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2013 DIGILAW 1065 (JHR)

Subhash Chandra Jha v. State of Jharkhand

2013-09-17

D.N.UPADHYAY

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JUDGMENT D.N. Upadhyay, J. - This appeal is directed against the Judgment of conviction and order of sentence dated 8.6.2001 and 12.6.2001 respectively, passed by learned Special Judge (Vigilance), Ranchi in Special Case No. 10/1989 whereby and whereunder, the appellant has been held guilty for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act and has been sentenced to undergo R.I. for two years under Section 7 and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and further fine of Rs. 2,000/- under Section 7 of the Prevention of Corruption Act and in default of payment of aforesaid fine, further imprisonment of three months R.I. and the sentences so passed were directed to run concurrently. 2. The prosecution case in brief is that the complainant Deep Chand Jain has raised allegation against the appellant that he demanded Rs. 1,000/- for appointment of Nazir in an Execution Case No. 203/1981 in which said complainant was making Pairvi on behalf of Smt. Alka Devi Jain who happens to be sister of said Deep Chand Jain. The appellant then was posted as a Bench Clerk in the office of the learned Munsif at Ranchi. It is alleged that the complainant made several approach on several dates for appointment of Nazir so that the Decree granted in favour of Smt. Alka Devi Jain may be executed but the appellant was adjourning the dates and demanded bribe to accommodate the complainant. Lastly the complainant went to the office of Vigilance Department and reported the matter on 30.1.1989. The information given by the complainant was verified by G. Hembram, Sub Inspector of Vigilance who found the allegation to be correct and accordingly, submitted his verification report. 3. On 2.2.1989, the complainant appeared in the office of the Vigilance with five G.C. Notes of denominations of Rs. 20/- each, whereafter the memorandum of aforesaid notes was prepared and signed by the witnesses. Thereafter, phenolphthalein powder was applied on those G.C. Notes and the same were kept in envelope and handed over to the complainant with a direction that he would give those notes on demand to the appellant. On the very same day, a raiding party consisting of 17 persons was organized at the instance of S.P., Vigilance. Thereafter, phenolphthalein powder was applied on those G.C. Notes and the same were kept in envelope and handed over to the complainant with a direction that he would give those notes on demand to the appellant. On the very same day, a raiding party consisting of 17 persons was organized at the instance of S.P., Vigilance. The Sub Inspector of Vigilance namely G. Hembram was directed to remain as a shadow witness with the complainant so that he may give signal after transaction of money takes place between the complainant and the appellant. In the afternoon, at about 1:30 p.m., the raiding party proceeded to the premises of the Civil Court, Ranchi. The complainant was directed to move to the office of the Munsif and G. Hembram, S.I., Vigilance positioned himself to such a vantage point that no sooner the money was accepted by the appellant, he could give signal to other members of the raiding party. The appellant demanded illegal gratification from the complainant upon which he handed over those notes to him to which the appellant put in the right pocket of his trouser. No sooner the transaction took place, the verifier G. Hembram gave signal to the other members of the raiding party who immediately entered into the office and caught hold the appellant disclosing their identity and challenged him that he has accepted illegal gratification from the complainant. Two independent witnesses Bhola Prasad and Sayeed Ahmad were called from the crowd to whom the officer gave their search prior to making search of the appellant. The aforesaid G.C. Notes were recovered from the pocket of the appellant in presence of the witnesses and the members of the raiding party. The numbers of recovered G.C. Notes were compared with the numbers mentioned in the memorandum of G.C. Notes which was prepared earlier and the same were found correct. Thereafter, left and right hand of the appellant were directed to be dipped into a liquid of Sodium Carbonate whereafter, the colour of said solution turned pink. The solution were sealed in two different glass phial. Further, right pocket of the trouser of the appellant was also washed by solution of Sodium Carbonate which also turned pink and sealed in third glass phial. The witnesses and officers present over there signed on the sealed bottles containing those pink solution. The solution were sealed in two different glass phial. Further, right pocket of the trouser of the appellant was also washed by solution of Sodium Carbonate which also turned pink and sealed in third glass phial. The witnesses and officers present over there signed on the sealed bottles containing those pink solution. The aforesaid action of the Vigilance Department was done in presence of Special Magistrate deputed for the raid and he also signed on the seized articles. After performance of formalities and preparation of necessary paper, the accused was finally arrested and forwarded to the judicial custody. 