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2008 DIGILAW 203 (JHR)

State Of Jharkhand v. Swaminath Prasad

2008-02-20

D.G.R.PATNAIK

body2008
JUDGMENT D.G.R. Patnaik, J. 1. This appeal is directed against the judgment and order of conviction and sentence dated 20.1.1995 passed by the Special Judge, CBI in RC 12(A) 91R whereby the learned trial Court had acquitted the respondent from the charge under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. 2. The gist of the charge is that in his capacity as a public servant employed in the Town Administration Department. Estate Section of the Bokaro Steel Plant at Bokaro. the accused/respondent had. on 11.6.1991, demanded and received rupees fifty as illegal gratification from the complainant. A Kumar, an employee of the Bokaro Steel Plant, and has thereby obtained for himself pecuniary benefit by illegal means. 3. One day earlier i.e. on 10.6.1991. the complainant had lodged a complaint before the vigilance officer apprising him of the demand made by the accused for illegal gratification for supplying him two ceiling fans from the stores department. The complainant was asked to visit the office of the Vigilance Officer with a sum of rupees fifty. On being informed by the Vigilance Officer, the CBI team came to the office of Bokaro Vigilance Officer. Two independent witnesses were called for from the office of the vigilance officer before whom a pre-trap arrangement was chalked out. Currency notes of rupees fifty were smeared with phenothelene and handed over to the complainant directing him to give the tainted currency note(s) to the accused only on demand. Witness Raghu Nath Tiwary (PW 2) was asked to accompany the complainant in disguise. The trap team arrived at the office of the accused at 12.15 p.m. on 11.6.1991. While others were at strategic distance, the complainant accompanied by R.N. Tiwary, approached the accused and introduced R.N. Tiwary as his relative. The complainant requested the accused for replacement of the old fans with new fans upon which the accused inquired as to whether the complainant had brought rupees fifty. The accused told the complainant to hand over the money to Lalji Mahato (PW 5) who was present in the same room, but on refusal by Lalji Mahto to receive the money, the accused himself received the currency notes from the complainant, counted it with his hands and thereafter kept the currency notes beneath the stock register lying on the table. The old fans brought by the complainant for replacement were received and kept by Lalji Mahato and he issued a receiving slip to the complainant. On signal given by Raghunath Tiwary, the Vigilance Inspector J. Choudhury (PW 3) along with the raiding party entered the room of the accused and after disclosing their identity, they caught him. The fingers of the left and right hands of the accused were dipped in sodium carbonate solution prepared in water separately. The solution tuned pink. The solution was poured in two separate glasses, sealed and signed by the witnesses. The tainted currency notes were recovered from beneath the register kept on the table of the accused and after recovery of the currency notes, they were sealed and signed by the Vigilance Inspector and the witnesses. The stock registers were also seized. Thereafter, the accused was taken to the office of the vigilance officer where a detailed recovery memo was prepared, signed by the officer making seizure and also by the witnesses and the accused and a copy thereof was handed over to the accused. 4. The trial Court considered the evidence on record and observed that there were several inconsistencies in the evidences of witnesses on the point of demand by the accused for illegal gratification and also on the point of recovery of the tainted currency notes from his possession. The points on the basis of which the trial Court recorded its inference in favour of the accused are: (i) that the written report claimed to have been submitted by the complainant to the vigilance officer was not adduced in evidence to prove the contents thereof: (ii) no independent witness was examined in support of the complainants claim that the accused had demanded illegal gratification/ money from him firstly on 8.6.1991 and thereafter on 11.6.1991. (iii) that there could be no occasion for the accused to demand illegal gratification for replacement of new fans since there was no such provision for replacement of old fans in place of new ones. (iv) that the testimony of the witnesses regarding recovery of the currency notes from the complainant is also inconsistent and not supported by Lalji Mahto PW 5: (v) that the witnesses constituted the trap party and therefore they cannot be held to be independent witnesses and therefore their testimony cannot be accepted as reliable. 5. (iv) that the testimony of the witnesses regarding recovery of the currency notes from the complainant is also inconsistent and not supported by Lalji Mahto PW 5: (v) that the witnesses constituted the trap party and therefore they cannot be held to be independent witnesses and therefore their testimony cannot be accepted as reliable. 5. The findings of the trial Court and the judgment of acquittal of the accused has been challenged in this appeal primarily on the ground that the learned trial Court has seriously erred in failing to appreciate the evidence on record in proper perspective and has also failed to take note that the evidence adduced and brought on record by the prosecution leads to the presumption that the accused had received the tainted currency notes and therefore it was for the accused to explain the reason and circumstances in which he had received the money. Sri Rajesh Kumar appearing for the CBI would explain that the trial Court has erred in ignoring the fact that reliable evidence has been adduced by the prosecution to confirm that the accused did receive the tainted currency notes as indicated by the sodium carbonate solution test. Learned Counsel argues further that the trial Court has erred also in treating PW 2 as an interested witness merely on the ground that he is a trap witness and has wrongly discarded his testimony. 6. Sri A.K. Sahani, learned Counsel for the respondent/accused supporting the findings and judgment of acquittal of the trial Court, explains that as rightly observed by the trial Court, there was, in fact, no occasion for the accused to demand any illegal gratification from the complainant in view of the fact that on the point of replacement of old fans an altercation, which was witnessed by several witnesses, had occurred between the complainant and the accused two days prior to the alleged date of occurrence. In this background of hostility, it is highly improbable that the accused would demand and receive any illegal gratification from the complainant. Learned Counsel adds further that on the point of demand of money, except the statement of the complainant, there is no corroborative evidence to confirm the same. In this background of hostility, it is highly improbable that the accused would demand and receive any illegal gratification from the complainant. Learned Counsel adds further that on the point of demand of money, except the statement of the complainant, there is no corroborative evidence to confirm the same. Learned Counsel explains further that even on the point of alleged recovery of the currency notes, the trial Court has rightly observed that the currency notes were not recovered from the personal possession of the accused and neither did the accused bring out the currency notes from his possession, nor deliver the currency notes from his possession to the vigilance inspector. Learned Counsel further explains that the entire drama was enacted with the aid of interested persons in such a manner so as to falsely implicate the accused. In support of his argument, learned Counsel would cite the judgments of Supreme Court in the case of Ganpati Sanya v. State of Karnataka 2007 (4) East Cr C 211 (SC) and the judgment of the Allahabad High Court in the case of Har Bharosey Lal v. State of U.P. 1988 Cr LJ 1122. 