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2007 DIGILAW 74 (JHR)

Kamal Kishore Prasad v. State of Jharkhand

2007-02-07

DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J 1. Sole appellant Kamal Kishore Prasad stands convicted for the offence punishable under Section 161 of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. 1947 and sentenced to serve rigorous imprisonment for one year and fine of Rs. 2000/-, in default of payment of the said fine to further undergo simple imprisonment for three months respectively , by the 7th Additional Judicial Commissioner-cum-Special Judge (Vigilance), Ranchi in Sessions Code No. 2 of 1984. 2. Brief facts leading to this appeal are that the appellant was employed as Accountant in Bihar State Electricity Board. Ranchi on 27.11.1984. During this period, one Md. Shamim Ahmad had performed some work as contractor in connection with rural electrification. As the work allotted to this contractor could not be completed in stipulated period it resulted in withholding of his payments. As per prosecution case, Md. Shamim Ahmad applied for extension of time and the Executive Engineer of Bihar State Electricity Board extended the period after which he applied for payment of due bills. The appellant as the Accountant of the office concerned was delaying passing of the bills and demanded Rs. 100/- by way of bribe for processing the same. The matter was reported to the Office of Deputy Superintendent of Police, Cabinet, Vigilance. Ranchi in writing and the matter was further enquired by P.W. 2 Mahadeo Ghosh. When the Department got satisfied, finally a raid was organized to trap the appellant at the time of accepting the bribe. Accordingly, a raiding team was constituted and formalities of demonstration were also made. Finally on 27.11.1984, the appellant was approached by Md. Shamim Ahmad and he was arrested while accepting the said bribe of Rs. 100/- in currency note by raiding team. The whole process was completed in presence of witnesses examined during trial. The appellant was taken into custody and produced before the Vigilance Court. Ultimately, trial was initiated after obtaining sanction for prosecution. 3. The appellant has pleaded innocence and explained the presence of tainted currency note being accepted by him as Chanda for Chitragupta Puja. The whole process was completed in presence of witnesses examined during trial. The appellant was taken into custody and produced before the Vigilance Court. Ultimately, trial was initiated after obtaining sanction for prosecution. 3. The appellant has pleaded innocence and explained the presence of tainted currency note being accepted by him as Chanda for Chitragupta Puja. However, the learned trial Court did not accept this plea and relying upon the evidences produced by the prosecution found and held him guilty for the offences under Section 161 of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act to sentence him as aforesaid. 4. The present appeal has been preferred on the grounds that the learned trial Court has failed to appreciate the defence taken by the appellant. It is also asserted that the demand of money was not proved and there was no occasion for demanding the money for passing of any bill. It is also asserted that the learned trial Court has not scrutinized properly the receipt issued for accepting the Chanda by the appellant brought on record by the defence. It has also been asserted that complainant Md. Shamim Ahmad as P.W. 7 has failed to disclose the number of currency notes and the amount of bill pending at that time before the trial Court. It was surprising that even the date of occurrence could be disclosed. Learned Counsel for the appellant further pointed out that the circumstances in which the appellant has been trapped further creates doubt where P.W. 4 and P.W. 8 contradicted each other on material points. Learned Counsel further pointed out that the independent witnesses have not supported the prosecution version and the seizure of the tainted money itself become doubtful. My attention was drawn towards the evidence of D.W.1 and D.W.2 supporting the defence taken by the appellant. In the alternative, learned Counsel for the appellant pleaded that the appellant has suffered a lot, having faced rigours of trial right from November 1984 and has lost his job as well as now aged about 75 years, therefore, a lenient view may be taken. 5. I have anxiously considered the points raised by the learned Counsel for the appellant. Certain facts are relevant for considering the prosecution case and defence. P.W. 7 Md. 5. I have anxiously considered the points raised by the learned Counsel for the appellant. Certain facts are relevant for considering the prosecution case and defence. P.W. 7 Md. Shamim Ahmad has filed a petition before the Superintendent of Police Cabinet (Vigilance), Ranchi vide Ext. 4 dated 20.10.1984 that the appellant as Accountant was demanding Rs. 100/- to process the pending bill. P.W. 2 Mahadeo Ghose. Inspector (Vigilance) alter verification reported to his superior Officers vide Ext. 5 on 19.11.1984 that the complaint was correct. The Vigilance Department vide Ext. 5/2 decided to trap the appellant. The witnesses examined during trial Court have supported the fact that when trap was led, the appellant was seen by them accepting a currency note and the currency note-bearing