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2012 DIGILAW 1088 (PAT)

BIRENDRA KUMAR v. STATE OF BIHAR

2012-08-07

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. This appeal arises out of a judgment and order dated 20.12.1999, passed by the Special Judge, Vigilance, Patna in Special Case No. 64/92 convicting the appellant who was posted as a Deputy Registrar of the Co-operative Society, Patna at the relevant time, to undergo R.I. for 3 years with fine of Rs. 10,000/- under Section 7 of the Prevention of Corruption Act. Failure to pay the fine, would result in imprisonment for one year. The appellant was also convicted to undergo R.I. for 3 years under Section 13(2) of the Prevention of Corruption Act. The sentences are ordered to run concurrently. 2. A complaint was filed by Amrendra Prasad alleging therein that he was elected as a member of Jyoti Puram Housing Co-operative Society, Khajpura, Patna. The election was challenged by Tulsi Vishwakarma and others which was allowed by the appellant. It is further stated that a review petition was filed in December, 1990 by the respondent. The appellant stayed the order and judgment passed in the election petition and the matter was heard. In May, 1992, a date was fixed for judgment. However, no judgment was delivered. The complainant supposedly went to meet the appellant in his office to request him to give his judgment and it is said that the appellant called the complainant to his house at Rajbanshi Nagar. It is alleged that when the appellant went to meet him at his residence at Rajbanshi Nagar, the appellant demanded 2 Kathas of land. In June, 1992, the complainant met the appellant and told him that it would not be possible to give him 2 Kathas of land. The appellant then demanded a Godrej Puff Refrigerator and also demanded that he should pay a sum of Rs. 5,000/- as an advance. Accordingly, the informant filed a complaint petition. It is said that the appellant demanded a sum of Rs. 9,500/- in lieu of Voltas Refrigerator. On the complaint being filed a pre-trap team was constituted and the complainant along with Jai Nandan Singh who acted as a verifier in this case went to the house of the appellant. On reaching the house of the appellant, he was taken to another room and the demand was made. The complainant agreed to fulfill the demand. According to the report (Ext. On reaching the house of the appellant, he was taken to another room and the demand was made. The complainant agreed to fulfill the demand. According to the report (Ext. 9) prepared by the verifier, P.W. 7, it has been stated that he was able to overhear the conversation from the room where he was sitting. After the verification was done, a demonstration was made so that the money which was to be paid to Birendra Kumar could be covered in the required chemicals so that the appellant could be caught red handed while accepting the bribe. 3. It would transpire that on 24.7.1992, Amrendra Prasad the informant of this case along his brother Ramdhyan Prasad and the verifier Jai Nandan Singh went in a Maruti Car to the house of Birendra Kumar. The other members of the trap team were following them in separate vehicles. On reaching the house of Birendra Kumar, it is said that he came down the stairs from his house, which was on the first floor and accepted the bribe by sitting in the Maruti Car. Once he got off the car and was returning to his flat he was caught by P.Ws. 3 and 8 in presence of the Magistrate, Vigilance (P.W. 2). The procedure of dipping his hands in Phenolphthalein and Sodium Carbonate was followed, a sample was separated to be tested by the forensic laboratory and thereafter the appellant was taken into custody. A memo of seizure was prepared in presence of two independent witnesses, P.Ws. 11 and 12. 4. The defence on behalf of the appellant is that D.W. 1 has been examined to indicate that the complainant Amrendra Prasad had no role whatsoever in pursuing the civil review as it was Mohan Prasad who had filed the review application which is Ext. A. Mohan Prasad had deposed that Amrendra Prasad had no concern with the review application as he was neither the person who had filed it nor the Pairvikar in the case. 5. In order to prove the prosecution version, 13 witnesses have been examined. Amrendra Prasad who is the complainant is the first witness in this case. He has supported the case made out in the complaint petition regarding the demand and handing over of the money. He had stated that there was a demand of Voltas Refrigerator. 5. In order to prove the prosecution version, 13 witnesses have been examined. Amrendra Prasad who is the complainant is the first witness in this case. He has supported the case made out in the complaint petition regarding the demand and handing over of the money. He had stated that there was a demand of Voltas Refrigerator. It has also been stated that he was to pay a sum of Rs. 5,000/- as advance in lieu of a judgment in his favour. According to him ten notes of Rs. 500/- each were covered with Phenolphthalein powder so that the fingers of the appellant would be stained, if they were dipped in Sodium Carbonate. Regarding the manner of trap he has stated that the brother of the accused Birendra Kumar went up to his flat to inform, him that the complainant had arrived with the said money. It is his case that the appellant came outside his house and sat on the front seat of the Maruti