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Jharkhand High Court · body

2008 DIGILAW 758 (JHR)

Binod Kumar Pandit v. State of Jharkhand

2008-07-18

D.G.R.PATNAIK

body2008
ORDER D.G.R. Patnaik, J.-challenge in this appeal is against the judgment and order of conviction and sentence dated 17.3.2008 passed by the 7th Additional Judicial Commissioner-cum-Special Judge, CBI, Ranchi in R.C. Case No. 14(A) of 2002(R), whereby the appellant was convicted for the offence under Section 7 of the Prevention of Corruption Act read with Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act and sentenced to imprisonment for two years for the offence under Section 7 and three years for the offence under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act besides payment of total amount of fine of Rs. 5,000/-. 2. Facts of the case in brief is that the complainant who was employed as Postman in Sub Post Office, Namkum, had applied for his transfer on 12.9.2002 on account of his personal inconveniences at his present place of posting. Earlier', on 11.9.2002 he had gone on earned leave. When he returned and wanted to resume his duty on 1.10.2002, the appellant who was then posted as Postal Assistant and his colleague S.N. Swansi, Sub-Postmaster, refused him to join duty and instead, they demanded illegal gratification of Rs. 5,000/- not only to allow him to join his duty, but also to recommend for his transfer. Unwilling to pay the bribe money, the complainant lodged a complaint before the Superintendent of Post Office on 29.11.2002 with a copy thereof to the Director-il'1-Chief, P.M.G., Bihar through registered post. On 1.11.2002 the Postmanl complainant met the accused persons at the Namkum Post Office who again repeated their alleged demand for illegal gratification of at least a sum of Rs. 900/-as initial payment and the rest after he received his salary. Thereafter, the complainant approached the Superintendent of Police, CBI by filing a complaint. On receipt of the complaint, a preliminary inquiry was conducted by the Inspector, CBI. On the basis of the verification report filed by the Inspector, a case was registered against the appellant and, Inspector Vikash Gupta was entrusted with the investigation. After the FIR was registered for the aforesaid offences vide R.C. Case No. 14(A) of 2002(R) on 2.11.2002 against both the accused persons. In course of investigation, the investigating officer chalked out a plan to trap both the accused persons red-handed. After the FIR was registered for the aforesaid offences vide R.C. Case No. 14(A) of 2002(R) on 2.11.2002 against both the accused persons. In course of investigation, the investigating officer chalked out a plan to trap both the accused persons red-handed. A trap team was constituted under the direction of D.I.G. Police, CBI, Ranchi comprising investigating officer and two other Inspectors of Police besides one Sub-Inspector and two constables. Two independent witnesses namely, Umesh 'Kumar Tripathy, Dy. Manager, Vigilance, C.C.L., Ranchi and Sri Sachidanand Prasad Sinha, S.E., Vigilance, C.C.L., Ranchi were also requisitioned through their controlling authority. Rehearsal of the plan for laying the trap was made in presence of the complainant and both the independent witnesses were acquainted with the nature of the complaint of the complainant, which was also affirmed by the complainant before them. Thereafter, the team proceeded along with the complainant and the independent witnesses to Namkum Post Office at about 1.00 P.M. on 2.11.2002. After studying typography of the area, members of the trap party positioned themselves at strategic points. As per plan, the complainant entered the Post Office and from a distance he identified both the accused persons to the witnesses. Thereafter, he approached the appellant Binod Kumar Pandit followed by the independent witness Umesh Kumar Tripathy. The complainant greeted the appellant and in response, the appellant asked as to whether the complainant had brought the money to which, the complainant replied in the affirmative. The appellant called the complainant towards the exit door and also called his colleague James Kulu to come towards the exit door. The appellant instructed the complainant to handover the money to his colleague James Kulu. Upon this, James Kulu stretched out his hand to receive the money from the complainant and in response, the complainant brought out the currency notes, which were earlier tainted with phenolphthalein powder, from his shirt pocket and placed the money on the extended right hand of James Kulu who after receiving the currency notes, counted the money with both his hands and kept the currency notes in his trouser pocket. On the money being handed over, the appellant cautioned the complainant not to reveal this to anybody. On the money being handed over, the appellant cautioned the complainant not to reveal this to anybody. The entire conversation was allegedly over heard by the shadow witness Umesh Kumar Tripathy and the handing over of money by the complainant was seen by other witnesses namely, K.K. Singh and Mahesh Kumar who were standing nearby at vantage points. On receipt of signal from the complainant, members of the trap team alongwith other independent witness namely Sachidanand Prasad Sinha, rushed immediately to the accused Binod Kumar Pandit and his colleague James Kulu. Inspector Vikas Gupta after disclosing his identity challenged both of them for having demanded and accepted bribe money of Rs. 900/-. The appellant admitted his guilt by stating that he has committed mistake. On the instruction of the Inspector, his colleague K.K. Singh caught hold of the hand and wrist of James Kulu. Both