Full Judgment Text
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CASE NO.:
Appeal (crl.) 261 of 2004
PETITIONER:
State of Madhya Pradesh
RESPONDENT:
Shambhu Dayal Nagar
DATE OF JUDGMENT: 02/11/2006
BENCH:
S.B. SINHA & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
DALVEER BHANDARI, J.
This appeal has been filed by the State of Madhya
Pradesh against the judgment of the High Court of
Judicature of Madhya Pradesh, Jabalpur, Bench at
Gwalior, dated 30.1.2003 passed in Criminal Appeal No.2
of 1999.
The brief facts of this appeal, which are necessary to
dispose of this appeal, in a nutshell, are as follows.
The respondent Shambhu Dayal Nagar, who was
posted at the Police Station, Malanpur on the post of
Assistant Sub-Inspector was convicted under Sections 7
and 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988.
According to the version of the prosecution, on
9.8.1996 complainant Badan Singh’s sister-in-law
(Bhabhi) Bithola Devi, a resident of village Tukera was
beaten by Jagmohan, Mahavir etc. who belonged to the
same village. A report of the said incident was made by
Bithola Devi at the Police Station Malanpur. The
investigation of this matter was entrusted to the
respondent Shambhu Dayal, Assistant Sub-Inspector.
Consequently, he went to the village Tukera at the house
of complainant Badan Singh and told him that the
opposite party i.e. Mahavir etc. had filed a report against
them and in that connection, the rifle of the complainant
and Mouser Rifle of Ram Prakash, brother of the
complainant would be seized and both, the complainant
and his brother would also be arrested. The respondent
asked the complainant, Badan Singh, that in case
Rs.5000/- was paid to him, he would neither seize the
rifles nor arrest them and rather the opposite party’s
persons will be arrested and sent to jail immediately.
On 21.8.1996, Badan Singh, the complainant told
the respondent Shambhu Dayal that he would not be
able to arrange Rs.5000/- and he requested the
respondent to settle the amount at Rs.3500/-. The
respondent agreed to accept Rs.3500/- (bribe money) on
the condition that the said amount had to be arranged by
the same evening. The complainant was not ready to
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give the bribe to the respondent and wanted to get the
respondent nabbed. Therefore, on 21.8.1996, he went to
the office of Shri Pradeep Runwal, Superintendent of
Police, Office of the Public Commissioner, Gwalior with
cash of Rs.3500/- and submitted a written application
(Ex.P1) on the above-mentioned subject.
The Superintendent of Police directed his
subordinates to lay a trap for nabbing the respondent
while accepting the bribe. For this purpose, Aditya
Chobey, the then Manager, Industrial Development
Centre, Gwalior was called with a vehicle. On 21.8.1996,
after the arrival of the above-named panch witness
Aditya Chobey, PW6 and another Panch witness
Srikrishan Chauhan, PW3 at the Special Police Station
(Office of the Public Commissioner, Gwalior), the formal
application made by the complainant, Badan Singh, was
given to Aditya Chobey. The application was read over
to Badan Singh. On the said application, Aditya Chobey
gave his remarks and confirmed the contents and
submission of the application by the complainant and
appended his signatures. Thereafter, the complainant
gave 35 currency notes of the denomination of Rs.100/-
for giving them as a bribe to the respondent. The
numbers of all these currency notes were recorded.
Inspector Surender Rai Sharma, PW11, of the
abovementioned establishment got a thin layer of
phenolphthalein powder smeared on both sides of these
notes by Ram Roop Singh Ojha, Sub-Inspector. The head
constable searched Badan Singh, PW1 and Surender Rai
Sharma, PW11 and nothing was left in his pocket. The
currency notes, smeared with phenolphthalein powder,
were kept in the right side pocket of the pant worn by
Badan Singh and it was explained to him not to touch
these notes before giving to the respondent. Badan Singh
was given instructions not to shake hands with the
respondent before and after giving those currency notes
to him. The complainant after reaching Vijay Mishthan
Bhandar asked Srikrishan Chauhan PW3 to proceed and
request the respondent to come at the appointed place
i.e. at Vijay Mishthan Bhandar. The respondent
immediately came to the appointed place. As already
agreed, the complainant had given Rs.3500/- to the
respondent and the same were accepted by the
resondent. Srikrishan Chauhan PW3, panch witness,
was directed to accompany the complainant to witness
the proceedings of raid and hear the conversation
between the complainant and the respondent.
