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PETITIONER: SONELAL TIWARI

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       15/01/1998

BENCH: M.K. MUKHERJEE, S.P.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Thomas, J.      On the death of the sole appellant normally this appeal would have  got abated.  But appellant’s  widow Smt. Krishna Bai applied  for  resuscitation  of  the  appeal  presumably because she  not inclined to bear the stigma fastened on her late husband  with the finding of the High Court that he was guilty of  corruption charge.  Hence, she availed herself of the remedy  envisaged in  the proviso  to Section 394 (2) of the Code  of Criminal  Procedure and  applied for  leave  to continue the  appeal Leave  was granted  after condoning the delay involved in making the aforesaid application.      Appellant was  accused in  a case  tried by  a  Special Judge for  the offence under Section 5 (2) of the Prevention of Judge  for corruption  Act 1947.  He was acquitted of the said charge by the trial court but was convicted by the High Court on  an appeal  filed by  the State  in reversal of the finding of  the trial  Court. He  was sentenced  to rigorous imprisonment for  three months  and a  fine of Rs. 500/-. He preferred the present appeal by special leave.      Appellant was  a Revenue Inspector. The nub of the case against him  was that he wangled a bribe of Rs.50/- from one Sewa Ram (PW1) for performing an official act, but appellant was caught red-handed in a trap laid by the police.      More details of the case are these: PW1 - Sewa Ram  got a sale  - deed in respect of 50 acres of land. He approached the appellant  for certification  of the  said sale-deed for facilitating mutation  proceedings. Appellant demanded a sum of Rs.  100/- as  remuneration for  doing the  said official act. After  some haggling  the amount was settled at Rs.50/- PW3 (Ishwari  Prasad Shukla)  and PW 4 - Jagdish Prasad (who was the  local Patwari  ) were  also present when the amount was settled at Rs.50/-. PW1 was to pay the money, first went to the  Vigilance Office  and lodged  a  written  a  written complaint (Ex.  P1) with PW10 - Jagdev Ram Bharkuria (Deputy Superintendent of  Police -  Vigilance Wing ). He prepared a trap for  catching  the  appellant  when  bribery  would  be collected in  hand. On 1.12.1979, PW1 handed over the marked currency notes  to the appellant and the latter kept them on the table  beneath his  bag. Abruptly, the Vigilance Officer

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dashed in  and caught  him red-handed.  Phenolphthalein test was conducted  on the  fingers of the appellant which showed showed positive result.      Appellant was  accused in  a case  tried by  a  Special Judge for  the offence under Section 5 (2) of the Prevention of Corruption  Act 1947. He was acquitted of the said charge by the trial court but was convicted by the High Court on an appeal filed  by the State in reversal of the finding of the trial Court.  He was  sentenced to rigorous imprisonment for three months and a fine of Rs.500/. He preferred the present appeal by special leave.      Appellant was  a Revenue Inspector. The nub of the case against him  was that he wangled a bride of Rs.50/- from one Sewa Ram (PW1) for performing an official act, but appellant was caught red-handed in a trap laid by the police.      More details of the case are these PW1 - Sewa Ram got a sale-deed in  respect of 50 acres of land. He approached the appellant  for  certification  of  the  said  sale-deed  for facilitating mutation  proceedings. Appellant demanded a sum of Rs.100/- as remuneration for doing the said official act. After some  haggling the  amount was  settled at Rs.50/- PW3 (Ishwari Prasad  Shukla) and  PW4 -  Jagdish Prasad (who was the local  Patwari) were  also present  went the  amount was settled at  Rs.50/-. PW1  was to  pay the amount on the next day. buy. but he, instead of going to the appellant with the money the  money, fist  went to  the  Vigilance  Office  and lodged a  written complaint  (Ex. P1) with PW10 - Jagdev Ram Bharkuria  (Deputy  Superintendent  of  Police  -  Vigilance Wing). He  prepared a  trap for  catching the appellant when bribery would be collected in hand. On 1.12.1979, PW1 handed over the  marked currency  notes to  the appellant  and  the latter kept them on the table beneath his bag. Abruptly, the Vigilance Officer  dashed  in  and  caught  him  red-handed. Phenolphthalein test  was conducted  on the  fingers of  the appellant which showed positive result.      Appellant, in  his defence  during trial, denied having made the  demand or  received the amount and he alleged that PW-4 Jagdish  Prasad Shukla  was entertaining grouse towards him as  he was  superseded by  the appellant  in the Revenue Service in  which both  were  serving,  and  he  was  behind foisting this false case against him .      Learned Special  Judge, in  his judgment,  pointed  out certain discrepancies  as between the evidence of PW-1, PW-3 and PW-4  and declined  to believe  the case  that appellant received the  bribe money.  The High Court, however, did not give much  weight to  those discrepancies as, they according to it,  had no  material bearing  on the hub of the case and observed that  the only  possible conclusion  which could be reached from the evidence is that appellant had received the bribed amount from PW-1. Accordingly the High Court reversed the acquittal and convicted the appellant.      Appellant did not despite the following facts: (1) That PW-1 was  in need  of getting  his sale  deed certified  for effecting  mutation   proceedings.  (2)  That  appellant  as Revenue Inspector  during the relevant time was to officiate the said certification proceedings. (3) That PW - 1 Sewa Ram lodged a  notes were marked by PW-10 Dy. S.P. in advance and the  same  notes  were  collected  from  the  table  of  the Appellant  on   1-12-1979.  (4)  When  the  fingers  of  the appellant   were    examined   by    PW-12   by   conducting phenolphthalein test the result was positive.      In view  of the  above broad  features in  evidence the disputed area has narrowed down to a very limited readies as to whether  appellant did  receive the  amount with  his own hands. Two  circumstances are  strongly  suggestive  of  the