Car, received money and left. In his cross-examination it has been stated that his brother Ramdhyan Prasad went to jail in a case of defalcation of money from the same Society i.e. Jyoti Puram Housing Co-operative Society in the year 1993. It has been submitted that P.W. 1 had no concern with the review application and the story that he has put forward that there was demand of 2 Kathas of land, which was subsequently reduced to a demand of a Refrigerator is an absurd story and it should not be believed by any Court. It is also submitted that the brother of P.W. 1 was instrumental in trying to maneuver things so that he would get the maximum benefits out of implicating the appellant. The submission is that there is a deliberate implication of the appellant as it was suspected by P.W. 1 that there would be no order in favour of the elected members of the Society and as such, the appellant was falsely implicated. 6. P.W. 2 Ajay Kumar Singh is the Magistrate of the Vigilance Department. According to him P.W. 1 and Jai Nandan Singh, the Verifier went to call the appellant from his house and thereafter handed over the money to him after he sat in the Maruti Car. 6. P.W. 2 Ajay Kumar Singh is the Magistrate of the Vigilance Department. According to him P.W. 1 and Jai Nandan Singh, the Verifier went to call the appellant from his house and thereafter handed over the money to him after he sat in the Maruti Car. Two independent witnesses were called at the time of body search of the appellant who have signed on the seizure list. The procedure for dipping the hands in Sodium Carbonate was done in the premises of the appellant. Apart from these points that have been highlighted, there is nothing of value in the evidence of P.W. 2. 7. Learned counsel for the appellant on the other hand points out that there is a conflict in the statement made by P.Ws. 1 and 2. It is submitted that P.W. 1 states that Birendra Kumar’s brother went to call him from his house whereas P.W. 2 states that the informant and P.W. 7 the Verifier had gone to fetch the appellant from his house. 8. The next witness is the D.S.P., Vigilance. He has supported the prosecution case with respect to the recovery of Rs. 5,000/- and has stated that the G.C. Note Memo (Ext. 3) was prepared in the office of the Vigilance Department. 9. P.W. 4 is a formal witness and is a Typist who has prepared Ext. 5, the sanction order whereas P.W. 5 is a Steno-cum-Typist has produced Exhibits 6 and 7 which are files of the case relating to Jyoti Puram Housing Co-operative Society, Khajpura, Patna. 10. The next witness is P.W. 6 Prakash Kumar Sinha is Deputy Superintendent of Police in the Vigilance Department. He has supported the factum of recovery. 11. The most important witness is P.W. 7, Jai Nandan Singh, the Verifier who has proved Ext. 1, the complaint petition and Ext. 1/1, the orders of the Deputy Superintendent of Police to act as a Verifier in the case. According to his version when he went to the house of the appellant, he was introduced as a staff of “Mohan Babu”. He has stated that the complainant was taken to a separate room where the demand of Rs. 5,000/- was supposedly made. According to him he heard the conversation. He has also proved certain documents such as Ext. 9 which is the verification report dated 22.7.1992 submitted by him and Ext. He has stated that the complainant was taken to a separate room where the demand of Rs. 5,000/- was supposedly made. According to him he heard the conversation. He has also proved certain documents such as Ext. 9 which is the verification report dated 22.7.1992 submitted by him and Ext. 10, the signature on the First Information Report and Ext. 3 which is the G.C. Notes Memorandum which was prepared by P.K. Sinha in his presence. He has identified the handwriting of P.K. Sinha. In his cross-examination he has stated that the complainant went to call the appellant and thereafter the appellant sat in the Maruti Car along with Amrendra Prasad on the back seat of the car where he was handed over the said money. It is his case that the seizure was made in front of the independent witnesses and the money was recovered from the fist of the appellant. He admits the presence of Ramdhyan Prasad. He also accepts that Mohan Babu was the Secretary of the Co-operative Society at the relevant time. At paragraph 41 he says that he was introduced as Mohan Babu to the appellant which contradicts his statement in the chief. 12. P.W. 8, Chandra Bhushan Kumar Singh is a Watcher. He has given evidence with regard to factum of recovery and claims that the seizure list was made by the independent witnesses. 13. P.W. 9, Subrat Gupta was the Assistant Director posted in the Forensic Science Laboratory, Government of Bihar at the relevant time. A carbon copy of the report has been produced by this witness and the original had already been sent to the Vigilance Department in the year 1993. 14. P.W. 10 Harihar Choubey is a formal witness who has identified the signature of Amrendra Kumar, Officer-in-charge, Exhibit-1, which bears the signature of the then D.I.G. Shri Narayan Mishra, Exhibit-4/5. He has also identified his own signature on the investigation of the case, which is Exhibit-1/1. Apart from which, he has identified the signatures of R. L. Kanojia, S.P., which is exhibit 4/6 and the signatures of the witnesses on the First Information Report which is Exhibit 9/1. The First Information Report has been recorded by PW 10 which he identified and marked as Exhibit 10. 