Thereafter, at the abovementioned office, the solution of
sodium carbonate was prepared in a clean glass through
constable Aparval Singh, which was colourless and the
fingers of both hands of Sub-Inspector Ram Roop Singh
were washed in the said solution. Thereafter, the colour
of the solution became pink. It was packed in a clean
small bottle as per rules and sealed and after marking
the bottle, signatures of the panchas were taken on it. It
was also explained to the complainant and the witnesses
that on receiving the currency notes smeared with
phenolphthalein powder, this powder would be on the
hands of the respondent and after washing his hands in
the colourless solution of sodium carbonate, the same
would change into a pink coloured solution as mentioned
above.
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In the said office, packets of two samples each of
the phenolphthalein and sodium carbonates were
prepared and these were kept in separate envelopes and
the same were marked and sealed. Besides Surender Rai
Sharma, Aditya Chobey, Manager, AKVN, Gwalior, DSP,
I.B. Srivastava, Dy. Superintendent of Police and Amar
Singh Bhadoriya, Kashi Ram Mijohnia, Inspector, Head
Constable Bhagwati Prasad Sharma, Veer Singh and
constables Aparval Singh and Srikrishan Chauhan were
a part of the trapping team. Ram Roop Ojha, who had
smeared the powder on the currency notes, was not
included in the trap team. All the members of the trap
team were made to wash their hands with clean water at
the office and the colour of solution did not change when
their hands were washed with sodium carbonate.
The preliminary panchnama (Ex.P2) dated
21.8.1996 was prepared by the Inspector Surender Rai
Sharma (PW11) in respect of all the abovementioned
proceedings at the office of the Public Commissioner,
Gwalior and it was signed by both the panch witnesses
Aditya Chobey and Sri Krishan Chauhan and the
complainant.
After the above proceedings, the trap team left for
Malanpur in the official vehicle. After reaching Vijay
Mishthan Bhandar near Malanpur Police Station, the
complainant Badan Singh and panch witness Sri Krishan
Chauhan were sent in the said shop. Aditya Chobey,
PW6 and other officers and officials of the trap team,
concealing their presence, took positions near the said
shop. Narender Singh Chauhan, nephew of the
complainant, was sent to the police station to call the
respondent to Vijay Mishthan Bhandar. At about 7 p.m.,
the respondent came to Vijay Mishthan Bhandar in his
uniform on a motor cycle and spoke to the complainant
while sitting inside Vijay Mishthan Bhandar and when
the respondent demanded the amount of bribe, the
complainant gave Rs.3500/- after taking out the same
from his pocket and the respondent kept the same in the
right pocket of his uniform’s shirt. On passing the pre-
decided signal by the complainant, Badan Singh, the
constable Aparval Singh and Bhagwati Prasad, who were
hiding there, entered Vijay Mishthan Bhandar and
caught the respondent by his right and left hands
respectively. The other members of the trap team and
panch witness Aditya Chobey also entered the said
Mishthan Bhandar within minutes and gave their
introduction to the respondent.
The fingers of the respondent were washed in the
solution of sodium carbonate at the spot, in the presence
of the panch witnesses, and the colour of solution
became pink. The solution was kept in a small bottle as
a sample for its chemical examination and this bottle was
sealed as per rules. Thereafter, the fingers of panch
witness Aditya Chobey were washed separately in the
solution of sodium carbonate, in a clean glass, but its
colour did not change. This solution was also packed in
a clean small bottle and sealed as per rules. The panch
witness Aditya Chobey took out the amount of bribe from
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the right side pocket of the shirt of uniform worn by the
respondent and their numbers were checked and found
to match with the numbers mentioned in the preliminary
panchnama. These notes were seized and its seizure
memo (Ex.P5) was prepared at the spot by the Inspector
Surender Rai Sharma. Thereafter, the shirt of the
uniform, which the respondent was wearing at that time,
was removed from his body and its right side pocket was
washed in the solution of sodium carbonate, after which
the solution became pink. This solution was packed in a
small bottle for examination and it was sealed as per
rules. The above-mentioned shirt of the respondent was
seized vide seizure memo (Ex.P4) by Surender Rai
Sharma and the notes recovered from the pocket of the
respondent were kept in an envelope through the panch
witness Aditya Chobey and the envelope was also sealed
as per rules. Thereafter, the fingers of Aditya Chobey
were made to be washed in the solution of sodium
carbonate and the colour of solution changed. This
solution was packed in a small bottle and sealed as per
rules. Signatures of the panch witnesses, complainant
and the respondent were taken on these bottles and the
signatures of panch witnesses and the respondent were
taken on the envelope containing currency notes of bribe,
seizure memos of the shirt and notes. The panchnama
(Ex.P3) was prepared at the spot by the Inspector
Surender Rai Sharma in respect of all the above-
mentioned proceedings. This panchnama was signed by
the panch witnesses and the complainant.
