Back
2012 Supreme(MP) 89
IN THE HIGH OF MADHYA PRADESH
A.K. Shrivastava and Smt. S.R. Waghmare, JJ.
Subhashchandra Joshi v. State of M.P.
Criminal Appeal No.994 of 2001 (Indore) : against the judgment and order of Special Judge, Dewas, passed in Special Case No.2 of 2000;
Decided on 7.2.2012.
M.K. Dave for appellant;
L.N. Soni, Public Prosecutor with D.N. Joshi for respondent/State.
Headnote:(1) Prevention of Corruption Act, 1988 -- Ss.7, 13(1)(d), 13(2) and 20 -- allegation of taking bribe -- initial burden to prove the motive and occasion on prosecution -- also evidence of accepting bribe essential -- thereafter, onus shifts on accused to give satisfactory explanation about his innocence -- entire defence taken by accused afterthought -- offence proved.
Held : Since the bribe money was recovered from the possession of the appellant, the ball is transferred to the Court of the appellant to give satisfactory explanation that how the bribe money has been received by him as envisaged under section 20 of the Act .... However, in the present case no cogent explanation has been given by the appellant. The defence which he has taken appears to be afterthought. The further defence which the appellant has taken is that on the date of trap he was suffering from loose motions and the tablet Pergolx was prescribed by Dr. Jagdish Chandra (DW1) to him and on that date, those tablets were lying openly in his pocket and he was coming in contact with these tablets frequently and in that tablet one of the component is phenolphthalein powder, and therefore, when the chemical test was performed on the fingers of his hands; positive result was found. At the first blush the defence appeared to be quite attractive and probable but on deeper scrutiny, the same is found to be devoid of any substance and afterthought for the simple reason that no such defence was never put to the complainant or to any of the prosecution witnesses including the panch witness during their cross-examination. Further, if we deeply scrutinize the medical prescription Ex.D-2 given by defence witness Dr. Jagdish Chandra (DW1) it is gathered that the said prescription is dated 19.7.1999 which is a day after the trap had taken place on 18.7.1999 and, therefore, certainly this defence is an afterthought. (2006)1 SCC 407 and (2007)7 SCC 625 followed.
(2) Evidence Act, 1872 -- Ss.133 and 114 -- Prevention of Corruption Act, 1988 -- Ss.17, 13(1)(d), 13(2) and 20 -- status of bribe giver is of an accomplice -- shall be a competent witness against accused -- conviction based on sole testimony of the accomplice not bad in law -- cannot be illegal merely because it proceeds upon the uncorroborated testimony of an accomplice -- however, corroboration of the testimony of an accomplice always fruitful. (1995)3 SCC 351 followed. [Para 23
(3) Prevention of Corruption Act, 1988 -- S.20 -- offence of bribe-taking -- initial burden of proving demand and acceptance of bribe proved beyond all reasonable doubts -- presumption of aforesaid offence shall be made. (2007)7 SCC 625 followed. [Para 25
¼1½ Hkz”Vkpkj fuokj.k vf/kfu;e] 1988 & /kkjk 7] 13¼1½¼?k½] 13¼2½ rFkk 20 & fj’or ysus dk vfHkdFku & gsrq rFkk volj lkfcr djus dk izkjafHkd Hkkj vfHk;kstu i{k ij & fj’or Lohdkj djus dk lk{; Hkh vko’;d & rRi’pkr~ viuh funksZf”krk ds ckjs esa larqf”Vijd Li”Vhdj.k nsus dk Hkkj vfHk;qDr ij pyk tkrk gS & vfHk;qDr )kjk yh xbZ laiw.kZ izfrj{kk vuqcks/k & vijk/k lkfcrA
vfHkfu/kkZfjr % D;ksafd fj’or dk /ku vihykFkhZ ds dCts ls cjken fd;k x;k] vf/kfu;e dh /kkjk 20 ds v/khu ;Fkk ifjdfYir bldk larqf”Vijd Li”Vhdj.k nsus ds fy, Hkkj vihykFkhZ ij pyk tkrk gS fd fj’or dk /ku mlds }kjk dSls izkIr fd;k x;kA rFkkfi] izLrqr ekeys esa] vihykFkhZ )kjk dksbZ lqfuf’pr Li”Vhdj.k ugha fn;k x;kA tks izfrj{kk mlus yh gS og vuqcks/k izrhr gksrk gSA tks vfrfjDr izfrj{kk vihykFkhZ us yh gS og gS fd ik’k ds fnukad mls nLr gks jgs Fks rFkk MkW0 txnh’k panz ¼iz lk 1½ )kjk mls isjkxkSYDl dh xksyh izfn”V dh xbZ Fkh rFkk ml fnukad dks os xksfy;k¡ mldh tsc esa [kqys :i esa iM+h gqbZ Fkha rFkk og ckj&ckj mu xksfy;ksa ds laidZ esa vk jgk Fkk rFkk ml xksyh esa ,d ?kVd fQukYFkSyhu dk pw.kZ Fkk rFkk blfy, tc mlds gkFkksa dh m¡xfy;ksa ij jklk;fud ijh{k.k fd;k x;k] ldkjkRed ifj.kke vk;kA izFke n`f”V esa izfrj{kk iw.kZ :i ls vkd”kZd rFkk laHkkO; izrhr gksrh gS ijarq xgu laoh{kk ij] ;g bl lk/kkj.k dkj.k ls fdlh lkjjfgr rFkk vuqcks/k ikbZ tkrh gS fd ;g izfrj{kk izfrijh{kk ds nkSjku u rks dHkh ifjoknh dks izLrqr dh xbZ rFkk u gh iap lk{kh lfgr fdlh vfHk;kstu lk{kh dks nh xbZA vkxs ;fn ge izfrj{kk lk{kh MkW0 txnh’k panz ¼iz lk 1½ )kjk fn, x, fpfdRlk uqL[ks dh xgu :i ls laoh{kk djrs gSa] ;g fu”d”kZ fudyrk gS fd mDr uqL[kk fnukad 19-7-1999 dk gS tks 18-7-1999 dks ik’k fcNk, tkus ds i’pkr~ dk fnu gS rFkk blfy,] fuf’pr :i ls ;g izfrj{kk vuqcks/k gSA ¼2006½1 ,l lh lh 407 rFkk ¼2007½7 ,l lh lh 625 vuqlfjrA
