UDAY SINGH JAIN Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal has been filed under Section 374 of the Cr.P.C. by Uday Singh Jain being aggrieved by judgment dated 18.01.06 passed by Special Judge (Prevention of Corruption) Act, Shajapur in Special Sessions Trial No. 3/2002 convicting the accused for offence under Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to undergo rigorous imprisonment for one year with fine of Rs. 2,000/ -and for offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 sentencing him to 2 years RI with fine of Rs. 3000/ -and in case of failure to pay the fine he was to undergo an additional sentence of 3 months RI. Both the sentences were to run concurrently.

(2.) Brief facts of the prosecution case are that complainant Manoj Kumar Bhatnagar P.W.1 was the owner of land bearing Survey No. 1626/19 near Ujjain Road which was registered in the name of his minor son Harshad. From the said land area of 20 x 40 = 800 Sq. Ft. was sold by Manoj P.W.1 to Satyaprakash P.W.2 for a sum of Rs. 20,000/ -and sale deed was prepared after purchasing of stamp of Rs. 2000/ -. Thereafter complainant went to meet the accused Uday Singh who was Sub Registrar. The accused informed that besides the stamp of Rs. 2000/ -already purchased, in addition, another worth Rs. 6000/ -of stamps would be required. And since the complainant expressed inability to pay so much money, the accused Uday Singh informed him if he paid him Rs. 1200/ -he would register, the deed on stamp fees of Rs. 2000/ -only; by using his good offices. He stated that he would endorse a note as tip for the Registrar, Shajapur that the deed was OK and would get the sale -deed registered. The accused called the complainant Manoj Kumar for payment of Rs. 1200/ -on 12.10.01 at the office at 1 PM. Thereafter the complainant Manoj PW1 decided to get the accused, trapped red handed and hence met the Police Superintendent Lok Ayukta Establishment Ujjain and filed a written complaint Ex.P/1. The Police Superintendent instructed Aurn Kumar Samadhia, Inspector; P.W.13, to investigate the matter and two panchas were also summoned and in front of these witnesses Ashok Kumar Shukla P.W.8 and Tek Chandra Sharma P.W.9; the complainant Manoj P.W.1 was introduced and informed of the complaint Ex.P/1. Tek Chandra Sharma endorsed the complaint as a witness and the complaint was read out to him in front of the complainant Manoj P.W.1. The complainant accepted that the complaint was according to his instruction and the FIR Ex.P/26 was thereafter recorded by the Lokayukta Special Police Establishment, Ujjain against the accused Uday Singh and offence was registered at crime No. 0/24/01 for offence under Section 7 of the Prevention of Corruption Act and a copy was sent to the Special Police Establishment Lokayukta, Bhopal vide Ex.P/27. Thereafter he recorded the crime at No. 203/2001 and thus the Ex.P/26 and P/ 27 are the reports regarding the crime dated 13.10.2001 and 17.10.2001 respectively. The complainant Manoj was handed over 12 currency notes of Rs. 100/ -each total sum of Rs. 1200/ -. Tek Chandra Sharma P.W.9 counted the notes and the numbers were noted down by Ashok Kumar Shukla P.W.8. P.W.5 Mangilal the peon dusted the phenolphthalein powder and thereafter the complainant was examined and he was asked to take away all the articles that were in his pocket and the phenolphthalein dusted notes were placed in his pocket. Complainant Manoj was thereafter instructed not to touch the currency notes and not talk anybody on the way and only handover the money to the accused on receiving the pre -signal. Thereafter sodium solution was prepared in an utensil and the complainant was asked to wash his hands and the solution did not change the colour. Similarly when the peon Mangilal P.W.5 washed his hands the colour to be dark pink which was seized and placed in two bottles and duly sealed. Two small pouches of powder were provided and they were also sealed and taken along with the trap party. The trap party reached the place of incident only after Ex.P/2, the panchnama regarding the washing of the hands and the number of the trap members vide Ex.P/3 panchnama, took action for conducting the raid. They went to a dhaba at Agar and complainant Manoj P.W.1 was asked to fetch the disputed sale deed. Tek Chandra Sharma P.W.9 accompanied him and thereafter the registered sale -deed Ex.P/5 was compared with the original sale deed and the trap members were asked to again wash their hands with the phenolphthalein solution, the solution did not change the colour and the panchnama is Ex.P/4. Thereafter the complainant Manoj Kumar P.W.1 along with printed currency notes and the document for registration went into the office of the accused and after coming out, gave pre -determined signal; whereupon, rushing inside constable Sachidanand Singh P.W.4, Halkai Prasad held the hands of the accused. Thereafter the panch witnesses, the complainant, and the trap party, all the members rushed into the room of the accused and the members introduced themselves and washed the hands of the accused in the sodium carbonate solution. The solution turned to light pink, the same was collected and sealed duly; then the hands of the complainant were also washed in the solution and solution again turned pink, that solution was collected and duly sealed. On asking the accused regarding the currency notes accepted as bribe; the accused has stated that the money was in the table drawer. When Tekchand Sharma (P.W.9) the panch witness opened the drawer, he did not find the same. The accused stated that he had given the currency to one Paras Kothari (P.W.7) who was sitting in front on the bench. Paras Kothari admitted that he had taken currency notes from the accused and from the left pocket of his shirt he removed the money and kept it on the table. Then Tekchand Sharma (P.W.9) counted them, and the numbers were tallied by the members of the trap party, and found them to be the same which had been given by dusting phenolphthalein powder to the complainant Manoj. Thereafter the currency notes were placed in an envelope which was also sealed duly. Similarly separate solutions by washing hands of Tekchand Sharma, Paras Kothari P.W.7 and the shirt left packet of Paras Kothari P.W.7 were also washed in the solution and the solution were maintained in different bottles and duly sealed. The entire procedure was completed and the seizure memo Ex.P/6 was duly prepared. The original sale deed prepared on the stamp paper of Rs. 2000/ -and the receipt was seized vide Ex.P/8(C) and Ex.P/7. The receipt of supurdgi was Ex.P/9 (since the same was handed over on supurdgi to the complainant Manoj vide the supardgi panchnama Ex.P/9). The spot map Ex.P/10 was prepared. The accused was arrested vide Ex.P/21. The arrest memo and the letters of appointment etc of the accused were seized vide Ex.P/13 to Ex.P/16 and the other sale deeds indicating the market value of the adjoining lands was Ex.P/17. The seized articles were sent for the FSL vide Ex.P/24. The FSL report is Ex.P/25. On completion of the investigation and receipt of the sanction from the department vide Ex.P/18 the chargesheet for offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act was duly filed. The accused on being committed, abjured his guilt and stated that he has been falsely implicated in the matter. In his statement under Section 313 of the Cr.P.C. his defence was that the complainant had placed the bribe money; that is, currency notes on his table and he had just pushed the notes away since the stamp was of insufficient amount and he had directed that under Section 47 -A of the Stamp Act proper proceedings would have to be taken before the Collector of stamps. He had neither made a demand for bribe nor had he received any money and the accused stated that he was being falsely implicated in the matter. He however did not examine any witness in his defence. The Trial Court on considering the evidence convicted and sentenced him as herein above indicated and hence the present appeal.

(3.) RELYING on A. Subair Vs. State of Kerala ( : (2009) 6 SCC 587) Counsel urged that the Apex Court had while considering the another case C.K. Damodaran Nair v. Govt. Of India : (1997) 9 SCC 477 considered that the word "obtain" means to secure or gain (something) as the result of request or; effort is the dictionary meaning of word and in case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act of 1947 unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either 'acceptance' or 'obtainment'.