On 21.8.1996, The Investigating Officer, Surender
Rai Sharma, prepared the sketch map (Ex.P6) of the
place of occurrence i.e. Vijay Mishthan Bhandar at
Malanpur. On the same date, the Rajdoot Motor Cycle
No.MP 06 9315 of the respondent was seized vide seizure
memo (Ex.P7).
On 27.9.1996, carbon copy of the written report
given to the respondent by Maniram and Mahavir bearing
acknowledgement of receipt by the respondent was seized
vide seizure memo (Ex.P10) on its production by
Jagmohan. The FIR (Ex.P23) was lodged by Surender Rai
Sharma at Gwalior, which was later sent to the Police
Station Bhopal for the registration of the case, where a
Case No.69/96 was registered on 23.8.1996 vide report
Ex.P24. The small bottles related to the proceedings of
the said case and other seized items were sent to
Forensic Science Laboratory, Sagar for their examination.
The written permission (Ex.P16) duly signed by Shri N.K.
Barya, Additional Secretary of Legal Department of the
State of Madhya Pradesh regarding prosecution of the
respondent was received on 16.1.1997 and after the
formal investigation, the charge-sheet was filed before
this Court on 7.2.1997.
Charges under Sections 7 and 13(1)(d) read with
section 13(2) of the P.C. Act, 1988 [in the alternate,
under section 5(1)(d) read with section 5(2) of the P.C.
Act, 1947] were framed against the respondent. The
respondent did not plead guilty to the charges and stated
in his defence that he has been falsely implicated in this
case.
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In support of its case, the prosecution examined
twelve witnesses \026 PW1 Badan Singh, the complainant,
PW2 Bhagwati Prasad Sharma, PW3 Sri Krishan, PW4
Jagmohan, PW5 Ram Roop Singh, Sub Inspector, PW6
Aditya Chobey, Manager, District Industrial Development
Centre, Gwalior, PW7 Vijay Kumar Mudgal, Inspector,
PW8 K.N. Sharma, PW9 R.K. Gupta, PW10 Dalel Singh,
PW11 Surender Rai Sharma and PW12 Shiv Pratap
Singh, Inspector.
In his statement, the complainant, Badan Singh,
PW1 stated that the respondent had told him that there
was a complaint against him and consequently his rifle
and the rifle of his brother have to be seized. The
respondent told him that if he was paid Rs.5000/-, he
would neither seize the guns nor would he arrest them.
Badan Singh, PW1 stated that he touched the feet of the
respondent and mentioned to him that they are ready to
pay Rs.3500/-. There was a settlement at a figure of
Rs.3500/- on the condition that this amount had to be
delivered to the respondent at the Vijay Misthan Bhandar
on the same evening. Badan Singh, PW1 stated that he
had decided to get the respondent apprehended and
consequently went to the Superintendent of Police for
that purpose.
The complainant, Badan Singh, PW1 gave
Rs.3500/- in the office of Superintendent of Police. One
police officer applied powder on the currency notes and
Badan Singh, PW1 was asked not to touch the currency
notes. A trap was organized to nab the respondent. The
respondent came to Vijay Mishthan Bhandar on
motorcycle in the evening as decided on the appointed
place to collect his bribe money of Rs.3500/-. PW1 gave
Rs.3500/- to the respondent which he kept in the right
hand pocket of his shirt and immediately thereafter on
the complainant’s moving his head, the respondent was
caught by the members of the trap party while accepting
the bribe money. The vigilance people got a solution of
one powder prepared. Aditya Chaubey, PW6 took out
money from the right pocket of the respondent.
