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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.