advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, September 14, 2015

presumption can be drawn under Section 20 of the Prevention of Corruption Act, 1988, regarding the motive of receiving the gratification unless it is rebutted. In the present case, in our opinion, the presumption does not stand rebutted.

                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1917  OF 2008


Indra Vijay Alok                             ... Appellant

                                   Versus

State of Madhya Pradesh                              … Respondent



                               J U D G M E N T


PRAFULLA C. PANT, J.


      This appeal is directed against judgment and  order  dated  31.8.2007,
passed by the High  Court  of  Madhya  Pradesh,  Jabalpur  (Gwalior  Bench),
whereby said Court has dismissed  Criminal  Appeal  No.  102  of  2000,  and
affirmed conviction and sentence recorded against accused Indra  Vijay  Alok
under Sections 7 and 13(1)(d) read with  Section  13(2)  of  Prevention  and
Corruption Act, 1988 by the Special Judge, Datiya, in Special Case No. 1  of
1992.

We have heard learned counsel for the parties  and  perused  the  papers  on
record.


Prosecution story, in brief, is that a piece of land in Badoni Khurd was  in
the name of one Badri, younger brother  of  PW-3  Ram  Singh  (complainant).
Appellant Indra Vijay  Alok  was  the  Patwari  of  Halka  area  during  the
relevant period, i.e. in 1987. After death of  Badri,  complainant  and  his
mother Bhagobai sought mutation of their names in the revenue  record.  When
Bhagobai, mother of the complainant, met the appellant in  this  connection,
he demanded Rs. 1900/- out of which she paid  Rs.  900/-.  When  Complainant
(PW-3) came to his village, his mother told him about  the  demand  made  by
the appellant. On this, on 18.05.1987 he (PW-3) himself met  the  appellant,
who clearly told him that unless further  Rs.1000/-  is  paid  to  him,  the
mutation would not be done.  This compelled PW-3 Ram Singh (complainant)  to
make  a  complaint  (Ext.P-3)  on  17.6.1987  to  Superintendent  of  Police
(Vigilance), Gwalior.  A trap was laid, headed by PW-4 B.L. Vashist  (Deputy
Superintendent of Police) in which PW-2 Ashok  Bhargava  (Deputy  Collector)
and one Sahir (DW-6) were panch witnesses.  Before trap, ten currency  notes
of Rs.100/- of the complainant were applied phenolphthalein  powder,  and  a
memorandum (Ext.P-4) was prepared.  As per the  plan,  PW-3  Ram  Singh  and
panch witness Sahir were followed by PW-2 Ashok Bhargav,  Deputy  Collector,
PW-4 B.L. Vashist, Deputy  Superintendent  of  Police,  and  PW-6  Inspector
Raghuraj Shastri.  When the team reached  the  house  of  the  appellant  in
Khidki, Distt. Datiya, and the appellant accepted the amount  of  Rs.1000/-,
a signal was given  to  the  police  party,  which  immediately  caught  the
appellant and his hands were washed in water in a bucket, which turned  red.
 Thereafter, the raiding party asked the appellant  to  take  out  Rs.1000/-
accepted by him from PW-3 Ram Singh. The currency  notes  recovered  tallied
with  the  memorandum  (Ext.P-4)   and   fresh   panchnama   was   prepared.
Thereafter, the appellant was arrested  and  crime  was  registered.   After
investigation, the Investigating Officer R.S.  Parihar  (since  died)  filed
the charge sheet against the appellant Indra Vijay Alok  for  his  trial  in
respect of offences punishable under  Sections  7  and  13(1)(d)  read  with
Section 13(2) of Prevention of Corruption Act, 1988.



The trial court, after hearing the parties, appears to  have  framed  charge
against the accused to which the accused pleaded not guilty and  claimed  to
be tried.



On  this,  prosecution  got  examined  PW-1   R.R.-Vishwa  Deva  (clerk   in
Collector’s office), PW-2 Ashok Bhargav (Deputy Collector), PW-3  Ram  Singh
(complainant), PW-4 B.L. Vashisth (Deputy Superintendent  of  Police),  PW-5
S.R. Tiwari (Assistant Grade I), and PW-6 Raghuraj Shastri (Inspector).


Prosecution evidence was put to the accused Indra Vijay Alok,  in  reply  to
which he only admitted that he was Patwari of  the  Halka  at  the  relevant
period, and there was land in the village recorded in  the  name  of  Badri,
but as to the rest of the evidence he denied the same as incorrect.




In defence, the appellant got examined DW-1 Baijnath, DW-2 Ram Swaroop,  DW-
3 Hardas, DW-4 Swami Sharan Saxena, DW-5 Sita Ram Gupta, and DW-6 Sahir.


