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2006 DIGILAW 1342 (JHR)

Ashok Kumar Tulal v. State Of Jharkhand (Cbi)

2006-11-21

DABBIRU GANESHRAO PATNAIK

body2006
JUDGMENT D.G.R. Patnaik, J. 1. The appellant has challenged the order of conviction and sentence dated 24.12.1999 passed by Sri P.K. Sinha, 1st Additional Judicial Commissioner cum Special Judge (CBI), Ranchi in RC Case No. 9 of 1992 (R) whereby the appellant was convicted for an offence under Section 7 of the Prevention of Corruption Act, 1988 and also for offences under Section 13(2) and 13(i)(d) of the said Act and sentenced to undergo rigorous imprisonment for two years besides payment of fine of rupees two thousand. 2. Briefly stated, the prosecution case is that the appellant at the relevant time was employed as an Assistant in Ranchi Branch No. II of the National Insurance Company Limited. Raghunath Singh (PW 6) had submitted his motor insurance claim for compensation in respect of his truck which had suffered accident on 22.3.1990. The appellant was required to process the claim application. The claim remained pending for more that two years and no amount was paid to the complainant despite the fact that the surveyor appointed by the insurance company had conducted survey and submitted his report recommending payment of compensation. After about two years, the complainant received a letter dated 20.2.1992 (Ext. A) from the Branch Manager requiring the complainant to submit weight challan in respect of the goods which were loaded on the truck at the time of the accident. The complainant submitted his reply on the following day stating that the entire documents which were in truck at the time of the accident, were lost. However, compensation was fixed and sanctioned after some deduction towards non-submission of the weight challan and the file was sent back to the appellant. It was then that the appellant had demanded illegal gratification of rupees two thousand from the complainant. Not willing to accede to the demand, the complainant filed a written complaint (Ext. 2) to the Superintendent of Police (CBI), Ranchi on 22.4.1992. The complaint was referred to PW 7, Inspector (CBI) to conduct a verification for ascertaining the truth of the complainant. PW 7 submitted his verification report (Ext. 8) regarding his finding that the allegation appeared to be correct whereupon, on the instruction of the Superintendent of Police (CBI), the case was registered against the appellant vide FIR (Ext. 9) for offences under Sections 7, 13(2) and 13(i)(d) of the Prevention of Corruption Act, 1988. PW 7 submitted his verification report (Ext. 8) regarding his finding that the allegation appeared to be correct whereupon, on the instruction of the Superintendent of Police (CBI), the case was registered against the appellant vide FIR (Ext. 9) for offences under Sections 7, 13(2) and 13(i)(d) of the Prevention of Corruption Act, 1988. On taking up the investigation entrusted to PW 7, he prepared an elaborate plan to lay a trap. A team was constituted comprising of PW 7, two other inspectors; and a head constable of the CBI and two independent witnesses (PWs 3 and 5) who were also called to the office of the Superintendent of Police (CBI), to witness the rehearsal. The procedure for laying the trap and use of chemical powder was explained to the members of the team by practical demonstration. A sum of rupees two thousand by way of twenty currency notes each of 100 denomination, was deposited by the complainant. The numbers of the currency notes were noted down in the pre-trap memorandum (Ext. 4) and the currency notes were smeared with phenolphthalein powder and were handed over to the complainant (PW 6) for the purpose of giving it to the appellant if he demanded the money. According to the arranged plan, the complainant accompanied by two witnesses (PWs 3 and 5) went to the office of the accused. While the complainant along with PW 3 approached the appellant at his office, the other witnesses positioned themselves within close proximity to see and overhear the conversation between the complainant and the appellant. After obtaining signatures of the complainant on payment voucher at that time, the appellant demanded money in response to which, the complainant (PW 6) brought out the chemically tainted currency notes and handed over the same to the appellant who, after receiving the same by his right hand, opened the drawer of his table and kept the currency notes in it. This was seen and witnessed by PWs 3 and 5. On being signaled by the complainant, the other members of the trap party closed upon the appellant and the currency notes found in the drawer of the appellant were taken out by PW 3. This was seen and witnessed by PWs 3 and 5. On being signaled by the complainant, the other members of the trap party closed upon the appellant and the currency notes found in the drawer of the appellant were taken out by PW 3. A solution of sodium carbonate was prepared in which the right hand and fingers of the appellant was dipped and on Finding that the solution turned pink, the solution was sealed and preserved in the presence of the independent witnesses. On comparing the number of the seized currency notes with the numbers earlier noted in the pre-trap memorandum (Ext. 4), PWs 3 and 5 found the same to be tallying. The notes were kept thereafter in an envelope and sealed and signed by the witnesses. After preparation of the recovery memo, the sodium carbonate solution was forwarded to the CFSL for chemical analysis. The report obtained from the CFSL confirmed that the solution contained phenolphthalein and sodium carbonate. Sanction for prosecution of the appellant was obtained vide Ext. 1. 