the accused persons were arrested. Chemical test was conducted by dipping the hands and trouser pocket of James Kulu. On being asked, James Kulu brought upon the tainted currency notes from his right side pocket of his trouser and handed over the same to the witness Umesh Kumar Tripathy who on being asked, counted and compared the same with the denomination of the currency notes with the denomination noted in the pre-trap memorandum and confirmed that the denomination of the currency notes seized, tallied with the denomination noted down in the pre-trap memorandum. The seized currency notes were thereafter kept in an envelope, which was sealed and signed by the members of the trap team. A recovery memorandum was prepared at the spot and signed by all the witnesses and a copy thereof was given to both the accused persons who appended their respective signatures in acknowledgment of receipt of the copy. The seized materials were thereafter forwarded to the C.S.F.L., Ranchi for examination. After obtaining report, sanction for prosecuting both the accused persons was obtained from the competent authority. After conclusion of the investigation, charge-sheet was submitted against both the accused persons recommending their trial. However, since James Kulu has been tendered his pardon, he was pardoned under Section 306 of the Cr.P.C. and trial proceeded only against the present appellant namely, Binod Kumar Pandit. After conclusion of the investigation, charge-sheet was submitted against both the accused persons recommending their trial. However, since James Kulu has been tendered his pardon, he was pardoned under Section 306 of the Cr.P.C. and trial proceeded only against the present appellant namely, Binod Kumar Pandit. The appellant denied charges and had pleaded in his defence that he was falsely implicated by the complainant on account of the fact that he had reported against the drunken behaviour and conduct of the complainant to Senior Officer of the Postal Department and the complainant had threatened him to implicate him in false cases. Altogether twelve witnesses were examined by the prosecution at the trial including the independent witnesses and the members of the trap team and the investigating officer and James Kulu. In addition to the oral evidence of the witnesses, prosecution had adduced the complaint as filed by the complainant, order of sanction for prosecution of the accused persons, leave application which the complainant had filed, the complaint submitted by the complainant to the Superintendent of Post Office, transfer petition which the complainant had submitted to his superior in office, attendance register, formal FIR and the pre-trap and post-trap memorandum. The appellant in his turn also adduced his own evidence as a witness and the copy of the complaint which he had submitted to his superior in office against the conduct of the complainant. List of witnesses examined does not however include the complainant Raghu Bhut Kumar. 4. On the basis of the evidence of the witnesses, the trial court recorded its findings that the accused Vinod Kumar Pandit had demanded and received a sum of Rs. 900/- by way of illegal gratification from the complainant for the purposes of allowing the complainant to resume his duty as well as to recommend for his transfer. On the basis of such findings, the learned trial court convicted the appellant for the offences mentioned above. 5. The appellant has assailed the impugned judgment of his conviction and sentence primarily on the ground that conviction of the appellant for the aforesaid offences is totally misconceived and is against the weight of evidence on record and that, the learned trial court has seriously erred in failing to appreciate the evidences on record in proper perspective. 5. The appellant has assailed the impugned judgment of his conviction and sentence primarily on the ground that conviction of the appellant for the aforesaid offences is totally misconceived and is against the weight of evidence on record and that, the learned trial court has seriously erred in failing to appreciate the evidences on record in proper perspective. Shri Manoj Kumar, learned counsel for the appellant, advances the following grounds:- i. The complainant had borne grudge and malice against the appellant on account of the fact that the appellant had earlier lodged a complaint to his superior in his office against the drunken behaviour and conduct of the complainant and also in respect of frequent absence of the complainant from the duty. ii. The appellant was employed as a mere Postal Assistant and had no authority either to sanction leave or to pass any order on the transfer application of the complainant, nor was he in any such position as to recommend for the transfer of the complainant from the Post Office. As such, there could be no occasion for the appellant to offer any extra official service to the complainant and to demand any illegal gratification from him. These facts have been affirmed even by the witnesses examined by the prosecution. iii. There is no consistent evidence adduced by the prosecution that the appellant had demanded and received any bribe money from the complainant. iv. Admittedly, no tainted currency notes were recovered from the personal possession of the appellant. Rather, it was recovered from the possession of the witness James Kulu. v. The entire set of witnesses examined by the prosecution are interested witnesses since they belong either to CBI or to the Postal Department itself and as such, there is no independent corroboration to the prosecution's claim that the appellant had demanded and received illegal gratification. vi. The non-examination of the complainant