Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 888 (JHR)

Om Shankar Sahu v. State of Jharkhand

2010-09-14

PRASHANT KUMAR

body2010
JUDGMENT Prashant Kumar, J.- This appeal is directed against the judgment of conviction and order of sentence dated 31.5.2002 passed by 2nd Additional Judicial Commissioner-cum-Special Judge, C.B.I., Ranchi in R.C. No. 14(A) of 1995(R), whereby and where under appellant was convicted under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred as the 'Act') and sentenced to undergo rigorous imprisonment for one year and directed to pay fine of Rs.400/- for the offence under Section 7 of the Act and further sentenced to undergo rigorous imprisonment for one year and directed to pay fine of Rs.500/- for the offence under Section 13(1)( d) of the Act. 2. The case of prosecution, in short, is that P.W. 5 (Dwarika Thakur) filed a complaint before the Superintendent of Police, C.B.I., Ranchi on 2.6.1995 stating therein that he was an agent of NSC & KVP having registration no. 39/94-95. It is further stated that he was doing most of his business from Neori Post Office, situated on the gate of Vikash Vidayalaya. It is further stated that at the relevant time, Neori Post Office was headed by one Sri Om Shankar Sahu (appellant). It is further stated that complainant get commission on the sale of NSC & KVP and for that purpose he was required to submit bill before the appellant, who after checking the same forwarded it to B.I.T., Mesra Post Office for payment. It is then alleged that on 31.5.1995 complainant submitted a bill of Rs.1,850/- in the office of appellant for payment of commission on the sale of NSC & KVP. It is further alleged that the appellant demanded half of the commission amount for forwarding the said bill. It is further alleged that when the complainant made request, appellant forwarded the bill by saying that complainant should pay Rs.500/- within one or two days and pay rest of the amount after payment of bill. It is further stated in the complaint petition that appellant threatened that if Rs.500/- will not be paid by 2.6.1995 he will not forward any bill in future and even in the forwarded bill he would get some objection raised by the authority concerned. 3. It appears that the Superintendent of Police, C.B.I., Ranchi asked P.W. 7 to verify the complaint filed by the P.W. 5. 3. It appears that the Superintendent of Police, C.B.I., Ranchi asked P.W. 7 to verify the complaint filed by the P.W. 5. It further appears that P.W. 7 after verification submitted his report to the Superintendent of Police, C.B.I., who, on the basis of same, directed to institute case. Accordingly, R.C. No. 14(A) of 1995(R) instituted. It further appears that thereafter a trap team constituted under the leadership of Sri N. Jha, the then Dy.S.P., C.B.1. It further appears that trap team went to Neori Post Office alongwith complainant Dwarika Thakur. It then appears that Dwarika Thakur (P.W. 5) handed over chemically treated currency note to the appellant and indicated other members of the trap team that appellant received the same. Thereafter, trap team under the leadership of Sri N. Jha entered in the Chamber of appellant and recovered the aforesaid currency note from his possession and prepared seizure list and after completing other formalities arrested appellant. It appears that after investigation, charge- sheet submitted against the appellant. On the basis of said charge-sheet, learned Special Judge, C.B.I, took cognizance of the offence under Section 7 and Section 13(1)(d) of the Act. Thereafter, charges framed against the appellant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act. The said charges explained to the appellant, to which he pleaded not guilty and claimed to be tried. Thereafter, prosecution examined altogether seven witnesses in support of its case. The prosecution also exhibited documentary evidence as' per the list of exhibits. 4. After close of the case of prosecution, statement of appellant recorded under Section 313 Cr.P.C., in which his defence is of total denial. Appellant also took a defence that he has been falsely implicated in the present case because he made written complaint against P.W. 5 with the National Development Officer. It appears that no defence witness examined on behalf of the appellant. However, appellant exhibited two documents i.e. Ext.A photostat copy of pre-trap memorandum dated 2.6.1995 and Ext.-B certified copy of F.I.R. of R.C. No. 18(A) of 1995(R). It then appears that learned court below after considering the evidence available on record, convicted and sentenced the appellant as aforesaid. Against that, the present appeal filed. 5. However, appellant exhibited two documents i.e. Ext.A photostat copy of pre-trap memorandum dated 2.6.1995 and Ext.-B certified copy of F.I.R. of R.C. No. 18(A) of 1995(R). It then appears that learned court below after considering the evidence available on record, convicted and sentenced the appellant as aforesaid. Against that, the present appeal filed. 5. Sri Nityanand Sinha, learned counsel appearing for the appellant, submitted that in the instant case, it has been accepted by the prosecution witnesses that the appellant had no authority to pass the bill submitted by the complainant (P.W.5). It is further submitted that P.W. 5 has admitted that the bill for the sale of NSC & KVP in the month of May 1995 was directly submitted by him in the B.I.T., Mesra Post Office and from where he received payment. P.W. 5 further admits that he knows that the appellant has no authority to check and pass the bill. Accordingly, it is submitted that when the appellant has no authority to pass the bill, the question of receiving bribe, for not raising any objection on the bill, does not arise. It is submitted that learned court below while convicting the appellant has made out a new case by saying that the appellant had returned Ext.