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2012 DIGILAW 1309 (PAT)

Suryadeo Sharma v. State of Bihar

2012-09-13

SHEEMA ALI KHAN

body2012
SHEEMA ALI KHAN, J.:–The appellant has been held guilty and sentenced to undergo rigorous imprisonment for one year and to pay a sum of Rs. 10,000/- as fine for offences under Section 7 read with 5 (i) (d) read with 3 (2) of the Prevention of Corruption Act. 2. The appellant worked as a Junior Engineer in the Electricity Department at Pachrukhi in Siwan. The First Information Report has been instituted by PW 7 Ramanand Prasad on the basis of a complaint received from Muni Mishra, father of Krishna Kant Mishra. According to the complaint filed on 07.10.1982, it is said that the son of the complainant Krishna Kant Mishra is the Proprietor of Krishi Yantra Udyog where he has installed a machine of 5 HP. It is alleged that the appellant was demanding bribe and harassing his son for utilizing excessive power and maintaining a defective meter. On receipt of the said complaint, which is Exhibit-4, the verifier Bhagwan Prasad was appointed, who accompanied Krishna Kant Mishra and went to the residence of the appellant. Bhagwan Prasad was introduced as a friend and thereafter the parties began to talk. The verifier alleges that the appellant threatened to disconnect the electrical line, if Krishna Kant Mishra did not pay the bribe amount. It is said that Krishan Kant Mishra paid him a sum of Rs. 40/- and told him to adjust the amount in the electrical bill and thereafter made a demand of Rs. 100/- as bribe to be paid to him on 03.12.1982. On 03.12.1982, a raiding team was constituted. Krishna Kant Mishra had given Rs. 100/- consisting of one denomination Rs. 50, two denomination of Rs. 20 and one denomination of Rs. 10 to the Inspector of Vigilance, who noted down the numbers. According to the prosecution case, the raiding team met the appellant at his house and thereafter the appellant was called in the Office of the Sub Divisional Officer, where the money was paid to the appellant, seizure list prepared and the appellant was taken into custody. 3. The defence of the appellant is that it is a completely false case and that the verification report and subsequent trap and seizure are nothing but a piece of table work. 3. The defence of the appellant is that it is a completely false case and that the verification report and subsequent trap and seizure are nothing but a piece of table work. According to the defence as stated by the appellant while being examined under Section 313 of the Code of Criminal Procedure is that Krishna Kant Mishra owed money to the Electricity Board. His meter was tampered and that the appellant had filed a complaint against PW 6 before the Sub Divisional Officer much before the occurrence on 05.03.1982 (Annexure-G/11), 26.05.1982 (Annexure-G/7) and 15.10.2011 (Annexure-G/10). All these complaints specifically speak about the money owed to the Department. The defence case further is that the Sub Divisional Officer was friendly (sambandhi) of the appellant and as such, he favoured them. It has also come on record that the Sub Divisional Officer inspected the premises of PW 6 and found that the meter was working in a proper condition and recorded 1437 units on 08.08.1982. This document has been produced on behalf of the prosecution and marked as Exhibit-5. The defence of the appellant regarding this document is that the previous inspection report of the meter which is Exhibit-F indicates that the meter reading is 1413 on 28.06.1982. It is submitted that it is not possible that only 24 units could have been consumed in the intervening period of two months. Exhibit-F is proved by DW 3. The cross-examination of DW 3 does not indicate that Exhibit-F should be disbelieved by the Court. Virtually, all the witnesses have, to some extent, admitted that the Junior Engineer was Incharge of collecting the electricity dues and that a number of villagers were in the habit of making part payment of the dues. 4. In this context, the Court will examine whether the prosecution has been able to prove its case on three counts; (a) that the money seized was bribe money, (b) that the seizure was made in the manner as provided under the law, and (c) whether the post-trap procedure has been followed. 5. Altogether, 11 witnesses have been examined in this case on behalf of the prosecution. PWs 1, 3, 5 and 6 are the part of the Raiding Team, whereas PW 2 is the Verifier and also a member of the Raiding Team. 5. Altogether, 11 witnesses have been examined in this case on behalf of the prosecution. PWs 1, 3, 5 and 6 are the part of the Raiding Team, whereas PW 2 is the Verifier and also a member of the Raiding Team. The complainant Munni Mishra is PW 4 and the son of the complainant Krishna Kant Mishra has been examined as PW 6. 