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2002 DIGILAW 262 (CAL)

State v. Karan Lal Shaw

2002-04-22

PRADIP KUMAR BISWAS

body2002
JUDGMENT The judgment of the Court was as follows:–– This appeal against acquittal has been filed at the instance of the State through Superintendent of Police, Central Bureau of Investigation, Special Police Establishment Anti Corruption Branch, Calcutta against the judgment and order of acquittal dated 31.7.95 passed by Sri N. C. Sil, Judge, 24-Parganas, 1st Special Court, Alipore in Special Court Case No. 15 of 1993 whereby the learned Judge was pleased to acquit the accused/opposite party of the charges punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Preventive of Corruption Act, 1983. 2. The short facts leading to the filing of this Appeal may be given as under :–– One Sri Nandalal Jaiswara, an employee of Gang No.5 of Eastern Railway, Chitpur, Calcutta made one written complaint to the Superintendent of Police, Central Bureau of Investigation to the effect that Karan Lal Shaw, Head Clerk of his Office demanded an illegal gratification of Rs.100/- from him for getting his dues on account of leave salary etc. 3. It was further stated that the complainant had been suffering from T.B. and was treated in Railway Hospital and he could not intimate his office about his illness for which he was shown absent. After 7.10.92, he submitted his fit certificate and tried to regularise his leave for which he had been approaching the aforesaid accused for preparation of his bills and payments of his arrears/dues since September, 1992. 4. But the accused Karan Lal Shaw demanded illegal gratification of Rs. 100/- to be paid to him on 22.2.93 at 2 p.m. as otherwise the case of the complainant would be spoiled. 5. On the basis of the aforesaid complaint, C.B.I registered a case as R.C. Case No. 8/93-Calcutta dated 22.2.93 against the aforesaid accused person. 6. The trap was laid on 22.2.93 at the office of the complainant in the presence of two independent witnesses after observing all necessary formalities of demonstration for reaction of phenalphthalein power with the solution of sodium carbonate. The conversation of the accused with the complainant in the office was heard by the independent witnesses and the transaction of giving and accepting the bribe was seen by them. 7. The aforesaid accused was caught red-handed while accepting the bribe of Rs. 100/- which was recovered from his exclusive possession. 8. The conversation of the accused with the complainant in the office was heard by the independent witnesses and the transaction of giving and accepting the bribe was seen by them. 7. The aforesaid accused was caught red-handed while accepting the bribe of Rs. 100/- which was recovered from his exclusive possession. 8. After completion of investigation, charge-sheet was submitted under Section 7 and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The learned Trial Judge in course of Trial framed charge under Sections 7 and 13 (1) (d) of the Prevention of Corruption Act, 1988 against the aforesaid accused when he pleaded not guilty and claimed be tried. 9. The defence case, as it appears, is a total denial and it was alleged on behalf of the accused that he accepted Rs. 100/- from the complainant on that date as repayment of the instalments of loan. 10. In course of trial as many as nine(9) witnesses were examined on behalf of the prosecution to bring home the charge against the aforesaid accused person and from the side of the defence, two witnesses were examined and the learned Trial Judge after examining the aforesaid witnesses, and after hearing all the arguments of the parties, acquitted the aforesaid accused person of the aforesaid charges. 11. Being aggrieved by and dissatisfied with the aforesaid order of acquittal, the present appeal has been preferred by the State through C.B.I. alleging that the impugned order of acquittal is bad in law both on facts and law and the learned Trial Judge has based his judgment on surmises and inferences drawn from personal guesses and assumptions and not on the available materials on record. 12. It has further been alleged that there has been mis-appreciation of evidence on record and as such the impugned judgment and order of acquittal being perverse the same has resulted in failure and gross miscarriage of Justice. Hence, this appeal. 13. 12. It has further been alleged that there has been mis-appreciation of evidence on record and as such the impugned judgment and order of acquittal being perverse the same has resulted in failure and gross miscarriage of Justice. Hence, this appeal. 