-3 series to the complainant and refused to forward the same in B.I.T., Mesra Post Office. It is submitted that Ext.-3 series are the counterfoils of receipts issued by complainant to different beneficiaries, who purchased the NSC & KVP from the complainant. It is submitted that the said Ext.-3 series are not the bill, but the learned court below treated them as bill, which shows that the learned court below not applied its mind properly on the materials available on record and convicted the appellant against the evidence available on record. It is submitted that endorsement made by the appellant on Ext.-3 series, which were marked as Ext.-4 series, shows that appellant checked the receipts as and when same were placed before him. P.W. 5 admits in his deposition that appellant had not demanded any bribe for checking the said receipts, but in spite of that learned court below convicted the appellant. It is submitted that there is nothing on record to show that the receipts (Ext.-3 series) are require to be forwarded by the appellant in the office of Postmaster, B.I.T., Mesra Post Office. It is submitted that there is nothing on record to show that the receipts (Ext.-3 series) are require to be forwarded by the appellant in the office of Postmaster, B.I.T., Mesra Post Office. It is further submitted that in the instant case charge has not been framed properly due to the same, the appellant has been prejudiced in his defence. Accordingly, it is submitted that the impugned judgment of conviction and order of sentence is liable to be set aside. 6. On the other hand, Md. Mokhtar Khan, Assistant Solicitor General of India, submitted that in the instant case appellant was arrested by the trap team red-handed while taking bribe of Rs.500/from complainant (P.W.-5). Under the said circumstance, as per provisions contained under Section 20 of the Act, it can be presumed that the appellant accepted illegal gratification, other than legal remuneration as motive or reward for the act as mentioned in Section 7 of the Act. It is submitted that appellant had not laid any evidence in rebuttal, therefore in view of Section 20 of the Act he has been rightly convicted by learned court below. Hence, no interference required by this Court in the present appeal. 7. Having heard the submission, I have gone through the record of the case. In the instant case learned trial court framed charges against the appellant under Sections 7 and 13 (1) (d) read with Section 13(2) of the Act. For better appreciation, I feel it proper to reproduce the said charges hereinbelow:- " I, Sh. D.P. Singh, Spl. Judge (C.B.I.), Ranchi hereby charge you (Om Shankar Sahu) as follows:- First.- That you. on or about the 2nd July, 1995 being a public servant while posted and functioning as Sub-Postmaster in Neori Vikas Vidyalay, Ranchi Post Office demanded and accepted a sum of Rs.500/- as illegal gratification other than legal remuneration from one Shri Dwarika Thakur as a motive or reward for not raising any objection in the bill submitted by him claiming for the commission of NSC and KVP and thereby committed an offence punishable under Section 7 of the P .C. Act, 1988 within my cognizance. Secondly.-That you, on or about the aforesaid date being a public servant while posted and functioning as aforesaid obtained pecuniary advantage to the extent of Rs.500/- from one Sh. Secondly.-That you, on or about the aforesaid date being a public servant while posted and functioning as aforesaid obtained pecuniary advantage to the extent of Rs.500/- from one Sh. Dwarika Thakur by corrupt and illegal means and by abusing your position as such public servant for not raising any objection in the bills submitted by said Dwarika Thakur claiming for the commission of NSC & KVPs and thereby committed an offence specified under Section 13(1)(d) of P.C. Act, 1988 which is punishable under Section 13(2) of the Act within my cognizance." From the perusal of the aforesaid charges, it is apparent that the appellant was prosecuted for demanding illegal remuneration from complainant Dwarika Thakur for not raising any objection in the bill submitted by him claiming commission on the sale of NSC & KVP. Thus, in my view, the question arose for determination in the present case is as to whether the appellant had any power to pass a bill submitted by a commission agent and whether any bill submitted before appellant for checking as alleged by P.W. 5. In this connection statement of P.W. 3 in his examination-in-chief at paragraph no.3 is relevant. P.W. 3 is the Dy. Superintendent of Post Office, Ranchi. He categorically stated that appellant had no power to pass bill submitted by any commission agents. P.W.-5, who is complainant of the present case and a commission agent, had also admitted at paragraph no. 11 of his deposition that the appellant had no power to pass the bill and this fact was within his knowledge. In this respect, it is also worth mentioning that P.W. 5 admitted at paragraph no. 6 that he himself submitted bill (Ext.-5) in Mesra Post Office and the same was passed by the Mesra Post Office on 2.6.1995 and thereafter he received payment of commission amount on 2.6.1995 itself. It is also not out of place to mention that P.W. 7 Investigating Officer admitted at paragraph no. 38 that he had not seized Ext.-5 (bill) from the possession of appellant. He then categorically stated that he seized it from General Post Office, Ranchi on 17.6.1995. Thus, from perusal of aforesaid evidence available on record, it is clear that the bill in question (Ext.-5) never submitted in the office of appellant for checking and/or for forwarding it to Mesra Post Office. 8. He then categorically stated that he seized it from General Post Office, Ranchi on 17.6.1995. Thus, from perusal of aforesaid evidence available on record, it is clear that the bill in question (Ext.-5) never submitted in the office of appellant for checking and/or for forwarding it to Mesra Post Office. 8. It is also worth mentioning that complainant P.W. 5 stated in his complaint petition that he submitted said bill on 31.5.1995, but Ext.-5 was dated 1.6.1995, which shows that the allegation made in the complaint petition is false and incorrect. From the perusal of impugned judgment, it appears that learned court below had treated Ext.-3 series as the bills submitted by P.W.-5 and gave a finding that appellant refused to forward Ext.-3 series and returned it to the complainant because the complainant not paid illegal gratification to the appellant. In my view, the aforesaid finding of the court below is wholly erroneous and appears to have been given without application of mind. From bare perusal of Ext.-3 series, it is clear that the same are not bills rather the same are counterfoils of receipts issued to different investors by the authorized agents. It is worth mentioning that P.W. 5 at paragraph no. 8 admitted that appellant had not demanded any money for checking and for making endorsement (Ext.-4) on the aforesaid receipts (Ext.-3 series). 9. It is not out of place to mention that at paragraph no. 5 of the impugned judgment, learned court below stated that the defence counsel pointed out that there is no signature and/or endorsement of the appellant on Ext.-5, but learned court below rejected aforesaid submission by saying that the actual bills were marked as Exts.-3 to 3/36. Aforesaid finding of learned court below is wholly erroneous, because Ext.•3 series are not the bills rather the same are counterfoils of receipts issued by authorized agents. 10. Thus, from perusal of aforesaid evidence laid by the prosecution, it is clear that the appellant has no power to pass the bill nor any bill was pending before him submitted by complainant P.W.-5. Under the said circumstance, the charges framed against the appellant alleging that he demanded and accepted a sum of Rs.500/- as illegal gratification for not raising any objection on the bills submitted by the complainant claiming commission of NSC & KVP is erroneous and against the fact of the case. Under the said circumstance, the charges framed against the appellant alleging that he demanded and accepted a sum of Rs.500/- as illegal gratification for not raising any objection on the bills submitted by the complainant claiming commission of NSC & KVP is erroneous and against the fact of the case. It appears from the impugned judgment that the learned court below proceeded in the case and convicted the appellant assuming that Ext.-3 series are bills submitted by the complainant and the appellant refused to forward the same because he has not been paid illegal gratification. As noticed above, no charge framed against the appellant for not forwarding Ext.-3 series. Thus, in my view, the appellant cannot be convicted for the said acts and/or omission. 11. Md. Mokhtar Khan, learned counsel for the C.B.1. submitted that in the instant case, it is proved that the appellant had accepted illegal gratification, therefore, it will be presumed unless contrary is proved that he accepted the gratification as a motive or reward for the act as mentioned in Section 7 of the Act. Sri Khan further submits that no evidence adduced on behalf of appellant to show that he has received the aforesaid amount as legal remuneration. 12. Their lordships of Supreme Court in Bhupesh Deb Gupta (Dead) by LRs Vs. State of Tripura reported in (1979)1 SCC 87 had rejected aforesaid submission while dealing with an identical matter and held at paragraph no. 12 that:- "It would have been open to the prosecution to rely on the presumption if the charge was properly framed and the accused was given an opportunity to meet the charge which the prosecution was trying to make out against the accused." 13. As noticed above, in the instant case, the learned 'court below had not properly framed charges against appellant because appellant has been charged for an act which he was not authorized to do as a public servant. Therefore, the appellant must have been prejudiced by defect in the charge. Under the said circumstance, the presumption under Section 20 of the Act is not available to tile prosecution as per the aforesaid law laid down by Hon'ble Supreme Court. 14. Therefore, the appellant must have been prejudiced by defect in the charge. Under the said circumstance, the presumption under Section 20 of the Act is not available to tile prosecution as per the aforesaid law laid down by Hon'ble Supreme Court. 14. In the instant case, I find that the learned court below has convicted the appellant for not forwarding Ext.-3 series, but from perusal of the statement of appellant under Section 313 Cr.P.C., I find that learned court below had not put any question to the appellant to explain as to why he has not forwarded Ext.-3 series to competent authority. Aforesaid lacunae goes to the root of the case because the appellant had not been given adequate opportunity to explain the circumstance which become basis for his conviction. On this ground also the impugned judgment of the court below cannot be sustained. 15. In view of the discussions made above. I find that the impugned judgment of conviction and order of sentence suffers from various illegality and irregularities, therefore, the same cannot be sustained in this appeal. 16. In the result, this appeal is allowed. The impugned judgment of conviction and order of sentence are set aside. The appellant is acquitted from the charges levelled against him. He is also discharged from the liabilities 'of the bail bond furnished by him.