7. In the light of the above mentioned rival arguments advanced on behalf of the parties, the judgment of the trial Court needs to be assessed. 8. Two circumstances appear to have influenced the mind of the trial Court. Firstly, there could be no occasion for the accused to demand the money from the complainant for replacement of old fans by new ones and the second being the Courts belief that the trap witnesses not being independent witness, their testimony does not lend independent corroboration to the testimony of the complainant. 9. It is now well settled by a catena of decisions of the Supreme Court that in a case involving charges under the Prevention of Corruption Act, the testimony of the trap witnesses cannot be discarded as evidence of interested witness merely because they happen to be witnesses of the trap party. They can be termed as interested witnesses only if it is borne out from their testimony that they are highly interested in securing conviction of the accused. 10. In the present case, prosecution has essentially relied upon the evidence of PW 2 who is an employee working in the Accounts Section of the vigilance officer. They can be termed as interested witnesses only if it is borne out from their testimony that they are highly interested in securing conviction of the accused. 10. In the present case, prosecution has essentially relied upon the evidence of PW 2 who is an employee working in the Accounts Section of the vigilance officer. There is nothing in his evidence to suggest that he was or could be in any way interested to secure conviction of the accused. From the evidence of the complainant (PW 4) supported by PW 2 and PW 3. the facts which emerge are (i) that the tainted currency notes were recovered from beneath the register kept on the table of the accused and (ii) that the hands of the accused after recovery of the tainted currency notes were dipped in the chemical solution and the test indicated presence of phenolphthalein powder on his hands. Some minor discrepancy regarding the person who had actually retrieved the currency notes from the table, does not alter the fact that tainted currency notes were found beneath the register on the table of the accused. The significant aspect appearing in the evidence, which the trial Court has ignored, is that when fingers of both hands of the accused were dipped in the sodium carbonate solution in presence of witnesses, it turned pink confirming thereby that fingers of the accused did absorb the phenolphthalein which was earlier smeared on the currency notes. The evidence of PW 4 is corroborated on this issue by the evidence of other witnesses including PW 2 and PW 3. The evidence of the complainant in this regard is that after receiving the currency notes, the accused counted the same with his hands and kept them under the register on the table. This part of the evidence of the complainant finds corroboration from the evidence of PW 2 and other witnesses. The inference from such evidence is that the accused did receive the tainted notes from the complainant. It was thereafter for the accused to explain the circumstance in which he received the currency notes from the complainant and in absence of any reasonable explanation, the presumption is that he had received the money by way of illegal gratification. The inference from such evidence is that the accused did receive the tainted notes from the complainant. It was thereafter for the accused to explain the circumstance in which he received the currency notes from the complainant and in absence of any reasonable explanation, the presumption is that he had received the money by way of illegal gratification. This incriminating evidence against the accused was put to him in his examination under Section 313, Cr PC and an opportunity was given to him to explain the circumstances, but he had not offered any reasonable explanation whatsoever. Even if the testimony of the trap witnesses are read with certain reservation, the fact that the accused received the tainted notes stands confirmed. 11. In the case of B. Noha v. State of Kerala and Anr. reported in 2006 (12) SCC 277 : 2007 (1) East Cr C 155 (SC), the Supreme Court has observed that "When it is proved that there was voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be., deduced from the facts and circumstances of the case obtained in a particular case." The judgments cited by the learned Counsel for the respondent do not offer any help to the respondent in the present case. In the case of Ganpati Sanya (supra) currency notes which were though recovered from the drawer of the table belonging to the accused, but the notes were not touched by him and therefore the scope for a possibility that the currency notes may have been surreptitiously put on the table by some person without knowledge of the accused. Similar is the fact in the case of Harbharosey Lal (supra). In the instant case, on the other hand, there appears enough evidence brought on record by the prosecution to prove that the accused had received the money from the complainant given to him pursuant to his demand and to which he was not lawfully entitled The evidences are sufficient to prove the charges both for the offence under Section 7 as well as the offence under Section 13(2) of the Prevention of Corruption Act, 1988. The trial Court has apparently failed to appreciate the evidence in proper perspective and its inding is therefore vitiated. 12. In the result, this appeal is allowed. The trial Court has apparently failed to appreciate the evidence in proper perspective and its inding is therefore vitiated. 12. In the result, this appeal is allowed. The impugned judgment of acquittal passed by the learned trial Court is hereby set aside and the accused/respondent is convicted for the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to undergo imprisonment for six months. He is also convicted for the offence under Section 13(2) of the Prevention of Corruption Act, 1988 and is sentenced to undergo imprisonment for a period of one year. Both the sentences shall run concurrently. The respondents bail is cancelled and he is directed to surrender himself before the trial Court to undergo the sentence. The trial Court is directed to take necessary steps to secure the attendance of the respondent.