has caused serious prejudice to the appellant in his defence. vii. The fact that the appellant had submitted a complaint against the drunken behaviour and dereliction of duty of the complainant, is suggestive of the fact that the complainant had borne grudge and malice against the appellant. viii. Prosecution's claim that the appellant had retained the complainant's leave application and application for his transfer. is belied from the evidence of the witnesses namely, PWs 2. viii. Prosecution's claim that the appellant had retained the complainant's leave application and application for his transfer. is belied from the evidence of the witnesses namely, PWs 2. and 3 who happen to be the Assistant employed in the office of the Senior Superintendent of Post Office and the Assistant Superintendent of Post Office respectively and both of whom have affirmed that applications were duly forwarded to the concerned officer and was available in the office and the documents were obtained from the office of the Senior Superintendent of Post Office. ix. The witness Umesh Kumar Tripathy (PW-5) who had joined the trap team as an independent witness and in whose presence the alleged exchange of currency notes were made, has categorically stated that James Kulu has not stated that he had accepted the money from the complainant on the direction of the appellant. The witness has further stated that the allegation of demand of bribe was made by the complainant not only against the appellant but also against another official of the Post Office namely, S.N. Swansi. x. In absence of specific evidence that James Kulu has received the tainted currency notes from the complainant on the instruction of the appellant Vikash Kumar Pandit and considering the evidence of the witnesses that the allegation of demand of bribe money was against another official of the Post Office namely, S.N. Swansi also, it cannot be said with certainty that James Kulu had received the tainted currency notes at the behest of the appellant. 6. Shri Rajesh Kumar, learned counsel for the CBI, on the other hand, would controvert the grounds advanced on behalf of the appellant and argue that the facts and circumstances brought out in the evidence of the witnesses do confirm beyond any doubt that the appellant had demanded the bribe money for offering certain extra official favour to the complainant. The tainted currency notes were recovered from the possession of James Kulu and the chemical examination of the hands of James Kulu and trouser pocket of James Kulu did confirm that he had received the currency notes. The tainted currency notes were recovered from the possession of James Kulu and the chemical examination of the hands of James Kulu and trouser pocket of James Kulu did confirm that he had received the currency notes. Learned counsel adds that evidence of James Kulu (PW-9), who is the Postal Assistant and approver in this case, assumes significance inasmuch as, he has categorically stated that it was on the instruction of the appellant Vinod Kumar Pandit that he had received the tainted currency notes from the complainant and the CBI team had recovered the money from his' pocket. This statement of the witness was earlier recorded under Section 164 of the Cr.P.C. by a Magistrate. 7. From the evidence of the prosecution's witnesses, and the documents adduced by the prosecution in evidence, following facts emerge:- 1. That, a complaint was filed by the complainant against the present appellant and one other namely, S.N. Swansi. 2. After verification of the complaint, a trap team was constituted and in accordance with the plan chalked out by the trap team, the complainant approached the appellant at the latter's office. 3. James Kulu (PW-9) was also present alongwith the appellant at the time when the complainant had approached him. 4. The tainted currency notes were received and pocketed by James Kulu which was subsequently recoverep from his possession. 5. Complainant was not examined by the prosecution on the point of demand of bribe money by the appellant. 8. For conviction of the accused for the offence under Section 7 and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, two essential facts need to be proved. The first, that the accused, being a public servant, had demanded illegal gratification and the second, that he had received illegal gratification. The prosecution relies mainly upon the evidence of PW-5-Umesh Kumar Tripathy. As per the prosecution's case, this witness had accompanied the complainant to the Post Office and both of them had approached the appellant and this witness claims that in his presence, the appellant after exchanging formal greetings with the complainant, asked the complainant to come near the exit door and called his colleague James Kulu to the exit door. The suggestion from this statement is that the trio namely, the appellant, his colleague James Kulu and the complainant had assembled at a distance from the office table of the appellant. The suggestion from this statement is that the trio namely, the appellant, his colleague James Kulu and the complainant had assembled at a distance from the office table of the appellant. The witness however, does not claim that he did accompanied the trio to the exit door. If he had not accompanied them, the inference is that he must have remained at the office table of the appellant and in absence of any claim that he was within the proximate distance to over-hear the conversation between the appellant and the complainant, it cannot be inferred that he had heard, in particular, the conversation allegedly exchanged between the appellant and the complainant. The inference therefore is that he could at best see what had happened at the exit door and no more. If, on the other hand, suggestion of this witness is that he had also followed the complainant to the exit door, it is highly improbable and not amenable to reason to believe that the appellant would demand bribe money from the complainant in presence of a total stranger. The admission of this witness that James Kulu has not stated before him to the investigating officer that he had received the tainted currency notes from the com- plain ant on the instruction of the appellant, assumes significance. Other witness on whom the prosecution has relied is PW-9 James Kulu. This witness was initially an accused in the case and was arrested and forwarded to custody. Later on, he was made an approver and a witness for the prosecution. From the facts and circumstances of the case, as admitted, tainted currency notes were recovered from his possession and under such circumstances, he had his genuine apprehension of his being convicted on corruption charges. The possibility of his becoming an approver on the temptation given by the prosecuting Agency that he would not be prosecuted is obvious. His evidence, therefore, cannot be accepted at its face value, and has to be read along with other circumstances. In his deposition, he has sought to explain that though tainted currency notes were recovered from his possession, but he had not demanded the money, nor did he accept the same on his own account or for his personal gain and that, he had received the money merely on the instruction of the appellant. In his deposition, he has sought to explain that though tainted currency notes were recovered from his possession, but he had not demanded the money, nor did he accept the same on his own account or for his personal gain and that, he had received the money merely on the instruction of the appellant. It is apparent from his statement that he knew that the money was illegal gratification and he had received the tainted currency notes even with such knowledge. This makes him an accomplice to the crime and unless corroboration of his testimony is not available from reliable evidence, it cannot be accepted against the appellant. 9. The prosecution's case that the appellant had demanded illegal .gratification from the complainant for extending extra official favour has to be seen in "the light of the fact as to whether the appellant in his official capacity, was in a position to extend any such favour as claimed by the complainant. From the evidence of the witness who are Senior Officials of the Postal Department, it transpires that the appellant was only a petty officer and was neither the Disciplinary Authority over the complainant, nor did he have any authority either to sanction leave of the complainant or grant orders for transfer or even to recommend for transfer of the complainant. It also transpires that the leave application and transfer application submitted by the complainant were not in possession of the appellant on the date when the raid by the trap team was conducted. Rather, the applications were already received in the office of the Super intendent of Post Office to whom applications were addressed. If this was so, then it is highly improbable that the appellant would offer to extend any extra official favour to the complainant and in return, would demand any illegal gratification from the complainant. It also does not appeal to reason as to why the complainant, who knew that the appellant in his official capacity, had no authority whatsoever to extend any extra official favour, would expect any favour from the appellant. It also does not appeal to reason as to why the complainant, who knew that the appellant in his official capacity, had no authority whatsoever to extend any extra official favour, would expect any favour from the appellant. When these circumstances are seen in conjunction with the letter of complaint, which has been proved by the defence in evidence, against the conduct and mis-behaviour of the complainant, submitted by the appellant to his superior in his office, it would indicate that there was no cordial relation between the appellant and the complainant on the basis of which, the appellant could repose confidence and trust upon the complainant in the matter of demanding and accepting illegal gratification. The appellant in his defence has led sufficient evidence to suggest that there was reason for the complainant to bear grudge and malice against the appellant for the complaint which the appellant had submitted against the complainant to the superior officers. The appellant had certainly a right in his defence to cross-examine the complainant on these issues for proving his innocence. The non-examination of the complainant by the prosecution has certainly caused serious prejudice to the appellant in his defence. 10. On a totality of the circumstances stated above, the evidence adduced by the prosecution leave ample doubt as to whether the appellant had ever demanded and received illegal gratification from the complainant. As rightly pointed out by the learned counsel to the appellant, the trial court has not considered the controversial circumstances as appearing in the prosecution's evidence and has arrived at its finding of guilt against the appellant without appreciation of evidence on record. 11: For the above reasons, I find merit in this appeal. Accordingly, this appeal is allowed, the impugned judgment of conviction and sentence, as passed by the trial court against the appellant, is hereby set aside. The appellant is acquitted from the charges of the offences for which he was charged. Since the appellant is on bail, he is discharged from the liability of his bail bond.