15. Apart from which, he has identified the signatures of R. L. Kanojia, S.P., which is exhibit 4/6 and the signatures of the witnesses on the First Information Report which is Exhibit 9/1. The First Information Report has been recorded by PW 10 which he identified and marked as Exhibit 10. 15. The next two witnesses i.e. P.W. 11, Shyam Sundar Barnwal and P.W. 12, Deepak Kumar Choudhary are so called independent witnesses of the seizure list. They have both stated that they were forced to sign on the seizure list and that the seizure list was not made in their presence. Both these witnesses have been declared as hostile. 16. P.W. 13 is the Investigating Officer of this case. He merely supports the investigation conducted in this case and the documents regarding pre-trap and post-trap. At paragraph 40 he has stated that that it is true that the review petition was filed by Mohan Prasad in File No. 14/91. He also states that he had received a complaint from Kamini Kumari that the brother of Ramdhyan Prasad who was the D.C.L.R., Patna and had sought voluntary retirement had made a lot of money during his tenure in government service. Apart from the facts mentioned aforesaid, the counsel has not drawn the attention to any special other feature in this case. 17. The counsel appearing on behalf of the appellant contends that the case instituted by Amrendra Prasad is completely false and unbelievable. The manner in which the trap had been set up and the manner in which the post-trap procedure was followed, goes to indicate that in fact the appellant has been dragged in this case, because of the fact he was not succumbing to the pressure of allowing the review application. The case made out by Amrendra Prasad that the other side had offered 2 Kathas of land to Birendra Kumar in lieu of a judgment in their favour is according to the counsel, unbelievable. It is argued that the demand for 2 Kathas of land could not have been replaced by accepting a paltry sum of money or by a demand of a Refrigerator. The second issue raised is that the manner in which the post-trap procedure was followed indicates that the case has been concocted against the appellant for some ulterior motive. It is argued that the demand for 2 Kathas of land could not have been replaced by accepting a paltry sum of money or by a demand of a Refrigerator. The second issue raised is that the manner in which the post-trap procedure was followed indicates that the case has been concocted against the appellant for some ulterior motive. It is submitted that nobody is expected to take bribe at an open place in a overcrowded neighbourhood such as Rajbanshi Nagar. It is submitted that it would be hard to believe that Birendra Kumar preferred to take the bribe amount in front of a stranger. Even if, it is to be accepted that he was familiar with P.W. 7, it is obvious that he could not have been familiar with Ramdhyan Prasad and so to expect him to take bribe in front of an unknown entity is stretching the prosecution case to be seams. It has also been argued that the manner in which the seizure was made and the manner in which the hands of the appellant were dipped in Sodium Carbonate appears to be farfetched. 18. After considering the submissions made on behalf of the appellant, this Court finds that it is rather unbelievable that a man should demand 2 Kathas of land and thereafter he would be satisfied and accept a paltry sum of Rs. 9,500/- as bribe. The role of the Verifier is of equal importance. It becomes doubtful that the Verifier could have heard the demand of bribe, if he was sitting in a separate room, unless the parties were talking in an extremely loud voice which is not the expected behaviour of a person, demanding bribe. These facts coupled together, as well as the claim that the bribe money was paid in the presence of Ramdhyan Prasad a complete stranger lead this Court to the conclusion that the entire case is improbable. Moreover that this Ramdhyan Prasad was not examined as a witness in this case. The reason is obvious which is apparent from the evidence of P.W. 1 Amrendra Prasad who accepts that his brother had gone to jail in a case of defalcation of the society of Jyoti Puram Housing Co-operative Society, Khajpura, Patna in the year 1993. The arrest has been taken place after the occurrence, i.e. perhaps the reason why the prosecution did not produce him as a witness. The arrest has been taken place after the occurrence, i.e. perhaps the reason why the prosecution did not produce him as a witness. Apart from all the aforesaid facts, it would appear that the Court cannot place reliance on the seizure as P.Ws. 11 and 12 have completely denied that the money seized in their presence or that the water had turned pink, when the hands of the appellant were dipped in Sodium Carbonate. Taking all these factors into consideration, this Court finds that the evidence of the witnesses in this case does not inspire the confidence of the Court and that the prosecution has not come with clean hands before the Court. 19. In the result, this appeal is allowed. The order dated 20.12.1999, passed by the Special Judge, Vigilance, Patna in Special Case No. 64/92 is set aside. The appellant is acquitted of the charges levelled against him. He is also discharged from the liabilities of his bail bond furnished earlier in this case.