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2007 Supreme(MP) 1039
2008(1) JLJ 283
A.K. Shrivastava, J.
Rajrajeshwari Nandan Gupta v. Special Police Establishment,
Lokayukt, Gwalior
Criminal Appeal No.431 of 2001 (Gwalior) : against the
judgment of Special Judge, Gwalior, issued in Special Case No.4 of 1993;
Decided on 23.10.2007.
Sanjay Gupta, for appellant;
C.S. Dixit, Public Prosecutor, for respondent.
Headnote:Prevention of Corruption Act, 1988 -- Ss.7 r/w 13(1)(d) and 13(2) -- no occasion to demand bribe -- reason made out to falsely implicate d`recovery of chemically tested currency notes cannot prove the offence.
As per the case of the prosecution, the appellant, who at the relevant point of time, was serving on the post of Assistant Sales Tax Officer and was a public servant, made a demand of Rs.1 ,500/ and insisted complainant Kailash Chandra Agrawal that in case the same amount is paid by him, he would not be liable to pay a sum of Rs.6,500/- towards sales-tax and the tax liability will be reduced up to the extent of Rs.800/- only. It is further the case of the prosecution that the appellant insisted the complainant to bring the said bribe amount of Rs.1,500/- on 11.7.1990. [Para 3
Held : When the complainant has already admitted in paras 14 and 15 of his testimony that the order of assessment making him liable to pay sales-tax of Rs.6,420/- was already passed on 15.3 .1990 as well as the recovery order was also issued thereafter on 19.6.1990, according to me there was no occasion for the appellant to make any demand of bribe from the complainant on 11.7.1990 because at that time, the ball had already gone from the Court of appellant. [Para 11
The defence of the appellant is also corroborated by the evidence of complainant Kailash Chandra Agrawal (PWl), para 15, where he has clearly admitted that after passing the order of assessment on 15.3.1990 the appellant also issued notice of demand and therefore this probability cannot be ruled out that the appellant has been falsely implicated as he also issued demand notice against the complainant to deposit the amount of tax. [Para 12
The currency notes were chemically tested and the currency notes were recovered from the accused but merely receipt of currency notes from the accused would not be sufficient to fasten guilt .... In the present case, the cash amount of Rs.l,500/- was found in a bag and there is no clinching evidence that the said bag which was lying in the chamber of appellant was of his own. Even if it is held that the cash amount is recovered from the appellant, it would not be sufficient to hold that appellant is guilty of the offence. (2005)6 SCC 211 and (2006) 1 SCC 401 followed. [Para 15
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1. Feeling aggrieved by the judgment of conviction and order of sentence dated 31.7.2001, passed by the learned First Additional Sessions Judge/Special Judge, Gwalior in Special Case No.411993, convicting the appellant under section 7 read with section 13(1)(d)/13(2) of the Prevention of Corruption Act. 1988 (in short for brevity "the Act") and sentencing him to suffer RI of one year and fine of Rs.1,000/- and in default, further RI of six months on each count, the appellant has knocked the doors of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973.
2. In brief, the case of the prosecution is that complainant Kailash Chandra Agrawal (PW1) owns a trading shop in the name and style "Agrawal Textiles". This shop continued till year 1984-85 and the same was closed in the year 1987.
3. As per the case of the prosecution, the appellant, who at the relevant point of time, was serving on the post of Assistant Sales Tax Officer and was a public servant, made a demand of Rs.l,500/- and insisted complainant Kailash Chandra Agrawal that in case the same amount is paid by him, he would not be liable to pay a sum of Rs.6,500/- towards sales-tax and the tax liability will be reduced up to the extent of Rs.800/only. It is further the case of the prosecution that the appellant insisted the complainant to bring the said bribe amount of Rs.l,500/- on 11.7.1990. Since the complainant was not ready to pay the said illegal amount to the appellant, he made a complaint in writing to the Special Police Establishment Lokayukt, Gwalior on 11.7.1990. Thereafter, the Superintendent of Police (Special Police Establishment) wrote a letter to the Commissioner of Excise Department to make a Gazetted officer available in order to take further steps for organizing a trap. Eventually, one Shripal Singh Chandel (PW8), Gazetted officer of the Excise Department was made available in order to assist them. According to the prosecution, complainant Kailash Chandra Agrawal (PW1) handed over 15 currency notes of Rs.100/- each to Deputy Superintendent of Police B.N. Bhaditya (PW9) on which constable Bijendra Singh applied phenolphtalein powder and these currency notes covered by the said powder, were kept in the pocket of "pajama" of complainant and he was directed that the said currency notes be handed over to the appellant. One Ashok Kumar Agrawal (brother-in-law of the complainant Kailash Chandra Agrawal) was made a Panch witness.
4. It is further the case of the prosecution that the trap party went to the office of Sales-tax on 11.7.1990 where the appellant was serving on the post of Assistant Sales Tax Officer. Complainant Kailash Chandra Agrawal was sent alongwith Ashok Kumar Agrawal at 4:45 p.m. and thereafter, Panch witness and the complainant came out from the chamber of the appellant and gave a signal immediately thereafter trap party rushed inside the chamber of the appellant and as they were informed that the money has been kept in a hand bag, the appellant was caught and his hands were washed in the solution of sodium carbonate which became pink. The currency notes were seized from his bag. The trap party thereafter prepared necessary panchnama and arrested the accused.
5. After completion of the investigation, a charge-sheet was filed. The learned trial Judge on the basis of the allegations made against the appellant in the charge-sheet, framed charges punishable under section 7 read with section 13(1)(d)/13(2) of the Act. Needless to emphasis, the appellant abjured his guilt and pleaded complete innocence.
6. The prosecution thereafter examined as many as nine witnesses and placed EX.P-l to Ex.P-22, the documents on record. The defence of the appellant is that an ex parte assessent order was passed against the complainant by him on 15.3.1990 imposing the sales-tax of Rs.6,420/- on the complainant and on the date of incident, i.e., 11.7.1990 there was no occasion to him to make any illegal demand from the c