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truth of  the prosecution version. First is that the tainted currency notes  were found  kept  beneath  the  bag  of  the appellant  Second  is  that  appellant’s  fingers  contained phenolphthalein powder.      On the  first aspect,  it is difficult to conceive that somebody else  would have  placed  appellant’s  bag  on  the marked currency  notes remaining on the office table kept in front of  appellant. If  somebody else  had done  it without appellant’s consent  we no  doubt that, appellant would have resisted even  the appellant  had no case, at any time, that he made  any such  resistance  or  that  somebody  else  had snatched his bag for placing it on the currency notes.      On the second aspect, learned counsel for the appellant invited our attention to the evidence of PW-4 Jagdish Prasad Shukla that  appellant was  askant to the Dy. S.P.to take up the currency  notes from  the table  to be delivered over to the police.  On the  strength  of  that  piece  of  evidence learned counsel  contended that  presence of phenolphthalein powder on  the fingers  of the  appellant is  of no  crucial impact on  the capability of the appellant. But that part of the evidence  of  PW-4  Jagdish  Prasad  Shukla  is  not  in consonance with  the testimony  of PW-10  Dy. S.P. In Cross- examination PW-10  Dy. S.P.  was asked whether he wanted the appellant to that question was in the negative. We have good reasons to  prefer the  version  of  PW-10  Dy.S.P.  to  the evidence of PW-4 on the aforesaid aspect.      We remember that it was PW-10 Dy. S.P. himself who made advance   preparations   for   conducting   for   conducting phenolphthalein  test.   For  what  purpose  he  would  have conducted the test on the fingers of the appellants? We have pointed out  in a  similar case (State of U.P. vs. Zakaullah JT 1997  SC 54)  that "such  a test  was conducted  for  his conscientious satisfaction  that he was proceeding against a real bribe  taker and  that an officer with integrity is not harassed unnecessarily."  The situation  in the case, so far as the Dy. S.P. (PW-10) is concerned is no different. If the object of  PW-10 Dy.  S.P. was  to  know  for  himself  that appellant had really received money with his own hands it is unresumptuous  that  PW-10  Dy.S.P.  would  have  asked  the appellant had really received money with his own hands it is unresumptuous  that  PW-10  Dy.S.P.  would  have  asked  the appellant to  lift up  the amount with his hands which would have  obliterated   the  very   object  for  which  he  made preparations to  conduct the  phenolphthalein test. Hence we are more  inclined to  prefer the version of PW -10 Dy. S.P. that he  did not  cause the  appellant to  that he  did  not hands.      According to  us the High Court has come to the correct conclusion on the evidence in the case and that interference with the trial court finding was justifiably made. Appellant was rightly convicted by the High Court of the offence under Section 5(2) of the Prevention of Corruption Act.      Hence, we  have no  good ground  to interfere  with the findings of  the High  Court  regarding  the  guilt  of  the appellant. Accordingly we dismiss this appeal.