13. I have heard the learned Counsel appearing for the C.B.I / Appellant as also the learned Counsel appearing for the accused opposite party and also the learned Counsel appearing for State and Sri Ranjan Roy, appearing for the C.B.I. has taken me through the evidence on record and with reference to the evidence on record, he has forcefully contended that there are sufficient cogent materials-on-record to come to a positive finding with regard to finding of guilt against this accused person and as such the order of acquittal is not at all tenable. 14. The contention of the learned Counsel appearing for the C.B.I. has been opposed by the learned Counsel appearing for the accused/respondent and it has been contended on their behalf that normally the High Court will not interfere with the order of acquittal unless it is an exceptional case and the order of lower Court is found to be manifestly wrong and perverse. 15. True it is that in an appeal against the judgment and order of acquittal ordinarily the High Court will not interfere with the judgment of acquittal unless the judgment of the lower Court is palpably wrong and perverse. 16. With such background, I shall now proceed to probe into the merit of the instant appeal. 17. Sri Ranjan Kr. Roy, learned Counsel appearing for State/C.B.I. as appellant placing the evidence and materials-on-record before me has forcefully contended that payment of money and acceptance of the same have not been disputed in the instant case. But it was the contention of the C.B.I./Appellant that such payment was made by way of illegal gratification other than the legal remuneration as a motive or reward for settling the dues that is pay in favour of Nand Lal Jaiswara for the period of his sickness and hospitalization for the period of 1992 and from the side of the accused/respondent, it was contended that such payment was made as instalments for re-payment of loan, incurred by said Nand Lal Jaiswara from the accused/respondent for the illness of the daughter of Nand Lal Jaiswara. 18. 18. In this connection, he has further contended that since the learned Trial Judge did not accept the plea of loan and the re-payment of instalment of loan of Nand Lal Jaiswara to the accused/respondent, the prosecution has earned certain benefit for that and the said fact taken together with the evidence on record as has been adduced by P.W.1, Gour Datta, P.W.2, Nand Lal Jaiswara, P.W.3, A.K. Palit and P.W.9, S.N. Bhattacharyya, it will be crystal clear that the accused/respondent Karan Lal Shaw made demand and accepted an amount of Rs. 100/- from Nand Lal Jaiswara, a Gangman of Gang No.5 in, the Department of P.W.I, Eastern Railway, as illegal gratification other than the legal remuneration as a motive or reward for settling the dues that is the pay in favour of said Sri Jaiswara for the period of his sickness and hospitalization during the period of 1992. 19. He has further submitted that the learned Trial Judge on the face of such patent evidence and circumstances available and specially when the loan theory set up by the defence could not be accepted, has failed to appreciate the evidence of the aforesaid witnesses in their true perspective and as such there has been a miscarriage of justice by recording a manifestly wrong and perverse finding and as such necessary interference should be made by this Court by convicting the aforesaid accused respondent on the evidence and materials on record to meet the ends of justice. 20. True it is that the prosecution in securing the conviction against any accused person is required to prove charges levelled against such accused person beyond all reasonable shadow of doubt. But the degree and standard of proof in establishing a defence case and alibi, set up by the defence are somewhat different from that of the prosecution case and for establishing the defence case and alibi taken by the defence; on assessing the evidence adduced by the defence, the Court has to come to a finding depending upon the preponderance of probabilities and the defence is not at all required to prove their case beyond all reasonable shadow of doubt. 21. 21. Here, looking into the evidence on record, specially from evidence of P.W.1, Sri Gour Datta alleged witness to memo of trap and trap I find this witness in his evidence-in-chief has stated that they stopped their vehicle at a considerable distance from the office and thereafter they followed Mr. Jaiswara. Mr. Jaiswara went to the table of Mr. Karan Lal Shaw and on seeing Mr. Jaiswara, Mr. Shaw asked Mr. Jaiswara whether he brought the money and Jaiswara affirmed the same. 22. The witness has further stated that Mr. Jaiswara handed over the money to Mr. Shaw. Then Mr. Jaiswara also requested to expedite the work and Mr. Shaw assured him. After some time the Inspector entered there and caught Mr. Shaw. 23. P.W.2 Nand Lal Jaiswara with regard to the aforesaid payment has stated in his evidence that thereafter, they all went to their office and on demand by accused he handed over two fifty rupee notes to him and thereafter he left the place. 