The trial court, after hearing the parties, found that the evidence of  PW-3
Ram Singh and statement given by PW-2 Ashok Bhargav (Deputy Collector)  read
with the statements  of  other  prosecution  witnesses,  and  the  documents
proved on record, leave no room of doubt that the accused demanded Rs.1000/-
 from PW-3 Ram Singh for getting entered his name and that of his mother  in
place of Badri in the  revenue  record,  and  Rs.1000/-  was  given  to  and
accepted by the accused when the trap was laid, and the same  was  recovered
from the pocket of his pant. Thereafter, the trial court heard  the  accused
on sentence, and sentenced him to rigorous imprisonment for a period of  one
year and  directed  to  pay  fine  of  Rs.1000/-  under  Section  7  of  the
Prevention of Corruption Act,  1988.   The  accused  was  further  convicted
under Section 13(1)(d) read with Section 13(2) of the Act and  sentenced  to
rigorous imprisonment for a period of two years and directed to pay fine  of
Rs.1000/-.  For each of the defaults in payment of  fine,  the  convict  was
directed to undergo further three months rigorous imprisonment.



Aggrieved by said judgment and order  dated  10.2.2000,  passed  by  Special
Judge, Datiya in Special Case No. 1 of 1992, the convict  Indra  Vijay  Alok
preferred appeal before the High Court  which  was  registered  as  Criminal
Appeal No. 102 of 2000. The High Court,  after  hearing  the  parities,  re-
appreciated the evidence and concurred  with  the  conviction  and  sentence
recorded by the trial court.  Hence this appeal through special leave.



Learned counsel for the appellant argued before us that  the  panch  witness
Sahir has not supported the prosecution case, as such the courts below  have
erred in law in believing the prosecution story.  Having  gone  through  the
papers on record, we do not find substance in the  argument.  The  statement
of PW-3 Ram Singh (complainant) gets corroborated by the statement  of  PW-4
B.L. Vashist (Deputy Superintendent of Police), as well  as  by  PW-2  Ashok
Bhargav, Deputy Collector who is superior officer  of  the  appellant’s  own
department.  As such we find that the courts below have committed  no  error
of law in relying on the testimony of above three witnesses as  trustworthy,
against the statement of DW-6 Sahir, who appears to have been  won  over  by
the defence. We are of the opinion that merely  for  the  reason  that  DW-6
Sahir has  not  supported  prosecution  case,  the  ring  of  truth  in  the
prosecution case is not shaken in the present case, particularly,  when  the
statements of remaining witnesses are credible and trustworthy.


It is also pointed out  by  learned  counsel  for  the  appellant  that  the
Investigating Officer R.S. Parihar was  not  examined  by  the  prosecution.
This, in our opinion, has no legs for the reason that it  has  come  on  the
record that the  Investigating  Officer  R.S.  Parihar  had  died  when  the
prosecution evidence was recorded.


Lastly, it is submitted on behalf of the appellant that Bhagobai, mother  of
the complainant, from whom demand was allegedly made, was not  examined,  as
such it cannot be said that the amount so recovered from the  appellant  has
anything to do with the  mutation.   We  have  carefully  gone  through  the
deposition of PW-3 Ram Singh in the original record, and found that  he  has
clearly stated that initial demand of Rs.1900/- was made to his mother,  who
paid Rs.900/- to the appellant, but when he came back to  his  village,  his
mother told him that further Rs.1000/- was required to  be  arranged.   PW-3
Ram Singh further told the court that  on  this,  he  himself  went  to  the
appellant and requested not to demand further money, but he (appellant)  did
not relent.  In the circumstances, according to PW-3, he went  to  Lokayukta
Office and made a complaint, but the Office  of  Lokayukta  advised  him  to
reach to Rest House, Datiya.  On this, he went to  the  Rest  House,  Datiya
and made a complaint to the Vigilance Department  and  thereafter  trap  was
laid, and the amount of Rs.1000/- was given by  him  to  the  appellant  and
recovered from him (appellant). Even otherwise,  presumption  can  be  drawn
under Section 20 of the Prevention of Corruption Act,  1988,  regarding  the
motive of receiving  the  gratification  unless  it  is  rebutted.   In  the
present case, in our opinion, the presumption does not stand rebutted.


Having considered submissions of  learned  counsel  for  the  appellant  and
learned counsel for the  State,  and  after  going  through  the  papers  on
record, we do not find any illegality in appreciation  of  evidence  by  the
courts below.  We further agree  with  the  sentence  recorded  against  the
appellant by the trial court and affirmed by  the  High  Court  against  the
appellant.  Sanction of prosecution is also proved on  the  record  by  PW-5
S.R. Tiwari.  The request of learned counsel for  the  appellant  to  reduce
the period of sentence  to  the  period  already  undergone  too  cannot  be
accepted, in the facts and circumstances of the present case.


For the reasons, as discussed above, we are not inclined to  interfere  with
the impugned order passed by the High Court.   Accordingly,  the  appeal  is
dismissed.   The  bail  granted  to  the  appellant  Indra  Vijay  Alok   is
cancelled.  The trial court shall take him into custody  to  serve  out  the
remaining part of the sentence.


                                                           ……………….....…………J.
                                                   [Ranjan Gogoi]


                                                             .……………….……………J.
New Delhi;                         [Prafulla C. Pant]
August 31, 2015.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.