6. At the outset, this Court finds that the evidence of the witnesses, both, the trap witnesses, the verifier and Krishna Kant Mishra does not disclose that before conducting the trap and offering the bribe money to the appellant, the notes were treated with Phenolphthalein powder. As a result of this lacuna in the procedure, the prosecution lost the opportunity of placing the hands of the appellant in water to determine whether the appellant had received the so–called tainted money. In the opinion of this Court, the fact that the raid was conducted without following one of the essential procedures in conducting the raid would lead this Court to the conclusion that the prosecution would not be able to establish that the money recovered was the ‘tainted money’. 7. In the present case, there are several other circumstances to indicate that the prosecution has not been able to prove its case. The first circumstance is that a case has been made out by PW 2 in the verification report that a demand of Rs. 100/- was made and Rs. 40/- was paid as an advance against the dues of the appellant, whereas the witnesses such as PW 4 at paragraph 14 and PW 6 at paragraph 10 have stated that there was a demand of Rs. 150/-. The documentary evidence is quite contrary to this oral statement made by the witnesses. 8. The next lacuna of the prosecution case would be with regard to the place of occurrence. According to PW 1, the place of occurrence i.e. the place where the bribe was offered and received is the house of the Junior Engineer, whereas according to PWs 2, 3 and 6, it is the outside the Office of the Sub Divisional Officer. PW 6 Krishna Kant Mishra has stated that the Sub Divisional Officer had called him to the Office of the Sub Divisional Officer. PW 6 Krishna Kant Mishra has stated that the Sub Divisional Officer had called him to the Office of the Sub Divisional Officer. It is stated that the trap was set at the Office of the Sub Divisional Officer and seizure list was prepared at that place. Even with respect to the preparation of the seizure list, it may be noted that PW 1 states that the seizure list was prepared in the house, whereas PWs 5, 7 and 11 who are witnesses to the seizure list have not supported the statement of PW 1. In fact, it has been stated by PW 7, the complainant, that PW 1 declined to sign the seizure list. He explains his statement at paragraph 52 by stating that PW 1 had not become hostile, rather he did not sign because he did not want to sign on a false document which speaks volumes about the conduct of the prosecution. It is also accepted that there are no independent witnesses who has signed the seizure list, which would be apparent not only from the evidence of the witnesses but also from Exhibit-2. Exhibit-2 would also disclose that apart from the so-called bribe amount, a sum of Rs. 334, Rs. 1200.30 from the outside pocket, Rs. 100/- from the left pocket, Rs. 10/- from the pant pocket, seizure register, issue vouchers and requisitions were also recovered from the possession of the appellant. This fact supports the case of the defence that the Junior Engineer went from house to house to collect electricity dues. There being no procedure adopted by treating the bribe money with phenolphthalein powder, it cannot be concluded that the money recovered was the bribe amount. It could have been part of the dues pending against the complainant or it would be part of the money collected by the appellant. 9. I may also point out that apart from the procedural aspect of this case, the very initiation of the demand has not been proved by the prosecution. It is that specific case of Munni Mishra that he learnt from someone (KHABAR BHIJWAI GAYEE THI) that the appellant had demanded a bribe. The name of the person who had given the message for the said demand has no where been disclosed in the entire evidence. It is that specific case of Munni Mishra that he learnt from someone (KHABAR BHIJWAI GAYEE THI) that the appellant had demanded a bribe. The name of the person who had given the message for the said demand has no where been disclosed in the entire evidence. This Court, therefore, finds that the prosecution has failed to prove its case on all three counts: (a) that the money recovered was bribe money for the reason that it has not been mentioned in the seizure list as bribe money, it was not treated with Phenolphthalein powder, that the manner in which the demand was made has not been proved by the prosecution, (b) that the seizure list has to be discarded on the ground that there are no independent witness to support the seizure and on the ground that while preparing the seizure list, the concerned authority i.e. Deputy Superintendent of Police, C.I.D. has not mentioned that he had recovered the bribe amount. The notes were not treated with phenolphthalein powder which also raises certain doubts with respect to the allegations levelled against the appellant, apart from which, the appellant has brought on record a number of documents to indicate that Krishna Kant Mishra had not paid his electricity bills and as such, he has filed the criminal case as well as a title suit which was instituted in the year 1983 praying therein that the Court should set aside the demand of payment of electricity dues. 10. On the basis of the facts aforesaid, this Court does not find the appellant guilty and accordingly, he is acquitted of the charges levelled against him. He is also discharged from the liabilities of the bail bonds furnished earlier in this case. 11. In the result, this appeal is allowed.