24. P.W.3 A.K. Palit, vigilance Assistant of B.H.E.L. with regard to the incident in question has stated in his evidence that Mr. Jaiswara entered into a room and had talked with Mr. Karanlal Shaw, he and Gour Dutta were standing at distance of less than two yards from Mr. Shaw, and heard Mr. Jaiswara telling Mr. Shaw in Hindi that he has brought somewhat he was to bring and accordingly, Mr. Jaiswara handed over two fifty rupee notes to Mr. Shaw and the latter accepted the same and kept the money in the left side pocket of his trouser. Thereafter, Mr. Shaw and Jaiswara came out to the verandah and then Mr. Bhattacharjee challenged Mr. Shaw and Mr. Shaw admitted everything. 25. P.W.9, S.N. Bhattacharyya, the I.O. of this Case a leader of the trap party in his evidence has stated that of Office of P.W. I is situated in Railway Quarters having an open verandah and Court yard in front of it. He has further stated that he saw Nanda Lal along with others to enter into the room and within a few seconds, he found Nanda Lal to come out with another person with whom he was talking. He has further stated that he saw Nanda Lal along with others to enter into the room and within a few seconds, he found Nanda Lal to come out with another person with whom he was talking. He has further stated that they were talking within the reach of their audibility and as such he heard what they were talking about and they were talking in the open verandah near the witnesses. 26. This witness has further stated that he heard Karan Lal demanding bribe from Nanda Lal and in turn Nanda Lal confirmed that he brought Rs. 100/- for him and at that time Nanda Lal took out the money from his pocket and handed over the money to Karan Lal who in turn put the same into his left side pocket of his trouser, and immediately thereafter Nanda Lal gave the signal as arranged earlier and getting such signal he along with other officers arrived there and challenged Karanlal and Karanlal admitted his guilt then. 27. So, upon assessing and sifting the aforesaid evidence with regard to the demand of bribe and offering of bribe, we get different pictures with regard to above facts from the aforesaid witnesses contradiction each other and in view of the aforesaid position, the evidence of P.W. 2 Nanda Lal being in the nature of evidence of an accomplice, his evidence cannot at all be accepted without sufficient corroboration. 28. Furthermore, P.W.5, Mr. A.K. Lahiri, Chief P.W.I., Chitpur Yard in his evidence did not support the prosecution version in any way rather he has lent a support to the story of loan as advanced by the accused when he himself has stated in his evidence in Chief, that on the asking of Mr. S.N. Bhattacharya Mr. Shaw told them that he gave a loan of Rs. 250/- to Mr. Jaiswara and Mr. Jaiswara returned Rs. 100/- out of the same. This witness was, however, declared hostile by the prosecution and even after thorough cross-examination this witness could not be discredited by way of cross-examination and his evidence remained unshaken even after cross-examination. 29. S.N. Bhattacharya Mr. Shaw told them that he gave a loan of Rs. 250/- to Mr. Jaiswara and Mr. Jaiswara returned Rs. 100/- out of the same. This witness was, however, declared hostile by the prosecution and even after thorough cross-examination this witness could not be discredited by way of cross-examination and his evidence remained unshaken even after cross-examination. 29. In a situation like this as per the settled norms the entire evidence of this witness should not be disbelieved and accordingly on careful scrutiny of the evidence adduced by this witness, I find no reason to disbelieve the evidence of the witness simply because that he has not supported the prosecution version in toto. 30. from the evidence of aforesaid witness, it has clearly transpired that this witness at the relevant lime was posted at Chitpur, Eastern Railway as Chief P.W.I. and in course of his deposition, he has clearly supported the loan theory as set up by the defence and in course of his evidence during cross-examination he has categorically stated that on 19.2.1993 neither Mr. Jaiswara nor Mr. K.L. Shaw was present on duty as it appears from the muster roll of the Attendance Register. This witness has further stated that the Nanda Lal Jaiswara never made any complaint to him against the accused as regards the non-settlement of his salary. 