3. Altogether seven witnesses were examined by the prosecution at the trial including the complainant (PW 6) and the Investigating Officer D.B. Singh (PW 7). The other witness include the persons in whose presence the alleged bribe money was recovered from the possession of the appellant. 4. The learned trial Court placed reliance on the evidence of the complainant as also that of the witnesses to the recovery of the tainted notes from the possession of the appellant and that of the Investigating Officer and recorded its findings of guilt against the appellant for the aforesaid offence and accordingly convicted him. 5. Assailing the impugned judgment of conviction, learned Counsel for the appellant has strenuously emphasized mainly on two grounds, first being that there is no finding recorded by the trial Court as to whether there was any reasonable basis or occasion for the accused to demand any illegal gratification whatsoever from the complainant. Learned Counsel explains that the appellant being merely an Assistant, was not the final authority to sanction payment of compensation amount and though the appellant had promptly processed and forwarded the claim application of the complainant, the delay in sanction of the amount was because of the fact that the complainant had not deposited the weight challan along with his claim application. The surveyors report (Ext. The surveyors report (Ext. 6) had clearly indicated that the weight challan was not produced by the complainant, nor was any disclosure made by the complainant in respect of the load and the nature of the goods carried on the truck at the time of the road accident. Arguing further, learned Counsel submits that on the alleged date of occurrence, the appellant had completed necessary formalities to obtain signature of the complainant on the payment voucher, so that the same may be forwarded to the appropriate authority for releasing the amount of compensation. The other ground equally emphasized by the learned Counsel is that no finding was recorded by the trial Court, as to whether there was any mala fide intention on the part of the complainant himself to unduly harass the appellant. Referring to the evidence of the complainant (PW 6), learned Counsel points out that the complainant has acknowledged that the Investigating Officer (PW 7) was his close relative and therefore the entire proceeding commencing from the verification followed by investigation of the complainants allegation against the accused by PW 7, becomes tainted and suspicious giving a reasonable ground to harbour the belief that the appellant was falsely implicated. It is submitted that the prosecution has not examined any independent witness and PWs 3 and 5 cannot be said to independent witnesses, since they had constituted the trap team. Learned counsel has also tried to create a dent in the prosecution case referring to a few contradictions in the evidences of PWs 3, 5 and 6 in respect of preparation of the trap memorandum and also on the ground that though the witnesses had claimed that the envelope in which seized currency notes were allegedly kept and sealed at the place of alleged recovery, yet the seal was opened at the office of the Investigating Officer itself instead of retaining the seal intact to be opened only in presence of the trial Court. 6. 6. Learned Counsel for the CBI, on the other hand, while controverting the grounds advanced by the appellant, submits that from the evidence of the witnesses, it would be abundantly clear that the allegation of the complainant made to the Superintendent of Police (CBI) was subjected to verification and only on being satisfied, prima facie, arrangement for laying pre-trap was made and the complainant and the other trap witnesses were explained and rehearsal was conducted whereafter the appellant was approached by the complainant with the tainted currency notes. Learned Counsel adds that the statement of the seizure witnesses who were also the decoy witnesses, confirm that at the time when the tainted currency notes were handed over to the accused-appellant by the complainant they were present within a visible distance and on receipt of signal from the complainant, they had immediately closed upon the accused who by then, had kept the currency notes in his table drawer from where the notes were taken out by PW 3 and in presence of the witnesses, the number of recovered currency notes were tallied with the earlier recording and the hands of the appellant were tested chemically which according to the witnesses had tested positive. Learned Counsel explains further that the complainant had put up his claim on 30.3.1990 which fact is confirmed by the manager of the insurance company (PW 4) and for almost two years, the claim amount was not paid to him and after keeping the same pending for about two years, an objection was raised for the first time in the month of February, 1992 on the ground that weight challan was not produced by the complainant. Learned Counsel adds further that the prosecution has sufficiently proved and established that the tainted currency notes were recovered from the possession of the accused-appellant and the presumption would be that the appellant received the money without any legal authority. Refuting the contention of the learned Counsel for the appellant that the trap witnesses are not independent witnesses, learned Counsel for the respondent submits that this matter has been set at rest by several judicial pronouncements of the Apex Court that where evidence do not indicate that the witnesses have animosity towards the accused, they cannot be regarded as interested witnesses and even if there is any minor discrepancy, the same does not render the evidence of such witnesses as unreliable. 