Thereafter, Aditya Chaubey had washed his hands in the
solution. The colour of the water turned pink.
Thereafter, that water was sealed in a bottle and the
signature of PW1 was obtained. The currency notes were
sealed in an envelope and PW1 had appended his
signature on them. The motorcycle of the respondent
was also seized. PW1 withstood the cross examination
and remained unshaken. Aditya Chaubey, who was
posted at the Industrial Development Centre, Gwalior
also fully supported the case of the prosecution. He also
withstood the lengthy cross-examination.
Surender Rai Sharma, PW11 who was posted in the
office of the Special Police Establishment also fully
supported the case of the prosecution.
Bhagwati Prasad Sharma, PW2 also supported the
prosecution version. Srikrishna, PW3, of course, did not
support the prosecution version. Jagmohan, PW4 also
supported the prosecution version. Other formal
witnesses also supported the basic case of the
prosecution. The Special Judge also considered the
entire evidence, documents and a number of judgments
of this Court and the High Courts and came to a definite
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conclusion that the prosecution has succeeded in
establishing its case and found the respondent guilty of
offence punishable under Section 7 and 13(1)(d) read
with Section 13(2) of the Prevention of Corruption Act,
1988 and sentenced the respondent with punishment of
one year rigorous imprisonment and a fine of Rs.500
under Section 13(1)(d) read with Section 13(2) of the said
Act. Under Section 7 of the Prevention of Corruption Act
also the respondent was sentenced to one year rigorous
imprisonment. The Court directed both the sentences to
run concurrently and in case of non-payment of fine, the
respondent was directed to further undergo
imprisonment of two months.
The respondent aggrieved by the said judgment of
the Special Judge preferred an appeal before the High
Court of Judicature at Madhya Pradesh, Jabalpur at
Gwalior Bench.
The High Court again re-evaluated the evidence and
set-aside the judgment of the Special Court on the
following grounds:
(1) That the Special Court wrongly placed
reliance on the testimony of Badan Singh,
PW1. The High Court discarded his
testimony on the ground that the upper
right pocket of the shirt is not the normal
place for keeping the currency notes;
(2) The High Court discarded the prosecution
version because according to the High
Court the upper right pocket of the shirt
cannot contain 35 currency notes of
denomination of Rs.100/- unless they
are folded;
(3) The High Court also discarded the
testimony of Badan Singh, PW1 on the
ground that perhaps he had forced his
currency notes in the pocket of the
respondent; and
(4) The High Court also found substance in
the argument that the traces of
phenolphthalein powder can come in the
hands of resisting respondent.
The High Court allowed the appeal filed by the
respondent and set-aside the judgment of the Special
Court. The State of Madhya Pradesh being aggrieved by
the said judgment has filed this appeal on the ground
that the High Court was clearly in error in setting aside
the well reasoned judgment of the trial court on totally
erroneous and untenable findings.
According to the appellant - State of Madhya
Pradesh, the finding of the High Court that \026
(A) Badan Singh, PW1 had forced his currency notes in
the pocket of the respondent is wholly untenable;
(B) The currency notes of Rs.3500/- were recovered in
the presence of Badan Singh PW1. The version has
been fully supported by the two independent
witnesses;
(C) Badan Singh PW1 had fully supported the
prosecution version. Independent witnesses Aditya
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Chobey, PW6 and Surender Rai Sharma, PW11 also
supported prosecution story. The High Court
seriously erred in rejecting the prosecution version;
and
(D) The High Court erroneously rejected the prosecution
version on the ground that the bribe amount is not
kept in the upper pocket of the shirt.
The State of Madya Pradesh filed special leave
petition against the impugned judgment.
The respondent in pursuance to the show-cause
notice of this Court filed a detailed counter affidavit
stating that the High Court has carefully re-appreciated
and re-evaluated the evidence of the prosecution and
conclusion arrived at by the High Court is based on
correct appraisal of the evidence on record, therefore, no
interference is called for by this Court as the appeal does
not raise any substantial question of law for
consideration of this Court in its extra-ordinary
jurisdiction under Article 136 of the Constitution.
