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2024 Supreme(MP) 393
IN THE HIGH COURT OF MADHYA PRADESH
Subodh Abhyankar, J.
Sudeep v. The State of Madhya Pradesh
Criminal Appeal No. 1013 of 2016 (Indore): against the judgement dated 21.7.2016 passed by the Special Judge, Ratlam in Sessions Trial No. 5/2014; Decided on 8.7.2024
Vivek Singh for appellant;
Vaibhav Jain for respondent/State.
Headnote:
(1) Criminal P. C., 1973 -- S. 386 -- scope of power -- appeal by accused -- no cross-appeal by State -- appellate Court can still convict appellant by altering finding recorded by trial Court -- respondent State not required to file separate appeal to challenge finding recorded by trial Court -- State can challenge said finding in appeal preferred by accused. (1990) 2 SCC 675 followed. [Para 24]
(2) Evidence Act, 1872 -- S. 65B(2) -- secondary electronic evidence -- certificate reveals that CD is prepared from a Government tape recorder through a computer -- not stated if computer belonged to Lokayukt department or not -- conditions enumerated u/s. 65B(2) also not complied with -- Although CD was played in Court and complainant affirmed that voices are of him and appellant, but this evidence is of no avail because CD has not been proved in accordance with law -- in such circumstances, it was incumbent upon prosecution to produce original voice recorder in Court -- finding recorded by trial Court that transcript and CD are not admissible in evidence affirmed. Civil Appeal No. 4226 of 2012 followed. [Para 24]
(3) Prevention of Corruption Act, 1988 -- S. 20 -- appellant trapped red-handed along with bribe money -- though electronic evidence is excluded from consideration as not proved, presumption u/s. 20 is still required to be discharged by appellant. [Para 29]
(4) Prevention of Corruption Act, 1988 -- Ss. 7 and 13(2) -- allegation that appellant was demanding bribe for excluding complainant’s land from government land -- complainant admitted that when he met appellant on date of trap, he shook hands with him and as appellant started to leave, he put money in his jacket’s pocket -- story of complainant corroborated by stand of appellant -- defence of appellant that sodium carbonate powder transferred from hands of complainant to hand of appellant without transfer of money through hands, not far-fetched -- prosecution also not able to prove that complainant had any land in his own name or jointly with his family members -- there appears to be no occasion for appellant to demand bribe to exclude the same from government land -- demand not proved beyond reasonable doubt -- it would be unsafe to convict appellant in absence of corroborative evidence relating to demand and acceptance of bribe. 2008 (2) JLJ 386, (2023) 4 SCC 731 and Criminal Appeal No. 280 of 2004 decided on 6.5.2024 referred to. [Paras 36, 39 & 41]
¼1½ naM çfØ;k lafgrk] 1973 & /kkjk 386 & 'kfä dh O;kfIr & vfHk;qä dh vihy & jkT; }kjk çfrZvihy ugha & fopkj.k U;k;ky; }kjk vfHkfyf[kr fu"d"kZ dks ifjofrZr dj vihy U;k;ky; vihykFkhZ dks fQj Hkh fl)nks"k Bgjk ldrk gS & fopkj.k U;k;ky; }kjk vfHkfyf[kr fu"d"kZ ij vk{ksi djus ds fy, çR;FkhZ jkT; }kjk i`Fkd~ vihy çLrqr dh tkuk visf{kr ugha & jkT; mä fu"d"kZ dks vfHk;qä }kjk çLrqr vihy esa vk{ksfir dj ldrk gSA ¼1990½ 2 ,llhlh 675 vuqlfjrA ¼iSjk 24½
¼2½ lk{; vf/kfu;e] 1872 & /kkjk 65ch¼2½ & f}rh;d bysDVª‚fud lk{; & çek.ki= ls çdV fd lhMh daI;wVj ds ek/;e ls ljdkjh Vsi fjd‚MZj ls rS;kj dh xbZ & crk;k ugha x;k fd daI;wVj yksdk;qä foHkkx dk Fkk ;k ugha & /kkjk 65ch¼2½ ds v/khu ifjxf.kr 'krksZ dk Hkh vuqikyu ugha & ;|fi lhMh U;k;ky; esa pykbZ xbZ rFkk f'kdk;rdrkZ us vfHkiq"V fd;k fd ok.kh mldh vkSj vihykFkhZ dh gS- rFkkfi ;g lk{; O;FkZ gS D;ksafd lhMh dks fof/k ds vuqlkj lkfcr ugha fd;k x;k & ,slh ifjfLFkfr;ksa esa- vfHk;kstui{k U;k;ky; esa ewy Vsi fjd‚MZj is'k djus dks ck/; Fkk & fopkj.k U;k;ky; }kjk vfHkfyf[kr fu"d"kZ vfHkiq"V fd vuqfyfi vkSj lhMh lk{; esa xzkg~; ughaA flfoy vihy Øekad 4226 lu~ 2012 vuqlfjrA ¼iSjk 28½
¼3½ Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 & /kkjk 20 & vihykFkhZ fj'or ds /ku ds lkFk jaxs&gkFk idM+k x;k & ;|fi lkfcr ugha gksus ds dkj.k bysDVª‚fud lk{; ij fopkj ugha fd;k tk ldrk] rFkkfi vihykFkhZ }kjk /kkjk 20 ds v/khu mièkkj.kk dk mUekspu fQj Hkh vko';d gSA ¼iSjk 29½