No. JFN528742X was recovered from the upper pocket of blushirt worn by the appellant vide Ext.3. This seizure list further contents signature of the appellant as Ext. 3/1. This has further been supported by memo of seizure vide Ext. 6 series. In this context, the explanation submitted by the appellant that the said money was received by him as against Chanda for Chitragupta Puja. Therefore, the presence of Rs. 100/- in currency note on the person of the appellant on 27.11.1984 is not disputed, rather, accepted by the appellant once the presence of tainted currency note has been accepted, it was for him to explain. The explanation brought on record that he received it by way of Chanda for Chitragupta Puja has been discussed by the trial Court at length. Surprisingly enough, the appellant while being examined under Section 313 of the Code of Criminal Procedure did not assert that the said amount was accepted by him as Chanda for Chitragupta Puja. D.W. 1 and D.W. 2 have tried to introduce this fact that on the date of occurrence P.W. 7 arrived and handed over the said money to the appellant showing that kindly accept the money for Puja. According to them, when the appellant was trying to get the currency not broken to return Rs. 49/- to him, he was trapped. The learned trial Court discussed all things vide paragraphs 10 and 11 at page-13. I do not find any reason to disagree with the view taken by the learned trial Court. 6. I have gone into the evidence of witnesses examined during trial by the prosecution. 49/- to him, he was trapped. The learned trial Court discussed all things vide paragraphs 10 and 11 at page-13. I do not find any reason to disagree with the view taken by the learned trial Court. 6. I have gone into the evidence of witnesses examined during trial by the prosecution. They have consistently supported the factum of recovery of Rs. 100/-from the pocket of the appellant. The explanation submitted the appellant to accept the said amount by way of Chanda has rightly been not accepted by the trial Court. The witnesses examined by the prosecution goes to prove beyond doubts that the said money when recovered tallied with the number of the currency note handed over to P.W. 7 by the Vigilance Department in presence of other witnesses. It further appears that when the seizure list was prepared the witnesses have singed along with the appellant. Two of the seizure list witnesses said to be the independent witnesses have resiled from some aspects of the seizure. However, this does not affect the prosecution case as the appellant himself has admitted recovery of currency note but in different manner. 7. After going through the materials on record, I find that the prosecution has been able to prove the charge that appellant Kamal Kishore Prasad has accepted Rs. 100/- from the complainant (P.W.7) in the afternoon of 27.11.1984 in presence of witnesses. I find and hold that the explanation given by the appellant that this amount was accepted by him by way of Chanda for Chitragupta Puja is afterthought and not tenable. Accordingly, the conviction of the appellant deserves to be affirmed. 8. At this stage, the learned Counsel for the appellant submitted that the appellant having faced the rigorous of trial right from November 1984 has been punished sufficiently during this period. It was also submitted that he retired from services in the year 1993 and thereafter payments due to him has been withheld for more than twelve years. As such, a lenient view may be taken. Learned Counsel further cited two decisions in the case of P.N. Jha and Anr. v. State of Bihar 2000 (1) ECC 367 and J.M. Joseph v. State of Kerala in which their Lordships have been pleaded to modify the sentence to period already undergone due to lapse of time. As such, a lenient view may be taken. Learned Counsel further cited two decisions in the case of P.N. Jha and Anr. v. State of Bihar 2000 (1) ECC 367 and J.M. Joseph v. State of Kerala in which their Lordships have been pleaded to modify the sentence to period already undergone due to lapse of time. In both the decisions, their Lordships have been pleased to uphold the conviction and reduce sentence keeping in view the age of the appellant as well as the period for which the appellant has to face trial and appeal. The substantive sentence of imprisonment has been modified in both the cases to period already undergone. In both cases, time consumed during prosecution and appeal was about sixteen years. In the present facts, the appellant has faced the trial or nearly nineteen years and thereafter the appeal remained pending for more than three years. As such, the appellant has faced the rigorous of trial for nearly twenty-two years. It is also apparent from the records that the appellant has remained in custody from 27.11.1984 to 4.1.1985 more than a month. The learned A.P.P. does not object to this suggestion. 9. Having regard to the facts and circumstances mentioned above, the conviction of the appellant is confirmed with the sentence passed against the appellant which is modified to the period already undergone. However, he is directed. to deposit the amount the fine imposed against him by the trial Court within a month, failing which he will have to serve the sentence of simple imprisonment for three months. Accordingly, the appeal stands dismissed with modification of sentence. Appeal dismissed.