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2011 DIGILAW 985 (JHR)

Balendra Singh v. State of Jharkhand

2011-11-11

JAYA ROY

body2011
JUDGMENT Jaya Roy, J. - The appellant has filed this appeal against the Judgment of conviction and order of sentence dated 27.11.2006, passed by the IXth Additional Judicial Commissioner-cum-Special Judge(Vigilance) at Ranchi, in Spl. Case No.04 of 1997, arising out of Vigilance P.S. Case No.35 of 1997, whereby he has convicted the appellant under Section 13(2) of the Prevention of Corruption Act and sentenced him to undergo R.I. for two years together with a fine of Rs.5,000/-and in default of payment of fine, he has been directed to undergo a further period of three months imprisonment. 2. The prosecution case in brief is that on the written report of Sri Ashok Kumar Sinha, the then Superintendent of Police Vigilance wherein he has stated that a preliminary inquiry was conducted by Vigilance Bureau of Cabinet Vigilance, Bihar and it was found that Balendra Singh, Deputy Superintendent of Police who was posted as Enforcement Officer at Jamshedpur, seized Truck No.BR-16B-7689 on 6.12.94 and it was kept in Sakchi Police Station. After presenting tax token No.A-299573 valid up to 22.12.94, the said truck was released by the Enforcement Officer and release order was signed by him on 6.12.94. From perusal of the release order, it was found that on the said day some facts were concealed by mentioning some other date in the station diary entry No. 323 of Sakchi P.S. which reveals that truck No. BR-16B-7689 was released from the said police station on 7.12.1994. This fact shows that Balendra Singh illegally seized that truck and to conceal his criminal act, release order was prepared and entry was made in the police station. On the basis of the aforesaid Written report a formal F.I.R. has been drawn and this case has been registered against the accused appellant. 3. This fact shows that Balendra Singh illegally seized that truck and to conceal his criminal act, release order was prepared and entry was made in the police station. On the basis of the aforesaid Written report a formal F.I.R. has been drawn and this case has been registered against the accused appellant. 3. In the said F.I.R. a number of allegations made against the appellant but the trial court considering the evidence of the witnesses and materials on records and after considering the arguments advanced by both the parties, convicted the present appellant only under Section 13(2) of the P.C.Act holding that the prosecution succeeded to establish that accused obtained Rs.2500/-from Krishna Yadav, owner of the truck No. BR-16B-7689 by corrupt or illegal means by abusing his position as a public servant and gave him opportunity to deposit up to date tax while aforesaid truck was being plied without paying road tax, and accused appellant being public servant committed criminal misconduct defined under Section 13(1)(d) of the P.C.Act and sentenced him as stated above and acquitted him from all other charges framed against him. 4. The prosecution to prove its case has examined six witnesses amongst them P.W.1 Krishna Yadav owner of the truck in question, P.W.2 Deputy Superintendent of Police Prakash Kumar Sinha, P.W.3 Raj Narayan Upadhyay, Typist in the Home Department who proved the signature of the Secretary, Home Department Pramod Kumar Sharma as Ext.4, P.W.4 Dy.S.P. Shivajee Singh, P.W.5 informant Ashok Kumar Sinha, I.G. Railway, P.W.6 Deputy S.P. Bipul Shukla, Investigating Officer (I.O.) and Two Court witnesses namely C.W.-1 Jagdish Prasad Singh and C.W.-2 is Girish Kumar, Personal Assistant, Law Department who proved sanction order as Ext.4/1. The defence has also examined three witnesses, D.W.1 M. Jagdish, Computer Assistant at Jamshedpur D.T.O. Office who proved the certificate Ext. 'A' issued by D.T.O., Jamshedpur. D.W.2 Lakhan Ram, who brought station diary from Sakchi Police Station. D.W.3 Surendra Prasad Singh, Inspector (Vigilance), Ranchi, who was the then Officer-in-Charge, Sakchi P.S. and he proved the station diary no.492 dated 15.11.97, Station Diary No.323 dated 7.12.94 Station Diary Entry No.260 dated 6.12.94, Station Diary Entry No.375 dated 8.12.94. 5. Mr. 'A' issued by D.T.O., Jamshedpur. D.W.2 Lakhan Ram, who brought station diary from Sakchi Police Station. D.W.3 Surendra Prasad Singh, Inspector (Vigilance), Ranchi, who was the then Officer-in-Charge, Sakchi P.S. and he proved the station diary no.492 dated 15.11.97, Station Diary No.323 dated 7.12.94 Station Diary Entry No.260 dated 6.12.94, Station Diary Entry No.375 dated 8.12.94. 5. Mr. B.M.Tripathy Senior counsel appearing for the appellant, has pointed out that the trial court in para-26 of the Judgment has held that the accused being the Enforcement Officer gave opportunity to the owner/ driver to deposit the tax with ulterior motive otherwise according to Section 28 of Bihar Motor Vehicle Taxation Act, he should have imposed penalty when owner/driver of the truck failed to exhibit the tax token, in the manner prescribed in Section 20 of Motor Vehicle Taxation Act. But the trial court has failed to appreciate the evidence of P.W.1 Krishna Yadav who is owner of the truck in question bearing registration No. BR-16B-7689 as he in his evidence has very specifically stated in his cross-examination that he had never given a sum of Rs.2,500/-to the appellant on 6.1.2.1994 when his truck was seized by the appellant from a garage. He had further stated that due to the brick batting and stone pelting the windscreen of this truck suffered damage and he was getting the same repaired in the garage when his truck was seized. He had further stated that after the seizure of the truck in question and when tax token was demanded by the appellant, he went to the transport office and brought the same and produced before the appellant. The appellant then issued release order and for that opportunity, the appellant neither demanded any money from him nor he paid Rs.2,500/-to him. He has also not stated that the tax token was procured from the District Transport Office, Jamshedpur on 6.12.94 after depositing the tax. 6. Mr. Tripathy has further contended that the I.O. of this case Vipul Shukla (P.W.6) has admitted in para 36 of his evidence that in course of the investigation he never visited nor inspected any records from Jamshedpur District Transport Office. It is also stated that P.W.5 the informant has also admitted in para-11 of his evidence that he never made any investigation with regard to the allegations made against the present accused appellant. 