Ghanshyam Vs. State of M.P. - Court Judgment

Excerpt:
- - 1) as illegal gratification and he was threatening him that on failure to pay this amount per month he would again revert him to the post of extra departmental messenger. his testimony is not reliable.s.p. khare 1. appellant ghanshyam has been convicted under section 161, ipc and section 5 (1) (d) read with section 5 (2) of the prevention of corruption act, 1947 and sentenced to rigorous imprisonment for two years on each count.2. it is not in dispute that accused ghanshyam was assistant superintendent of post offices at sagar. asharam (p.w. 1) was extra departmental messenger. he was transferred and posted as a peon in city post office at sagar. he was earlier getting remuneration of rs. 247/- per month and after his posting as peon he started getting an amount of rs. 550/- per month. it is further admitted that on 31-1-1986 at about 5.00 p.m. asharam (p.w. 1) gave an amount of rs. 80/- to the accused near natraj hotel. this amount consisted of four currency notes of rs. 20/- each. this amount was seized from him as per seizure memo ex. p-14. the hands of accused ghanshyam were washed in the solution of the sodium carbonate and the colour of the liquid became pink.3. the prosecution case is that the accused was demanding an amount of rs. 50/- per month from asharam (p.w. 1) as illegal gratification and he was threatening him that on failure to pay this amount per month he would again revert him to the post of extra departmental messenger. asharam (p.w. 1) paid an amount of rs. 20/- to the accused. he promised to pay the remaining amount of rs. 80/-. asharam (p.w. 1) submitted his complaint ex. p-1 in the office of lokayukta, sagar to the d.s.p, he directed m.p. dubey (p.w. 4), an inspector to arrange the trap. b.k. shrivastava, working as a principal in basic training institute, sagar was called as a witness. he was shown complaint ex. p-l. asharam (p.w. 1) produced four currency notes of rs. 20/- each. these were smeared with phenolphthalein powder by baburam, a clerk. preliminary panchnama (ex. p-2) was prepared. these notes were kept in the pocket of the coat of asharam (p.w. 1). he was given usual instructions. asharam (p.w. 1) went to the house of the accused but he was not. available there. he searched him and found him in civil lines. asharam (p.w. 1) gave the tainted currency notes to the accused and gave a signal to the trap party. on seeing the trap party the accused threw currency notes on the road. these currency notes were picked-up by b.k. shrivastava and these were seized as per seizure memo (ex. p-14). the inspector recorded the report (ex. p-16).4. the accused pleaded not guilty. his defence is that on 1-1-1986 asharam (p.w. 1) had borrowed an amount of rs. 100/- from him in the presence of harprasad (d.w. 1). on 27-1-1986 the accused asked asharam (p.w. 1) to repay the amount of the loan. asharam (p.w. 1) had partly repaid the loan amount to the accused on 31-1-1986. the accused never demanded nor accepted any illegal gratification from asharam (p.w. 1).5. the trial court after appreciation of the evidence adduced by both the sides held that the accused had demanded illegal gratification from asharam (p.w. 1) and had accepted the amount of rs. 80/- on 31-1-1986 as a bribe.6. in this appeal it has been argued on behalf of the appellant that (a) the accused was a central government employee and, therefore, the inspector of the special police establishment was not competent to lay a trap against him; (b) the sanction for prosecution given by the director, postal services, raipur region, raipur as per ex. p-21 is not valid as his appointing authority was the director of postal services, bhopal, and (c) the amount was not paid to the accused as illegal gratification but it was repayment of the loan taken by asharam (p.w. 1).7. point (a):in ashok kumar kirtiwar v. state of m.p., 2001(3) m.p.h.t. 286, it has been held by a division bench of this court that the inspector of the special police establishment has the power to investigate the offence under the prevention of corruption act, 1947 and 1988 against a central government employee also. therefore, the argument of the learned counsel for the appellant on this point is not acceptable.8. point (b):the sanction order dated 30-3-1987 ex. p-21 has been issued by the director, postal services, raipur. the argument raised on behalf of the appellant is that he was appointed by the director, postal services, bhopal and, therefore, the sanction order could not be issued by the director, postal services, raipur. this argument is not acceptable. the sanction has been given by the authority competent to appoint and remove an employee or an officer of the rank of the accused in the postal department and, therefore, there is no infirmity if the sanction for prosecution has been accorded by the director of postal services, raipur.9. point (c):asharam (p.w. 1) has deposed that the accused had demanded an amount of rs. 50/- per month as the illegal gratification for showing him the favour of posting him to the city post office which entitled him to higher remuneration. he has further stated that he had paid an amount of rs. 20/-and promised to pay the remaining amount. he made complaint (ex. p-l) to the d.s.p. (lokayukta) and then the trap was laid. he produced the four currency notes of rs. 20/- each which were treated with phenolphthalein powder and their numbers were noted in the preliminary panchnama (ex. p-2). these currency notes were kept in the pocket of his coat and he tendered these notes to the accused which were accepted by him. he has denied the suggestion that he had taken any loan from the accused and the amount of rs. 80/- was paid to the accused as repayment of that loan. other evidence of the prosecution is of formal character. the accused has admitted the receipt of rs. 80/-from asharam (p.w. 1). the question is whether this amount was paid to him as illegal gratification or it was repayment of the loan. the story of advancement of rs. 100/- by the accused to asharam (p.w. 1) as a loan on the face of it is highly improbable. asharam (p.w. 1) has denied, as already stated, that he had taken the loan of rs. 100/- from the accused. harprasad (d.w. 1) has been examined as defence witness to support the case of the accused. his testimony is not reliable. he is working under the accused and, therefore, he has come forward to help him. the evidence of asharam (p.w. 1) that he gave the amount of rs. 80/- to the accused as illegal gratification is true and is corroborated by his previous conduct in submitting the complaint (ex. p-1) before the d.s.p. asharam (p.w. 1) had no reason to implicate the accused falsely if he had taken an amount of rs. 100/- as loan from him. from the evidence on record it is found that the accused on seeing the trap party had thrown the currency notes on the ground. in case this amount represented the refund of the loan he would not have thrown these currency notes.10. the supreme court has held in madhukar bhaskarrao joshi v. state of maharashtra, 2000 air scw 4018, interpreting section 4 of the prevention of corruption act, 1947 and the similar provision in section 20(1) of the act of 1988 that once the prosecution established that gratification in any form -- cash or kind -- had been paid or accepted by a public servant the court is under a legal compulsion to presume that the said gratification was paid or accepted as a motive or reward to do (or for bear from doing) any official act. the same view has been taken by a larger bench of the supreme court in m. narsinga rao v. state of andhra pradesh, air 2001 sc 318.11. in view of the two decisions referred to above and the evidence on record it must be held that the accused accepted the amount of rs. 80/-from asharam (p.w. 1) as illegal gratification. the defence version that this was repayment of the loan by asharam (p.w. 1) is not proved even by 'preponderance of probability' nor it can be said to be reasonable and plausible. the defence story is highly improbable.12. the conviction of the appellant for the aforesaid offence is unassailable. however, keeping in view that this case relates to the year 1986 and since then sixteen years have passed, the sentence of rigorous imprisonment of two years is reduced to one year on both counts which will run concurrently. with this modification in the sentence, the appeal is dismissed.