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2010 DIGILAW 1037 (RAJ)

RAMESH PUROHIT v. STATE OF RAJASTHAN

2010-05-14

DEO NARAYAN THANVI

body2010
THANVI,J. ( 1 ) THIS appeal is directed against the judgment of the learned Special Judge, Anti Corruption Cases, Jodhpur dt. 11. 4. 07, whereby he convicted the accused appellant Ramesh Purohit for the offences u/ss. 7 and 13 (1) (d) (2) of the Prevention of Corruption Act, 1988, hereinafter referred to as "the Act of 1988" and sentenced him to undergo one year's R. I. and a fine of Rs. 1000/- and in default, to further undergo three months' S. I. for the offence u/s. 7 and two years R. I. and fine of Rs. 1,000/- and in default, to further undergo three months' S. I. for the offence u/s. 13 (l) (d) (2) of the Act of 1988 but however acquitted co accused Rajendra Singh for the same charge. Both the accused were acquitted u/s. 120b IPC. ( 2 ) FACTS leading to this appeal are that one complaint Ex. P. 14 was lodged by Sugna Ram Patel,sarpanch, Gram Panchayat,patel Nagar, Bilara before the Addl. Superintendent of Police, Anti Corruption Bureau, Jodhpur on 9. 11. 96 that in the year 1996-97, the construction work of Panchayat Bhawan was done under the famine relief work and the total cost of the work was Rs. 3,20,000/-, out of which a sum of Rs. 78,000/- was outstanding. One day prior to lodging of the FIR, he went to Panchayat Samiti, Bilara, where he made a request to the present appellant Ramesh Purohit, BDO and Rajendra Singh, Jr. Engineer about the remaining payment of the work. Thereupon, the BDO ramesh Purohit told that at the rate of 10%, if he makes the payment, utilization certificate would be prepared. He offered a sum of Rs. 20,000/- but both refused to accept the same. Then, this complaint was lodged and the trap was arranged. In the first trap, it was alleged that the sum of Rs. 32,000/-was recovered from accused Rajendra Singh, which the complainant gave him. During trap, colour of phenolphthalein powder was found on the hands of accused Rajendra Singh and the recovery was made from the commode of battroom of house of Rajendra Singh. Thereafter, accused Rajendra Singh told that the said amount was taken for accused appellant Ramesh Purohit, which has been demanded by him. Thereupon, the police party arranged for a second trap and raided the house of Ramesh Purohit and recovered the same said amount of Rs. Thereafter, accused Rajendra Singh told that the said amount was taken for accused appellant Ramesh Purohit, which has been demanded by him. Thereupon, the police party arranged for a second trap and raided the house of Ramesh Purohit and recovered the same said amount of Rs. 32,000/- from appellant Ramesh Purohit from his pocket, which was given to him by co-accused Rajendra Singh and the colour of phenolphthalein powder was found on the hands of accused appellant ramesh Purohit. After investigation, both of them were chargesheeted u/ss. 7 and 13 (l) (d) (2) of the Act of 1988 and Sec. 120b IPC after obtaining prosecution sanction. Both the accused were charged accordingly, to which they pleaded not guilty. The prosecution examined 22 witnesses. The statements of the accused were recorded u/s. 313 Cr. P. C. They produced six witnesses in defence. After hearing the arguments, learned trial Judge acquitted accused rajendra Singh but convicted the present accused appellant Ramesh Purohit as above. However, both of them were acquitted u/s. 120b IPC. ( 3 ) IT has been submitted by the learned counsel for the appellant that the statement of the complainant Sugna Ram, PW. 12 and of the Investigating officer viz; Ashok Patni, PW. 22, if read with his running note and the FIR, it is clear that how the case has been concocted, in addition to the partial attitude adopted by the learned trial Judge in acquitting the principal accused, who is rajendra Singh,j. En. , and convicting the present accused, to whom the co accused Rajendra Singh is said to have paid the same said money of bribe. In this regard, he submitted that it was accused Rajendra Singh, who was found with the so called bribe of Rs. 32,000/-, which the complainant Sugna Ram paid to him and when the police came to know that accused Rajendra Singh is the brother in law of Suresh Charan, the officer of the Cooperative Department and friend of the investigating officer Ashok Patni, the burden of taking illegal gratification was shifted on the appellant Ramesh Purohit by entirely changing the FIR. It is further submitted by learned counsel that the FIR, Ex. P. 14, which is now on record, though not proved to have been changed but it can be safely gathered from the evidence of the complainant as well as the investi-gating officer. It is further submitted by learned counsel that the FIR, Ex. P. 14, which is now on record, though not proved to have been changed but it can be safely gathered from the