¼4½ Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 & /kkjk 7 rFkk 13¼2½ & vfHkdFku fd f'kdk;rdrkZ dh Hkwfe dks ljdkjh Hkwfe ls ckgj j[kus ds fy, vihykFkhZ fj'or e‚ax jgk Fkk & f'kdk;rdrkZ us Lohdkj fd;k fd tky fcNk, tkus ds fnukad dks tc mlus vihykFkhZ ls HksaV dh rc mlus vihykFkhZ ls gkFk feyk;k vkSj vihykFkhZ tkus yxk rc mlus vihykFkhZ ds tSdsV dh tsc esa /ku Mky fn;k & f'kdk;rdrkZ dh dgkuh vihykFkhZ ds i{kk/kkj ls laiq"V & vihykFkhZ dh ;g çfrj{kk vLokHkkfod ugha fd gkFkksa ls /ku ds varj.k ds fcuk gh f'kdk;rdrkZ ds gkFkksa ls lksfM;e dkcksZusV pw.kZ vihykFkhZ ds gkFk esa varfjr gqvk & vfHk;kstui{k ;g Hkh lkfcr ugha dj ldk fd f'kdk;rdrkZ ds Lo;a ds uke ij ;k mlds dqVqac ds lnL;ksa ds lkFk la;qär% dksbZ Hkwfe Fkh & mls ljdkjh Hkwfe ls i`Fkd~ j[kus ds fy, vihykFkhZ }kjk fj'or e‚xs tkus dk dksbZ dkj.k çrhr ugha gksrk & e‚ax ;qfä;qä lansg ls ijs lkfcr ugha & fj'or dh ek¡x vkSj Loh—fr ls lacaf/kr laiks"kd lk{; ds vHkko esa vihykFkhZ dks fl)nks"k Bgjkuk ladViw.kZ gksxkA 2008 ¼2½ ts,yts 386] ¼2023½ 4 ,llhlh 731 rFkk nkafMd vihy Øekad 280 lu~ 2004 fu.khZr fnukad 6-5-2024 fufnZ"VA ¼iSjk 36] 39 ,oa 41½
ORDER
1. Heard finally, with the consent of the parties.
2. This criminal appeal has been filed under section 374 of Cr.P.C. against the judgement dated 21.7.2016, passed in ST No.5/2014 by Special Judge Ratlam (MP); whereby, finding the appellant guilty, the learned Judge of the trial Court has convicted the appellant for offence under sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter to be referred to as “Act of 1988”) and sentenced him under section 7 of Act of 1988 for one year R.I. with fine of Rs.10,000/-, under section 13(2) of Act of 1988 for 1 year R.I. with fine of Rs.10,000/- with default clause to undergo 3 months additional R.I. (2 counts).
3. In brief case of the prosecution is that against the appellant Sudeep Sharma, who was posted as Patwari Halka no.35 was given the charge of Patwari Halka No.32-A village Hartali, a complaint (Ex-P-9) was filed in the office of Special Police Establishment Lokayukta, District Ujjain, by the complainant Bagdiram (PW-2) on 18.12.2013, in which it was stated that he is a resident of Gram Mathuri wherein he and his brothers have an ancestral land, whereas Patwari Sudeep Sharma has informed him that it is a revenue land in which certain pattas have to be distributed, and if he wants that his land should not be declared as revenue land, then he has to give him Rs.5000/- and since he (complainant-Bagdiram) did not want to pay bribe to the appellant, and wanted to trap him red-handed, the complaint is being filed. On such complaint, the complainant-Bagdiram was given a digital voice recorder, vide Panchanama (Ex.P-10), and he was apprised that he has to take the voice recorder to appellant Sudeep Sharma, Patwari and record the conversation between them regarding demand of bribe. Along with the complainant, constable Rakesh Bihari (PW-5) was also sent, and according to the case of prosecution, on 18.12.2013, the complainant Bagdiram again appeared in the office at around 7.00 p.m., and again submitted another application (Ex-P-12) to submit the voice recorder wherein he stated that he has recorded the conversation with the appellant secretly. The voice recorder was kept secured and Panchnama (Ex/ P-11) was prepared and the matter was informed to the Superintendent of Police, who summoned two gazetted officers from Collectorate Office, Ujjain and thus, on 19.12.2013 when the complainant again appeared in the office of the Lokayukt he was apprised of all the procedural formalities and was introduced to the witnesses, at that time Inspector Basant Shrivastava (PW-6) took out the digital voice recorder in which conversation between the complainant and the appellant on 18.12.2013 was recorded, and the complainant Bagdiram identified his own voice as also the voice of the appellant and with the help of the complainant and on the dictation of Basant Shrivastava, Assistant Grade II Ashok Khatri typed the conversation vide (Ex-P-13) and Inspector Basant Shrivastava (PW-6) also gave a certificate Ex-P-22 under section 65(B) of the Evidence Act 1872 as the three CDs which were prepared in presence of the witnesses which were also played before them were kept in three different envelopes. Subsequently, the complainant was also asked to produce the currency notes which were to be given to the appellant, and thus the complainant, produced 10 notes of Rs.500/- denomination and after completing all the procedural formalities, a trap team was formed vide Trap Panchnama (Ex-P-14).
4. It is further case of the prosecution, that on 19.12.2013, at around 14.30 in the noon, the trap team started from the office of Lokayukt at Ujjain and reached at around 17.00 hours at Ratlam, near Kalika Mandir from where the complainant Bagdiram walked to the nearby hotel followed by the witnesses Vishal Reshamiya (PW-7) and Rakesh Bihari (PW-5). The complainant stood behind the Collector office’s back gate where the amount was handed over by the complainant to the appellant, and at that time the