The respondent also mentioned that Badan Singh
PW1, the complainant supported the story of
prosecution. His version ought not to have been believed
by this Court because he had harboured some grudge
against the respondent, particularly when his own cousin
Sri Krishna PW3 did not support the prosecution version.
At no stage, the respondent had alleged mala fides
against the appellant. We find no merit in this argument
of the respondent.
According to the respondent, the prosecution
version does not inspire any confidence because
according to the prosecution story, the bribe amount was
recovered from the upper pocket of the shirt. Usually,
bribe money is not kept in the upper pocket. This
argument of the respondent is also wholly untenable.
It was urged by the respondent that the entire story
of the prosecution is fabricated and no reliance should be
placed on it by the Court. The learned counsel appearing
for the respondent submitted that a lenient view may be
taken because sending the respondent to jail after ten
years would lead to tremendous hardship.
We have carefully considered the rival contentions.
The fact of recovery of Rs.3500/- from the respondent
has been fully corroborated by Badan Singh, PW1 and
also by two independent witnesses, Aditya Chobey PW6
and Surender Rai Sharma PW11.
We do not find any merit in the submission that
Badan Singh PW1 because of previous enemity had
falsely implicated the respondent in the instant case.
The resondent had placed no material to substantiate
this argument.
We also do not find any merit in the statement that
the guns were not seized. According to the prosecution
version, when the respondent demanded and accepted
the bribe of Rs.3500/-, there was no question of seizing
the guns.
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On careful examination of the prosecution evidence
and the documents on record, we too come to the definite
conclusion that the respondent is clearly guilty of the
offence and the Special Judge was fully justified in
convicting the respondent under Sections 7 and 13(1)(d)
read with Section 13(2) of the Prevention of Corruption
Act, 1988. The High Court erroneously set aside the well
reasoned judgment of the Special Judge.
In view of the evidence and documents on record, it
is difficult to uphold the impugned judgment and
consequently, the impugned judgment of the High Court
is set aside and the judgment of the Special Judge is
restored.
It is difficult to accept the prayer of the respondent
that a lenient view be taken in this case. The corruption
by public servants has become a gigantic problem. It has
spread everywhere. No facet of public activity has been
left unaffected by the stink of corruption. It has deep and
pervasive impact on the functioning of the entire country.
Large scale corruption retards the national building
activities and everyone has to suffer on that count. As
has been aptly observed in Swatantar Singh v. State of
Haryana reported in (1997) 4 SCC 14, corruption is
corroding like cancerous lymph nodes, the vital veins of
the body politics, social fabric of efficiency in the public
service and demoralizing the honest officers. The
efficiency in public service would improve only when the
public servant devotes his sincere attention and does the
duty diligently, truthfully, honestly and devotes himself
assiduously to the performance of the duties of his post.
The reputation of corrupt would gather thick and
unchaseably clouds around the conduct of the officer and
gain notoriety much faster than the smoke.
This Court in Hazari Lal v. State (Delhi
Administration) reported in (1980) 2 SCC 390, observed
that where the recovery of money coupled with other
circumstances lead to the conclusion that the respondent
received gratification from some person, the Court would
certainly draw a presumption under Section 4(1) of the
Prevention of Corruption Act. In the instant case, the
recovery of 35 notes of the denomination of 100 is fully
proved by Badan Singh PW1 and two other independent
witnesses Aditya Chobey PW6 and Surender Rai Sharma
PW11.
On consideration of the totality of the
circumstances of this case, the prosecution has been able
to establish on the basis of evidence on record that the
respondent had received bribe and, therefore, he is guilty
of the offence under Sections 7 and 13(1)(d) read with
Section 13(2) of the Prevention of Corruption Act, 1988.
The respondent was convicted by the Special Judge
on the basis of overwhelming evidence on record. The
High Court without appreciating the facts of this case in
proper perspective set-aside the judgment of the Special
Court. The reasoning given by the High Court for setting
aside the judgment cannot stand the test of scrutiny for a
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moment and in this view of the matter. Consequently,
the judgment and sentence awarded by the Special Court
is restored. The appeal filed by the State of Madhya
Pradesh deserves to be allowed. It is directed
accordingly.