evidence of the complainant as well as the investi-gating officer. In this regard, it is also submitted by the learned counsel for the appellant that there was neither any demand from the present appellant for the illegal gratification nor any work was pending with him because the utilization certificate is issued by the concerned Engineers and not by the b. D. O. and the concerned Engineer was co-accused Rajendra Singh,j. En. , who was been acquitted. That apart, according to him, the second seizure by the same police officer from another person by taking the money from the co accused is prohibited under Sec. 5a of the Prevention of Corruption Act, 1947, hereinafter referred-to as "the Act of 1947". In this regard, he has cited the decisions of the High Court of Goa and of Hon'ble Supreme Court in the cases of Ismail Ibrahim Sayed vs. State reported in 1975 Cri. L. J. 1335;banarsi Dass vs. State of Haryana reported in 2010 Cr. L. R. (Sc)389 = 2010 (2)RLW 1395 (SC) and V. Venkata Subbarao vs. State represented by Inspector of Police, a. P. Reported in 2007 AIR SCW9 = RLW2007 (2)SC 1649. ( 4 ) PER contra, learned Public Prosecutor has supported the judgment of the learned trial Court. ( 5 ) I have heard the arguments of learned counsel for the appellant as well as the learned Public Prosecutor and re-appreciated the evidence brought on record. ( 6 ) THE contention of the learned counsel for the appellant that the FIR rx. P. 14 has been substituted, though does not find favour from the record wherein the allegation against both the accused viz; the present appellant ramesh Purohit and accused Rajendra Singh have been levelled but if the statement of complainant Sugna Ram, PW. 12, who lodged the FIR and turned hostile, are read minutely, it smells otherwise. This witness has supported the part FIR regarding pending work of the famine relief at Panchayat Samiti, bilara and also the posting of appellant Ramesh Purohit as BDO and Rajendra singh as J. En. ,who, in the opening words of the examination in chief, has implicated only appellant Ramesh Purohit and did not name Rajendra Singh. This witness has supported the part FIR regarding pending work of the famine relief at Panchayat Samiti, bilara and also the posting of appellant Ramesh Purohit as BDO and Rajendra singh as J. En. ,who, in the opening words of the examination in chief, has implicated only appellant Ramesh Purohit and did not name Rajendra Singh. Upon this, the learned P. P. declared him hostile, whereas the entire investigation record shows that the recovery was initially made at the house of accused Rajendra Singh. He has also denied that accused Rajendra Singh demanded the amount alongwith the BDO. However, he admitted during the cross-examination that Ex. P. 14 was written by him in his hand. Upon further cross-examination, he said that by mistake, he narrated the name of accused rajendra Singh. Upon further cross examination by the learned counsel for the appellant, he stated that under the pressure of Ashok Patni, I. O. , he narrated the name of Rajendra Singh in the FIR. Upon this, the learned trial Court disbelieving the statement, also ordered for his prosecution u/s. 193 IPC. If this statement of Sugna Ram, PW. 12 is read in the light of the statement of the investigating officer Ashok Patni, PW. 22, that he was earlier knowing Suresh charan, officer of the Cooperative Department and brother in Jaw of accused rajendra Singh, there is nothing on record suggesting the involvement of present accused Ramesh Purohit, till the trap was over. Thus, it leads to no other conclusion except that there is some force in the contention of the learned counsel for the appellant regarding manipulation in the FIR. This fact is further fortified from the fact that once the trap was conducted of accused rajendra Singh, who has been acquitted, then the same money was paid by accused Rajendra Singh to present appellant Ramesh Purohit and of the same money, the second trap was conducted by the investigating officer. This cannot be said to be a fair and impartial investigation. It creates heavy doubt on the integrity of the investigating officer in making such types of traps, which has been termed as a farce investigation u/sec. 5a of the Act of 1947 as has been held in Ismail Ibrahim's case (supra ). This cannot be said to be a fair and impartial investigation. It creates heavy doubt on the integrity of the investigating officer in making such types of traps, which has been termed as a farce investigation u/sec. 5a of the Act of 1947 as has been held in Ismail Ibrahim's case (supra ). Thus, once a seizure is made, it cannot be re-done because the seized property is already in possession of the police and it debars subsequent investigation by the same investigating officer. ( 7 ) A close reading of Ss. 7 and 13 of the Act of 1988, which provides punishment for taking