31. So, the aforesaid evidence of this witness taken together with the evidence adduced on behalf of the defence by examining the D.W. 1 and D.W. 2 the defence version of repayment of instalments of loan cannot at all be ruled out. 32. In the backdrop of the aforesaid evidence, it has become very much doubtful to accept the main allegation of the prosecution case when it was alleged that the complainant met the accused in his chamber on 19.2.93 and when the accused demanded an illegal gratification of Rs. 100/- to be paid to him in order to regularize his leave salary as P.W. 5, Sri A.K. Lahiri being Head of the Office in his deposition has stated in categorical term with reference to the muster roll of the Attendance Register that neither Mr. Jaiswara, nor Mr. 100/- to be paid to him in order to regularize his leave salary as P.W. 5, Sri A.K. Lahiri being Head of the Office in his deposition has stated in categorical term with reference to the muster roll of the Attendance Register that neither Mr. Jaiswara, nor Mr. K.L. Shaw was present in the office on 19.2.93 and further it has come out from the evidence adduced on behalf of the prosecution that in fact accused K.L. Shaw had no authority to deal with leave salary bill of the complainant. 33. The aforesaid facts taken together with discrepant evidence adduced by the prosecution regarding the manner and circumstances in which the bribe was allegedly given to the accused make us to disbelieve the very genesis of the prosecution case as there is also overwhelming evidence available on record that there were many persons present on that date at the place of occurrence where the money was allegedly given and allegedly................ 34. It has rightly been held therefore by the Learned Trial Judge that it cannot be conceived that bribe is accepted so openly in presence many persons. 35. I have already pointed out above from the evidence on record that there are discrepancies with regard to the place where actually bribe was given and the manner in which the bribe was given and accepted. 36. So, upon sifting the evidence adduced on behalf of the prosecution, I find that the evidence of P.W.2, N.L. Shaw suffers from infirmities and discrepancies and this evidence being an evidence of accomplice and such evidence having not been supported or corroborated by any other prosecution witnesses, no reliance/credence can be placed on such evidence. 37. In a situation like this, hardly any reliance can be placed on the prosecution allegation with regard to the payment of bribe as alleged by prosecution as I have already pointed out that the witnesses in course of their evidence have contradicted each other on material particulars with regard to the manner and circumstances in which the alleged bribe was given to the accused. Furthermore, it has come out from the evidence on record specially from the evidence of P.W. 5 that at the time of recovery of money, the accused gave an explanation of repayment of loan money. Furthermore, it has come out from the evidence on record specially from the evidence of P.W. 5 that at the time of recovery of money, the accused gave an explanation of repayment of loan money. The aforesaid fact taken together with the evidence adduced by the accused by examining the defence witnesses, as has been set up in this case alleging that the money taken by this accused from Nanda Lal Jaiswara was in connection with repayment of loan, advanced earlier to N.L. Jaiswara by this accused, cannot at all be ruled out. 38. In view of the discrepancies noted above in the prosecution evidence and taking into consideration the defence version and viewing the same from the point of preponderance of probabilities, I am rather prompted to hold in assessing the totality of the evidence that in the instant case, the prosecution has miserably failed to bring home the guilt of the accused person under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988. The Learned Trial Judge in his judgment has discussed the evidence and materials-on-record in detail and after that he has given this finding of acquittal in favour of the accused/respondent of this case. 39. I find no illegality and manifest wrong and/or any perverse finding, arrived at in passing the aforesaid judgment of acquittal by the Learned Trial Judge. 40. In that view of the fact, there is no reason for interference by this Court in connection with the aforesaid findings of the Trial Judge. Hence, I find no merit in the appeal and the appeal is thus dismissed. Later –– Xerox certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible.