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Uttarakhand High Court · body

2011 DIGILAW 747 (UTT)

PRADEEP JOSHI v. STATE OF UTTARANCHAL

2011-12-27

SERVESH KUMAR GUPTA

body2011
JUDGMENT The challenge made in this appeal is to the judgment and order dated 16.8.2005, passed by the Special Judge (Anti Corruption), II F.T.C., Nainital in Special Triable Criminal Case No. 8/2002, State v. Pradeep Joshi, whereby the learned Judge found the accused Pradeep Joshi guilty of the offence of Section 7 of the Prevention of Corruption Act, 1988 (for brevity, hereinafter referred to as the ‘Act’) and sentenced him to undergo rigorous imprisonment for a period of two years nay a fine of rupees five thousand. In default of payment of fine, he was directed to undergo one month’s additional simple imprisonment. The accused appellant was also found guilty of the offence of Section 13(1 )(d) read with Section 13(2) of the Act and was sentenced to undergo two years’ rigorous imprisonment nay a fine of rupees five thousand. In default of payment of fine, the accused was directed to undergo one month’s additional simple imprisonment. 2. The controversy involved in this appeal revolves around a small piece of land measuring 120 sq. ft. located at Rajpur Road, Dehradun, a very significant commercial place of the town. This land was actually owned by Irrigation Department of the State Government, and the lease of the same was granted to one Krishna Lal Bhatia, father of Rahul Bhatia (decoy). Krishna Lal Bhatia breathed his last on 30.3.1997, but the said piece of land, whereupon two tin sheds were built up, continued to be in possession of his son Rahul Bhatia. 3. The accused/appellant Pradeep Joshi was the Executive Engineer of the Irrigation Department having his immediate control over the land owned by his department. It has been alleged on behalf of the defence that the lease of the land, in question, was cancelled sometime in 1992, but the same continued to be in the possession of Rahul Bhatia. When he apprehended his eviction from the land in dispute, he filed a Civil Writ Petition No. 47679/2000 before the Hon’ble Allahabad High Court, but before he could procure any stay order from the said Court, the tin sheds were dismantled by the department. 4. When he apprehended his eviction from the land in dispute, he filed a Civil Writ Petition No. 47679/2000 before the Hon’ble Allahabad High Court, but before he could procure any stay order from the said Court, the tin sheds were dismantled by the department. 4. In the helm of above affairs, Rahul Bhatia moved an application on 18.5.2000 to the Executive Engineer, Irrigation Department with prayer to renew the lease of the piece of land, in question, and transfer the same in his name as his father remained no more and he was his only son. No sooner did he moved this application, his ordeal commenced at the hands of all officials of the said department, right from Class IV employees to the level of Executive Engineer i.e. the present appellant. It is alleged that for the desired task, an amount of rupees fifteen thousand was demanded from Mr. Rahul as consideration in the form of illegal gratification. Feeling aggrieved, Mr. Rahul moved an application on 27.5.2000 to the Superintendent of Police, Vigilance, which is Ex. Ka-2, wherein he stated the aforesaid facts and further alleged that Mr. Pradeep Joshi, Executive Engineer was demanding rupees fifteen thousand as illegal gratification for transferring the land, in question, in his name and for permitting to carry out the repair works in the shop therewith allowing Mr. Rahul to deposit the lease rent of the shop till 31.3.2000 in the department. He also stated in his application that feeling constraint, he promised to pay rupees five thousand within a week as advance money and further assured him to pay the remaining amount after getting the work done. He stated that he did not want to part with this money illegally demanded by the accused appellant, rather he expressed his desire to get him trapped while accepting such bribe. He, accordingly, presented rupees five thousand in the form of ten currency notes, each in the denomination of rupees five hundred, whose particulars were given in the application. 5. On the aforesaid application, moved by Mr. Rahul, a trap party was organised after procuring the attendance of two independent witnesses Virendra Singh and S.P. Tyagi. After completing the other formalities of conducting a trap including application of the chemical upon the said currency notes, Trapping officer, Inspector Nand Kishor Tyagi took other vigilance staff and independent witnesses as well Mr. Rahul, a trap party was organised after procuring the attendance of two independent witnesses Virendra Singh and S.P. Tyagi. After completing the other formalities of conducting a trap including application of the chemical upon the said currency notes, Trapping officer, Inspector Nand Kishor Tyagi took other vigilance staff and independent witnesses as well Mr. Rahul Bhatia and reached at the residence of the appellant accused which was located in the close vicinity of his office. The trap was conducted on 31.5.2000 at about 7.30 pm. The decoy Mr. Rahul Bhatia knocked the door of the accused Executive Engineer. He was welcomed and made to sit in the drawing room. As was planned in advance, the members of the trap party had already taken their respective positions eavesdropping and stealthily watching the happenings inside the room. Mr. Rahul referred to his work of renewal of the lease and deposit of the rent as aforementioned and kept the chemical applied currency notes of rupees five thousand on the central table lying in front of the sofa. No sooner did the accused Executive Engineer touched the currency notes, the members of the trap party pounced over him and caught him red handed while accepting the bribe from the complainant Rahul Bhatia. When his hands/fingers were made to wash in the chemical water, the same turned pink. An FIR was lodged on the same day at 23 hours i.e. 11 pm. 6. The matter was investigated by Mehak Singh, Dy. Superintendent of Police, who after completing the investigation, submitted the chargesheet for the offences as stated above. The learned Judge levelled the charges upon the accused appellant on 13.8.2002 for the offences aforementioned and concluded the trial in conviction, as stated above. Hence, this appeal. 7. Heard learned Counsel for the parties and also perused the trial court record. 8. The learned Senior Counsel for the appellant read the entire evidence before this Court. PW 1 Mr. Rahul Bhatia is the main witness, the decoy himself. He has deposed regarding the lease of the shop made in the name of his father way back in 1990. He further stated that after death of his father, he applied for succession and renewal of the same in his name “On 18.5.2000 annexing the death certificate of his father along with his application. 9. He has deposed regarding the lease of the shop made in the name of his father way back in 1990. He further stated that after death of his father, he applied for succession and renewal of the same in his name “On 18.5.2000 annexing the death certificate of his father along with his application. 9. The learned Counsel for the appellant has vociferously argued that the demand of illegal gratification to the tune of rupees fifteen thousand was actually made by Nathi Singh Kundra, Ziledar (Ziledar is the designation of an inferior official in the office of the Executive Engineer, Irrigation), who had demanded rupees five thousand in advance leaving rupees ten thousand to be paid later after getting the work done. I do not find any substance in the argument for the reason that at the same time, he has also deposed that Ziledar Mr. Kunda asked him to pay this money straightway to the Executive Engineer. Mr. Kundra rang him up naming the Executive Engineer Pradeep Joshi. It is not unusual for a high rank officer like an Executive Engineer not to put the demand straightway by his own utterances, but to make the needy aware regarding the consideration of the demanded money through his subordinates. 10. Another argument put forth by learned Counsel for the appellant is that the power to renew the lease was within the jurisdiction of the State Government. Thus he contended that when the task was to be done by the State Government, then the money could not have been demanded either by the Executive Engineer or his subordinates for the said work. This contention also lacks substance because even if the power of renewal of the lease was within the jurisdiction of the State Government, but the papers of the same had to be prepared and forwarded to the State Government from the lowest rung of the Irrigation Department and that was the office of Executive Engineer which included all his assistants and subordinates. All the more, the papers Ex. XIV to XXII manifest the entire sequence of the incident which was observed by the culprit in accomplishment of the task. All the more, the papers Ex. XIV to XXII manifest the entire sequence of the incident which was observed by the culprit in accomplishment of the task. The papers of the renewal of the lease, in anticipation of the sanction of the State Government, were prepared by the office of the Executive Engineer and those were kept in the house of the culprit until fulfilment of his demand of the illegal gratification. 11. The learned Counsel argued that the Executive Engineer at the time of removing the money from his table stated that the task was not within his powers. It may be true because the ultimate sanction of the renewal of the lease was to be done by the State Government, but the fact remains that the papers had to be prepared and initiated from the office of the Executive Engineer. 12. It has also been argued that the Chief Engineer of the department sends those papers to the State Government So, there was no occasion for the appellant to demand the money in consideration of the task. This argument is not tenable at all because the Chief Engineer, who occupies a top position in the department, is not supposed to send any paper to the Government for its sanction without having been routed and forwarded the same through the Executive Engineer. This way, the appellant had to play a pivotal role in getting done the desired work of Mr. Rahul. 13. It has been argued that when the money was put on the central table by Mr. Rahul, the same was removed by Mr. Pradeep Joshi. It appears to be a garbage argument inasmuch as it is not the case of the appellant Mr. Pradeep Joshi that he threw that money outside his room or put the same back in the pocket of Mr. Rahul or asked any question from him as to why he had brought this money, rather he welcomed him and offered a seat in his drawing room. So, by stating that the task was to be done by the State Government, the accused was only feigning and was giving an indication to Rahul Bhatia to pay the remaining amount of rupees ten thousand very soon, otherwise the desired task may stuck and fall in jeopardy. 14. PW2 is the independent witness Virendra Singh. So, by stating that the task was to be done by the State Government, the accused was only feigning and was giving an indication to Rahul Bhatia to pay the remaining amount of rupees ten thousand very soon, otherwise the desired task may stuck and fall in jeopardy. 14. PW2 is the independent witness Virendra Singh. He has been declared hostile and has vehemently denied that Pradeep Joshi was not trapped on his residence on 31.5.2000. But this witness has not explained anything as to how he came to know that Pradeep Joshi was not trapped on that day. If he was not present at the spot, then his statement negating the trap is nothing but a patent lie, He states himself to be an Intermediate passed person. So, it seems very appalling that he innocently signed on all the papers just on the mere asking of the vigilance team. 15. PW3 is S.P. Tyagi. He is also an independent witness. He has proved the entire story of the trap and corroborated the prosecution version. His statement is quite reliable and believable. 16. PW4 Inspector Nand Kishor Tyagi was the Vigilance Inspector at the relevant time and he had led the trap party. He had also taken the requisite sanction for making the raid upon the accused person and has proved the entire chain of the incident, which has been already stated by the decoy Rahul Bhatia in his statement. 17. Rest are the formal witnesses including the Investigation Officer, who has proved taking of sanction from the competent authority for launching the prosecution and the same has been ratified by PW9 R.P. Singh, the then Under Secretary in the U.P. Government. 18. The accused has examined D.S. Rawat, Assistant Engineer, who has given statement belieing the prosecution version. But in the opinion of this Court, since he was a subordinate to the accused, posted in the same department, so naturally he was sailing in the same boat and could not have had afforded to go against his Executive Engineer and reveal the truth before the court. 19. Learned Counsel for the appellant pointed out certain minor and immaterial discrepancies in the evidence. It is a settled position of law that there is no criminal case, which is free from even the minor discrepancies. 19. Learned Counsel for the appellant pointed out certain minor and immaterial discrepancies in the evidence. It is a settled position of law that there is no criminal case, which is free from even the minor discrepancies. These are bound to occur here and there in a truthful case because the power of observation, perception and description of the sequence of the incident varies from witness to witness and depends upon innumerable factors.Word to word identical parrot like statements are only possible where the witnesses are tutored prior to their deposition in the Court. 20. Hon’ble Apex Court in the case of State of Maharashtra v. Narsingrao Gangaram Pimple, reported in (1984) 1 SCC 446, has held as under: “The testimony of a trap witness who bears no grudge or animus against the accused is ordinarily reliable. Minor contractions or inconsistencies in his version which is not very material is not sufficient to discredit his testimony. Merely because two years before the concurrence he was an accused in a maramari case which was ultimately compromised or because he made statement before the court after the public prosecutor was permitted to cross-examine him although he was not declared hostile, it is not proper to discard his testimony. Similarly, the failure of the complainant, who participated in the trap, to state about the demonstration of subjecting all members of the raiding party to anthracene powder test in the glow of bulb, would by itself not discredit his testimony particularly when corroborated by independent witnesses.” 21. I have gone through the judgment of the trial court. It has very elaborately discussed each and every aspect of the prosecution version and has rightly convicted and sentenced to the accused appellant Pradeeep Joshi. Hence, the impugned judgment and order of the trial court warrants no interference by this Court . 22. Resultantly, the appeal is dismissed. The impugned judgment and order dated 16.8.2005 passed by the Special Judge (Anti Corruption), II F.T.C., Nainital in Special Triable Criminal Case No. 8/2002, State v. Pradeep Joshi, is upheld. The conviction and sentence awarded to the accused by the said judgment are hereby affirmed. Appellant is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the sentence as awarded by the trial court. The conviction and sentence awarded to the accused by the said judgment are hereby affirmed. Appellant is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the sentence as awarded by the trial court. However, the period already spent by him behind the bars during the course of investigation, trial and appeal shall be adjusted as per law. Sureties shall stand discharged after the arrest of the accused convict. 23. Let a copy of this judgment and order be sent to the trial court for compliance. Trial court record be sent back.