gratification other than legal remuneration in respect of an official act or committing criminal misconduct by public servant and opens with the words that if such public servant accepts or attempts to obtain from any person, for himself or for any other person, any gratification other than legal remuneration, makes it clear that criminal liability is not only shifted to the person, who actually accepts the illegal gratification but it also shifts to the abettor by virtue of Section 12 of the Act of 1988. Whether or not that offence is committed in consequence of that abetment, the police has not chargesheeted any one for this act. No provision under the Act of 1988 authorises the investigating officer to arrange a second seizure of the same seized amount from another person. A property which is once seized and comes to the hands of the police, handing over the same to the original accused or to someone else for delivering it to the other person and again to seize the same property from another person, is meaningless display or a hollow formality, which has been rightly termed as a farce seizure under the cited authority. ( 8 ) THE second argument of the learned counsel that there was no demand and presumption u/s. 20 of the Act of 1988 cannot be drawn, can be fortified from the cross examination of the investigating officer Ashok Patni, pw. ( 8 ) THE second argument of the learned counsel that there was no demand and presumption u/s. 20 of the Act of 1988 cannot be drawn, can be fortified from the cross examination of the investigating officer Ashok Patni, pw. 22, in which he has clearly stated that after registration of the FIR, he did not make any verification regarding the demand of illegal gratification from the accused appellant Ramesh Purohit and he first went at the house of accused Rajendra Singh and after recovery of the bribe amount from the house of Rajendra Singh, accused Rajendra Singh told him that he has taken this amount for accused Ramesh Purohit. Thereafter, he told to accused rajendra Singh whether he can give this money to Ramesh Purohit, to which rajendra Singh agreed and he arranged for the second trap, where the complainant was not sent as stated by the investigating officer himself, though he was present and thereafter accused Rajendra Singh paid the money to accused Ramesh Purohit, which was recovered from the pocket of trousers of accused Ramesh Purohit, for which he has given the explanation. Without going into the explanation and looking to the statement of the investigating officer, it reveals that initially, there was neither any demand from the present accused appellant nor the work was pending with him, as the issue of utilization certificate is the concern of Junior Engineer,asstt. Engineer and executive Engineer as told by the investigating officer in his cross examination. When there is no demand or pending work with the accused appellant, then presumption cannot be raised by virtue of Sec. 20 of the Act of 1988, as has been held by the Hon'ble Supreme Court in V. Venkata Subbarao's case (supra ). The same view was reiterated by the Hon'ble Supreme Court with regard to demand and acceptance in Banarsi Dass's case (supra ). It is further, fortified from the recovery memo Ex. P. 11 prepared by the investigating officer on the spot regarding recovery of the bribe amount from the accused appellant Ramesh Purohit that word"rishwat" (bribe) appearing at portion P to Q' of Ex. P. 11 has been erased by the investigating officer by putting his initial. This further shows that no illegal gratification was demanded by the accused appellant. P. 11 prepared by the investigating officer on the spot regarding recovery of the bribe amount from the accused appellant Ramesh Purohit that word"rishwat" (bribe) appearing at portion P to Q' of Ex. P. 11 has been erased by the investigating officer by putting his initial. This further shows that no illegal gratification was demanded by the accused appellant. The manner in which the case has been turned by shifting the liability from accused Rajendra Singh to present accused and also the fact that the complainant has not only turned hostile but he has been ordered to be prosecuted u/s. 193 IPC. Less said better it is, about the investigation by leaving the matter to the Public Prosecutor to convey the higher authorities of the State to take appropriate action in the matter of shifting the liability from one person to another. ( 9 ) ACCORDINGLY, without discussing much on the volume of the evidence, the appeal is allowed and the judgment of the learned Special Judge, Anti corruption Cases, Jodhpur dt. 11. 4. 07 convicting the accused appellant ramesh Purohit for the offences u/ss. 7 and 13 (l) (d) (2) of the Act of 1988 is quashed and set aside and he is acquitted of the charges levelled against him. Appellant is on bail, his bail bonds stand cancelled.