¼2½ lk{; vf/kfu;e] 1872 & /kkjk 133 rFkk 114 & Hkz”Vkpkj fuokj.k vf/kfu;e] 1988 & /kkjk 7] 13¼1½¼?k½] 13¼2½ rFkk 20 & fj’or nsus okys dh gSfl;r lg&vijk/kh dh & vfHk;qDr ds fo:) l{ke lk{kh gksxk & lg&vijk/kh ds ,dek= ifjlk{; ij vk/kfjr nks”kflf) fof/k dh n`f”V ls nks”kiw.kZ ugha & bl dkj.k ek= ls voS/k ugha gks ldrh fd ;g lg&vijk/kh ds vlaiq”V ifjlk{; ij vk/kkfjr gS & rFkkfi] lg&vijk/kh ds ifjlk{; dk laiq”V gksuk lnSo fgrdjA ¼1995½3 ,l lh lh 351 vuqlfjrA
¼iSjk 23½
¼3½ Hkz”Vkpkj fuokj.k vf/kfu;e] 1988 & /kkjk 20 & fj’or ysus dk vijk/k & fj’or dh ek¡x rFkk bldh Lohd`fr lkfcr djus dk izkjafHkd Hkkj lHkh ;qfDr;qDr lansgksa ds ijs lkfcr & iwoksZDr vijk/k dh mi/kkj.kk dh tk,xhA ¼2007½7 ,l lh lh 625 vuqlfjrA
¼iSjk 25½
Shrivastava, J. –
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 29.8.2001 passed by learned Special Judge Dewas in Special Case No.2/2000 convicting the appellant under sections 7, 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short the Act) and thereby sentencing him to suffer one year R.I. and fine Rs.2,000/-, in default, further R.I. of four months, 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 prosecution is that Vikramsingh (hereinafter referred to as the complainant) submitted a written complaint in the Lokayukta Office at Ujjain that appellant who at the relevant point of time was serving on the post of Head Constable in Police Station Pipalrawan District Dewas is making demand of bribe because a case has been registered in the said police station against the complainant and his three brothers namely Daulu, Mohan and Mansingh which is being investigated by appellant serving on the post of Head Constable. On 11.7.1999 appellant came in the village of the complainant and by informing about the case which has been registered against him and his brothers asked all the four accused persons including the complainant to come at police station and expenses of Rs.4,000/- would come and directed them to bring this amount. On this, complainant requested that appellant is asking an exorbitant amount and after bargaining the amount of expenses it was settled for Rs.1,500/- and it was directed by the appellant to come with this amount so that complainant and his brothers may be released on bail. Further, it was also warned and threat was given by the appellant that in case Rs.1,500/- is not paid, the complainant and his brothers would be sent to jail.
3. It is further case of prosecution that since complainant was not keen enough to give any bribe to the appellant and was desirous to caught him red handed, he submitted a written complaint in the office of the Special Police Establishment at Ujjain in which it was also mentioned that appellant is making demand of bribe of Rs.1,500/- to enlarge the complainant as well as his brothers on bail.
4. On receiving the said complaint, the Officers of the Lokayukta Office handed over a tape recorder to the complainant with a direction how to operate it and further gave direction that the conversation of bribe may be recorded in the cassette inserted in the tape recorder. Eventually, the complainant approached appellant and tape recorded the conversation which took place in between him and the appellant and it is said that in the said conversation because the demand of bribe was also made by the appellant it was recorded in the cassette.
5. A case was registered against the appellant in the office of the Special Police Establishment and a scheme of trap was prepared. The Officer of the Special Police Establishment summoned two Gazetted Officers and to whom the written complaint of the complainant was handed over and the Gazetted Officer read over the complaint to the complainant and after hearing the contents thereof the complainant accepted that he submitted such type of complaint. Thereafter on submitting 30 currency notes having denomination of Rs.50/- each by the complainant, the peon Mangilal of the Special Police Establishment applied Phenolphthalein powder on them and it was kept in the pocket of the complainant. The Officers of the Special Police Establishment explained the complainant that before handing over the bribe money to the appellant he should not come in contact with the treated currency notes and on making demand of bribe the treated currency notes be handed over to the appellant and after the transaction of bribe is taken place he will rub his hand on his head which would be a signal to the members of the trap party that the transaction of bribe had taken place.
6. It is further case of prosecution that members