7. Mr. It is also stated that P.W.5 the informant has also admitted in para-11 of his evidence that he never made any investigation with regard to the allegations made against the present accused appellant. 7. Mr. Tripathy has submitted that the prosecution has not produced any proof either oral or documentary to show that P.W.1 had deposited the tax of his truck on 6.12.94. On the other hand, the P.W.1 has stated that he brought the same from transport office and produced before the appellant because the windscreen of his truck was damaged where the tax token is to be displayed. 8. It is further submitted that the trial court has wrongly held that at the time of seizure when the truck owner could not produce the tax token, he could have imposed penalty and by not doing so, a loss to the Govt. exchequer has occasioned. The trial court failed to appreciate that the truck in question was seized by the appellant under the provision of Section 22(2) of Bihar M.V. Taxation Act. The sub Section 2 reads that:- “if the tax or penalty or both tax and penalty has not been paid in accordance with the provisions of this act, the officer may, while proceeding under Sub Section (1) seize the motor vehicle and detain it till the tax is paid and on such seizure, the said officer shall take such step as he may consider proper for the temporary safe custody of the vehicle.” It is submitted according to the aforesaid provision the appellant rightly detained the truck till the tax token was produced and for which the truck owner is not liable for any penalty. The trial court has misinterpreted the provision of Section 28 of the said Act which is a penal provision. Section 28(1) (a) reads as follows:- “Whoever uses a motor vehicle or keeps a motor vehicle for use without having paid tax shall be punished with fine” In the present case, the truck of P.W.1 is admittedly was not in use nor it was kept for use rather it was kept in the garage for repairing and the appellant rightly did not impose any fine but demanded the tax token as the windscreen of the said truck was found broken and on production of the same, the release order was issued. The tax was paid but due to the damage of the windscreen, tax token was not shown in the truck. 9. Mr. Tripathy has submitted that the D.W.1 who is computer operator in the District Transport Office, Jamshedpur proved the exhibit-A issued by the District Transport Officer Jamshedpur which shows that the tax for a period from 23.9.94 to 22.12.94 with respect of Truck No. BR-16B-7689 was deposited on 30.9.94 and on the same date, the tax token was given to the Truck Owner Krishna Yadav. 10. Mr. Tripathy has contended that the Trial court has acquitted the appellant and did not hold him guilty with respect to the seizure of other trucks and acquitted from all other charges framed against him except the present one. 11. Mr. T. N. Verma the learned counsel appearing for the Vigilance has stated that P.W.1 has admitted in his deposition that his truck was released from the Sakchi Police Station on 07.12.94 and he has further admitted that he had stated to I.O. that he had given Rs.2500/ to the Enforcement Officer for the release of the said truck. 12. Mr. Verma has further contended that Ext-5 which is a letter sent by the accused appellant to the Additional Director General, Cabinet Vigilance, Bihar, a copy of which was given to the I.O. of this case and also from the exhibit-A/3 it is clear that on the day of seizure tax was paid only upto 22.9.94 for the truck No. BR-16B-7689. Therefore, the accused appellant gave opportunity to the truck owner to deposit the tax and then released the said vehicle. 13. From Perusal of the Ext-5, which is the letter written by the accused appellant in which he has stated that the tax upto 22.12.94 was already paid on 22.9.1994 by the accused appellant. Therefore, this contention made by Mr. Verma has no substance. 14. In reply Mr. Tripathy Senior Counsel appearing for the appellant, has pointed out in the cross-examination P.W.1 has very specifically stated that 6-7 months prior, his aforesaid truck was seized for over loading and for that he had to pay the aforesaid amount. 15. Therefore, this contention made by Mr. Verma has no substance. 14. In reply Mr. Tripathy Senior Counsel appearing for the appellant, has pointed out in the cross-examination P.W.1 has very specifically stated that 6-7 months prior, his aforesaid truck was seized for over loading and for that he had to pay the aforesaid amount. 15. From perusal of the evidence of the witnesses and the materials on record, I find that P.W.1 who is owner of the truck in question, very specifically stated that as because the truck in question was in the garage for repairing the windscreen which was damaged by pelting stone etc., the tax token could not be produced at the time of the seizure of the aforesaid truck and further he produced the tax token on the same day which shows tax was paid upto 22.12.94 and in support of his contention he has also filed the certificate given by the D.T.O. Jamshedpur (Ext-A). Furthermore, none of the prosecution witnesses have stated in his evidence that they had investigated from the D.T.O. Office regarding the date of the payment of the tax in connection with the seized truck in question. Therefore, as discussed above, in my opinion the prosecution has failed to prove the aforesaid charge against the accused appellant beyond all reasonable doubts. I, therefore, allow the appeal on giving benefit of doubt and set aside the judgment of conviction and the order of sentence dated 27.11.2006 recorded by the trial court. As the appellant is on bail, the appellant is discharged from his liability of the bail bonds.