motive or reward for doing any official act or showing a favour to decoy in exercise of his official function.

(emphasis supplied)

11. In the ultimate analysis, it is held that the demand of bribe is very material in trap cases. Once the story of demand falls through, the authenticity of trap becomes highly doubtful because acceptance of bribe germinates through demand. Since in the instant case, the so called bribe money is found to have been recovered from the possession of the son of the accused, it cannot be inferred that the accused respondent obtained any bribe money from the decoy to show any favour to him. Thus the absence of motive on pat of accused either to demand or accept bribe renders the whole prosecution story doubtful. The prosecution has failed to prove against the

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accused respondent, both the demand and acceptance of bribe of Rs. 200/- from the complainant, beyond reasonable doubt. The learned trial Court has critically analysed and properly appreciated the evidence of the prosecution witnesses in detail. His impugned judgment is cogent and well merited, I do not find any infirmity therein. There is nothing on record which may lead me to deviate from the finding of the lower Court. I am in full unison with the finding of acquittal rendered by the learned trial Court and the impugned judgment, to my firm view, does not call for any intervention.

12. For these reasons, the State appeal being bereft of merits stands dismissed. Bail bonds of the accused respondent stand discharged.

6.2 Satpal Vs. State of Rajasthan S.B. Criminal Misc. Stay

Application No. 3018/2021 in S.B. Criminal Appeal No.

1324/2019 wherein the following was held:-

"2. It is contended by counsel for the appellant that an application for suspension of sentence was allowed by the Court on 19.08.2019. However, now on the basis of the conviction, State has passed the order dated 18.02.2021, dismissing the appellant from the service. It is also contended that the appellant married the complainant on 02.11.2006 and a child was born out of the wed-lock in the year 2008. The Court below has convicted the appellant for offence under Section 498-A I.P.C. as well as for offence under Section 376 I.P.C. It is argued that if the conviction is for offence under Section 498-A of I.P.C., conviction under Section 376 I.P.C. cannot be sustained and vice-versa.

9. The accused appellant in this case has served the Government for so many years. His sentence has been suspended by the Court. The consequences of not suspending the conviction order would have serious effect on his career. He has been dismissed from his service vide order dated 18.02.2021. 10. Considering the above, I deem it proper to stay the conviction order."

7. Learned Public Prosecutor submitted that the learned Court

below has rightly passed the impugned order after looking into the

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overall facts and circumstances of the case, and the evidences

placed on record before it.

8. Learned Public Prosecutor further submitted that the son of

the accused-appellant, being a minor, was discharged vide order

dated 22.07.2015 passed by this Hon'ble Court at Jaipur Bench in

S.B. Criminal Revision Petition No.612/2015, on the footing that

he has no knowledge of the bribe demanded by the accused-

appellant, nor did the evidence on record indicate that any

connivance with the accused-appellant, his father, to prove an

offence under Section 120B I.P.C.

9. Learned Public Prosecutor also submitted that the demand

from the accused-appellant has been proved and that the amount

was taken by the son of the accused-appellant, on behalf of the

accused-appellant, and therefore, recovery has also been proved.

And hence, the conviction is sustainable in the eye of the law.

10. Heard learned counsel for the parties and, perused the

record of the case and the judgments cited at the Bar.

11. This Court is conscious of the decisions rendered by the

Hon'ble Apex Court in P. Satyanarayana Murthy Vs. The Dist.

Inspector of Police and Ors. (2015) 10 SCC 152 and R.P.S.

Yadav Vs. Central Bureau of Investigation (2015) 11 SCC

642 whereby the Hon'ble Apex Court held that the demand,

acceptance and recovery of the illegal gratification / bribe amount

from the appellant must be proved to sustain a charge and

subsequently convict the accused for the offences under Sections

7 and 13 (1) (d) and 13 (2) of the Prevention of Corruption Act.

12. Furthermore, under Section 7 of the Act of 1988, a recovery

of an illegal gratification amount even from a third party at the

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instance of the accused, is sufficient ground to proceed against

the accused.

Relevant portion of Section 7 of the Act of 1988 reads as follows:-

"7. Offence relating to public servant being bribed. Explanation 2.--For the purpose of this section,--

(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."

13. This Court is cognizant of the decision rendered in Prashant

@ Bhanu Pandey Vs. State of Rajasthan S.B. Cr. Revision

Petition No. 612/2015 (Rajasthan High Court at Jaipur)

decided on 22.7.2015, wherein the Hon'ble Coordinate Bench of

this Court whereby the son of the accused appellant, Prashant @

Bhanu Pandey was acquitted from the offences under Section 13

(1) (D) / 13 (2) of the Prevention of Corruption of Act, 1988 (as it

then stood) and under Section 120-B I.P.C. but finds that the said

case stood at a different pedestal than that of the present

appellant. Furthermore, this Hon'ble Court, as recorded in the said

judgment, has in clear and cogent terms stated that the acquittal

of the son of the present appellant, Prashant @ Bhanu Pandey

shall not have any effect on the proceedings against the other

accused persons.

The relevant portion of the said judgment is reproduced below:-

"In view of above, acceptance of money, if any, was without knowledge of the petitioner for commission of offence under sections 13(1)(d), 13(2) of the Act of 1988 and section 120B IPC thus framing of charges for the above offence is without a prima facie case against the petitioner. The Juvenile Justice Board so as the appellate court failed to find out as to

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whether material exist to show connivance of the petitioner for commission of offence under the Act of 1988.

In view of aforesaid, criminal revision petition is accepted and the order dated 2.6.2014 and 18.4.2015 are quashed and set aside. The petitioner is discharged of the offence under sections 13(1)(d) and 13(2) of the Act of 1988 and section 120B IPC.

It is, however, made clear that discharge of the petitioner is for the reasons given above and would not have any effect on the proceedings against other accused persons."

14. This Court also finds that the learned court below has taken

into due consideration, amongst others, the DVR, transcripts,

wherefrom two CDs were duly prepared and got signed by the

concerned as also the fact that the bribe amount was kept in

Maalkhana; the officer who prepared the tapes testified that the

computer which was used for preparing the CDs was under the

control of the competent authority and was also working properly.

14.1 This Court, therefore, finds that the demand, acceptance and

recovery of the illegal gratification amount has been proved before

the learned Court below, and that the impugned order so passed

by it, has taken into consideration the overall facts and

circumstances of the case, and the evidences placed on record