OMKAR LAL SHARMA Vs. STATE OF M P

JUDGEMENT

(1.) Feeling aggrieved by the judgment of conviction and order of sentence dated 21/11/2003 passed by learned Special Judge, Shivpuri in special case No. 1/2002 convicting the appellant under Sections 7,13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) and there by sentencing him to suffer one year's rigorous imprisonment and fine of Rs. 1.0001- in default to suffer further rigorous imprisonment of two months', the appellant has knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973.

(2.) In brief the case of prosecution is that against the complainant-Ashok Kumar Gupta, a resident of village Dinara, his brothers submitted a complaint which was being inquired by the appellant who was serving on the post of Head Constable in Police Station Dinara. In that matter, it is said that appellant made demand of illegal gratification of Rs.2,000/- from the complainant failing which a threat was given to him that a case would be registered against him. Since the complainant was not keen enough to give any amount of bribe, eventually, he submitted a complaint in the Special Police Establishment at Gwalior on 19/3/2001 and requested to arrange for a trap. The Superintendent of Police of Special Police Establishment deputed Inspector Arvind Khare to inquire about the complaint of the complainant, as a result of which, the said inspector handed over a micro tape-recorder along with a cassette to the complainant by giving direction to record the conversation of bribe. Simultaneously to depute two gazetted officers, a letter to Collector Gwalior was also written. On the basis of the said letter, two Panch witnesses, namely, R.C. Bansal, Assistant Engineer, and M.S. Sengar gazetted officer were sent by the Collector to the office of Special Police Establishment. In the presence of these Panch witnesses a Panchnama of handing over the tape-recorder was prepared and the tape recorded version was also heard by playing the cassette. Thereafter, a transcript of the tape recorded version was prepared which was affirming the averments made in the complaint of the complainant. The panch witnesses put certain queries to the complainant in order to testify the authenticity and hallmark of the complaint. The complainant aging submitted another complaint on 21/3/2001 on the basis of which a case was registered against the appellant. Thereafter, on being submitted three currency notes having denomination of Rs. 500/- each and five currency notes having denomination of Rs. 100/- each, in total Rs. 2,000/- they were coated by phen-olphthalein powder and these treated currency notes were kept in the right pocket of the trousers of the complainant by giving direction that how the bribe money is to be given and in what manner the signal that the transaction of the bribe is over is to be given. A pre-demonstration of the change of colour of the solution of sodium carbonate on coming into contact with phen- olphthalein powder was also conducted in the office of Special Police Establishment. A pre-trap Panchnama was also prepared.

(3.) Thereafter, the trap proceeded for conducting the trap and arrived at the house of Govinddas Yadav in which appellant was residing as a tenant. The complainant alone was sent to hand over the bribe amount, but the appellant was not found in his house. After waiting for near about 30-45 minutes when appellant came to his home, the complainant was again sent to give the bribe. After some time complainant came out from the house of appellant and gave signal to the members of the trap party who immediately rushed inside the house and Head Constable Bhagwati and Constable Ummed Singh caught hold of the hands of the appellant from the wrist. Thereafter, a solution of sodium carbonate was prepared in which the fingers of the hands of the appellant were dipped and on dipping the fingers in the said solution the colour of the solution changed to pink. Thereafter, the fingers of the hands of the Panch witness M.S. Sengar (not examined) were dipped in a separate solution of sodium carbonate, but on dipping the fingers of his hands the colour of the solution did not change. The Panch witness M.S. Sengar on being informed by the appellant took out the treated currency notes which were kept in his right pocket and the numbers of the currency notes were tallied with the pre-trap Panchnama and they were found to be the same. These treated currency notes were seized and sealed. Thereafter, again the fingers of the hands of the Panch witness M.S. Sengar were subjected to phenolphthalein powder test which was found to be positive. Similarly, the phenolphthalein powder test was also conducted on the hands of the complainant and as well as on the pocket of his shirt and the chemical test was found to bepositive. The tinted solution of sodium carbonate was collected in separate bottles which were also sealed and these bottles were sent for chemical examination.