4. The glass bottles in which solutions were seized, were sent for its chemical examination and the report submitted by Forensic Science Laboratory confirmed presence of Phenolphthalein powder and Sodium Carbonate in the former phial in which left and right hands of the appellant were washed. The third phial, which was containing wash of pocket of the full pant of the appellant, was having presence of only Sodium Carbonate. 5. After concluding investigation, charge-sheet against the appellant was filed and the trial proceeded after framing of the charge under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. 6. The prosecution, in order to substantiate the charges, examined altogether 18 witnesses and they have also proved the documents which have been marked Exhibits 1 to 8 Series and material Exhibit (i) to (ii) Series. The appellant also examined one witness in his defence and proved certain documents. 7. The appellant has assailed the impugned Judgment on amongst other, mainly on the ground that the complainant Deep Chand Jain and C. Hembram, S.I., Vigilance who verified the information and submitted verification report and was also present with the complainant as a shadow witness at the time of raid, have not been examined and, therefore, neither the demand made by the appellant nor the transaction which is alleged to have been held between the complainant and the appellant, stood proved. Since the basic point on which conviction in a case under Prevention of Corruption Act can be founded are missing. The evidence of other witnesses is of formal in nature which cannot form basis of conviction in a case under the Prevention of Corruption Act. Since the basic point on which conviction in a case under Prevention of Corruption Act can be founded are missing. The evidence of other witnesses is of formal in nature which cannot form basis of conviction in a case under the Prevention of Corruption Act. The learned counsel has mainly relied on the judgment passed by Hon'ble Supreme court in the case of A. Subair v. State of Kerala, reported in (2009) 3 SCC (Cri) 85. 8. On the other hand, learned counsel appearing for the respondent has opposed the arguments and submitted that the other witnesses have fully supported the prosecution case and they have proved the memorandum of G.C. Notes (Ext.-1), which was prepared before the trap. After recovery of the notes, seizure list was prepared and the aforesaid G.C. Notes were produced before the trial and exhibited as M. Exts. (I) to (I/V). The Full Pant, from which the notes were recovered, marked as M Exhibit-(II). The seizure list was also proved by the officer concerned and the witnesses had also admitted their signature appearing on the seizure list and supported the prosecution case. The prosecution has so proved report of the Forensic Science Laboratory which indicated presence of Phenolphthalein Powder and Sodium Carbonate in the solution in which hands of the appellant were dipped. The prosecution witnesses have also extended cogent explanation for non-examination of the complainant as well as S.I, G. Hembram. 9. PW 10 Alok Bhusan Jain was examined and he has stated that the complainant at that point of time was aged about 90-94 years and he was bed ridden and disable to depose in Court. He has lost his memory also and this witness has proved signature of Deep Chand Jain on the complaint. Likewise, other prosecution witnesses have brought it on record that S.I. of Vigilance G. Hembram died during pendency of this case. There is no merit in this appeal, therefore, the same is liable to be set aside. 10. I have gone through the impugned Judgment, documents proved and marked exhibits and the evidence on record. No doubt the prosecution witnesses except those who have been tendered by the prosecution, have supported case of the prosecution and they have proved the relevant documents like Seizure List, Memorandum of G.C. Notes, Seizure of solution containing hand wash of the appellant, recovery of G.C. Notes and so forth and• so on. No doubt the prosecution witnesses except those who have been tendered by the prosecution, have supported case of the prosecution and they have proved the relevant documents like Seizure List, Memorandum of G.C. Notes, Seizure of solution containing hand wash of the appellant, recovery of G.C. Notes and so forth and• so on. I have also gone through the relevant sections for which the appellant has been charged. Section 7 of the Prevention of Corruption Act, 1988 reads as follows: "7. Public servant taking gratification other than remuneration in respect of an official act.-Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority. corporation or government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine." Section 13(1)(d) and (2) the Prevention of Corruption Act, 1988 is as follows: "13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,- (a)-(c), if he,- (d) (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) – (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine." 11. The core question which has come up before me-whether the evidence available on record in absence of evidence of complainant and the shadow witness G. Hembram, is sufficient to hold, the appellant guilty? Admittedly, complainant Deep Chand Jain has not been examined though he was alive in course of trial. The prosecution has not taken steps to record his evidence on Commission if he was unable to walk at that stage of his age. In the circumstances, the prosecution has failed to bring it on record that illegal gratification was demanded by the appellant from the complainant for giving him favour. The non-examination of complainant has become fatal to the prosecution when S.I. of Vigilance G. Hembram, who had verified the information and followed the complainant as a shadow witness at the time the bribe money was given to the appellant. Thus, neither the contention made by the complainant in his written report has been proved nor the verification report (Ext. 5) submitted by G. Hembram has been proved. At this juncture I would feel it desirable to observe that the contention made by the complainant Deep Chand Jain has not been proved rather PW 10 has simply proved signature of the complainant on the written complaint. The very basis i.e. the written complaint made by Deep Chand Jain on which the episode of trap commenced and ended has not been proved and, therefore, the allegation that the appellant made a demand of Rs. 1,000/- for himself and Rs. 2,000/- for the Presiding Officer concerned as illegal gratification, stood unproved. The further case which the complainant has made out that he had handed over materials Ext. (I) to (I/1V) i.e. Five G.C. Notes of denominations of Rs. 20/-, has not been proved. The sole witness S.I. G. Hembram in whose visibility the complainant is alleged to have handed over the bribe money, has not been examined and, therefore, this aspect that the transaction was held in presence of shadow witness, disappear. The evidence which is available on record on which the learned Special Judge has founded the conviction, is that the appellant was apprehended in his office and five G.C. Notes, each of denomination of Rs. The evidence which is available on record on which the learned Special Judge has founded the conviction, is that the appellant was apprehended in his office and five G.C. Notes, each of denomination of Rs. 20/-, were recovered, hands of the appellant and right pocket of his trouser were washed with solution of Sodium Carbonate after which the colour of solution turned pink, solution so turned pink were seized and sealed and the report of F.S.L. indicated presence of Phenolphthalein powder and Sodium Carbonate. 12. Admittedly, former part of the prosecution case i.e. demand of illegal gratification by the appellant verification of the information by S.I. G. Hembram, witnessing of transaction of bribe money between the complainant and the appellant, have not been proved. In this context, the Judgment cited by the learned counsel appearing for the appellant in the case of A. Subair (supra) appears relevant and befitting to the facts and circumstances involved in this case. Their Lordships have elaborately discussed all the aspects with regard to demand of illegal gratification and acceptance and the trap procedure conducted by the Department. Their Lordships, in paragraph-28 of the said Judgment have observed as under :- "28. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration". 13. Thus, relying on the said Judgment and also considering the fact that the prosecution has failed to prove this fact that illegal gratification was demanded by the appellant from the complainant and no witness has come forward to say that he had verified the facts and the transaction of bribe money had taken place in his presence within his visibility, I find that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. Due to lack of evidence on the point of demand, payment and acceptance of bribe money. I feel inclined to give benefits of doubt to the appellant and accordingly the impugned Judgment of conviction and order of sentence dated 8.6.2001 and 12.6.2001 respectively, passed by Special Judge (Vigilance), Ranchi in Special Case No. 10/1989 is hereby set aside. Due to lack of evidence on the point of demand, payment and acceptance of bribe money. I feel inclined to give benefits of doubt to the appellant and accordingly the impugned Judgment of conviction and order of sentence dated 8.6.2001 and 12.6.2001 respectively, passed by Special Judge (Vigilance), Ranchi in Special Case No. 10/1989 is hereby set aside. The appellant, who is on bail, is discharged from the liability of his bail bond and set at liberty. The appeal stands allowed. Appeal allowed.