7. 7. The grounds advanced on behalf of the appellant do not appear to be convincing. It is not disputed that the appellant was assigned with the work of processing the claim application of the complainant. The surveyors report (Ext. 6) had recommended payment of certain amount by way of compensation to the complainant. Non-submission of the load challan, as per the evidence on record, does not deprive the insured from claiming compensation in respect of the damages to his insured vehicle involved in the accident. It may at best entitle the insurance company to deduct certain amount from the payable amount of compensation. Yet, the claim had remained lingering for more than two years. The Manager of the insurance company who was the authority to sanction payment, appears to have depended on the notings of the appellant and it was after two years that a demand was made afresh to the complainant to deposit/produce the weight challan. These are circumstances which clearly indicate that the appellant was instrumental in delaying the processing of the claim application for final sanction for payment of the compensation amount suggesting thereby his mala fide motives. The allegation of the complainant (PW 6) that the appellant had demanded illegal gratification, was verified by PW 7. For the purpose of verification the verifying officer was not called upon to make a detailed investigation or inquiry. The verifying officer was required only to find out whether from the attending facts and circumstances of the case, there was prima facie element of truth in the allegation made by the complainant against the accused. 8. The contention of the appellant that since the complainant and the Investigating Officer (PW 7) are close relatives, the entire proceeding commencing from the verification of the complaint and investigation conducted by PW 7 is tainted, appears to be misconceived. No such material has been elicited from the statements of PW 6 or PW 7 in course of their respective cross- examination to support the aforesaid view of the appellant. Likewise, the contention of the appellant that PWs 3 and 5 cannot be considered as independent witnesses since they had constituted the trap team is also misconceived. There is no evidence that either PW 3 or PW 5 was under the control or authority of the CBI. They cannot therefore be branded as interested or non- independent witnesses. Likewise, the contention of the appellant that PWs 3 and 5 cannot be considered as independent witnesses since they had constituted the trap team is also misconceived. There is no evidence that either PW 3 or PW 5 was under the control or authority of the CBI. They cannot therefore be branded as interested or non- independent witnesses. No evidence has been brought on record by the defence that any of these witnesses had any animosity or personal grudge against the appellant. Mere acquaintance with police officers would not make a witness non-independent. The evidence of the complainant (PW 6) finds support from the evidence of PWs 3 and 5 in particular who, by their respective affirmation, have confirmed that in response to the demand made by the appellant, the complainant had handed over the tainted currency notes to the appellant who had accepted the same and kept in his table drawer from where it was recovered and the numbers of currency notes tallied with the numbers earlier noted in the pre-trap memorandum. The evidence on the point of demand and acceptance of illegal gratification by the appellant is clear and consistent. Though PW 5 by his evidence creates confusion as to the place where the numbers of the recovered currency notes were tallied with the notings in the pre-trap memorandum, the evidence of the remaining witnesses consistently declare that the comparison of the number were made at the place of recovery and thereafter the notes were kept and sealed in the envelope at the same place. 9. The recovery of tainted currency notes from the drawer of the appellant and the fact that when the hand of the appellant was dipped in sodium carbonate solution, it had turned pink, are clear and positive indications that the appellant had accepted the tainted currency notes which he had no authority to receive from the complainant. The prosecution having sufficiently established that the appellant was found in possession of the currency notes smeared with phenolphthalein, the reasonable presumption would be that the appellant had received the money from the complainant (PW 6) not by way of legal remuneration, but by way of illegal gratification as a motive or reward for his service. It is for the appellant to rebut the presumption and, in the instant case, the appellant has failed to do so. 10. For the reasons aforesaid. It is for the appellant to rebut the presumption and, in the instant case, the appellant has failed to do so. 10. For the reasons aforesaid. I do not find any illegality or impropriety in the findings of the trial Court or in the reasons assigned for such findings. This appeal is devoid of any merit. Accordingly, the appeal is dismissed and the conviction and sentence imposed by the trial Court on the appellant is hereby sustained.