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2013 DIGILAW 21 (ALL)

J. C. Lohini v. State of U. P.

2013-01-03

RAMESH SINHA

body2013
Ramesh Sinha, J.— 1. Heard Sri Ravindra Sharma and Sri B.D. Sharma, learned counsel for the appellant and learned AGA for the State. 2. This criminal appeal has been filed against the judgment and order dated 28.2.1986 passed by Special Judge, Rampur in Special Case No.1 of 1982 convicting and sentencing the appellant under Section 161 I.P.C. to one year R.I., under Section 5(1)(d) punishable under Section 5(2) Prevention of Corruption Act and in alternative under Section 5(3-A) of Prevention of Corruption Act for one year R.I. Both the sentences were directed to run concurrently. 3. Brief facts of the case are that on 17.5.1979 the complainant Asghar Ali had gone to the wheat purchase centre of Food Corporation of India situated at Makka Mill, Rampur with 24 quintal wheat of Bhoora for sale to the F.C.I. He was accompanied by Safdar and also Bhoora, Bhoora however, left the centre to get the medicine given to his son who was ill. The complainant had a talk with J.C. Lohani accused, Quality Inspector there for early weighment of the wheat of Bhoora. On this Lohani stated, " Jaldi tulwaney ke liye rupay quintal ke hisaab se mithayee ke deney hongey mujhey", and further asked him that the amount be paid to Puttan Thekedar from whom he will take account in the evening. On this, complainant came to Habeb Ahmad P.W. on the pretext to arrange money and got an application Ext. 1 (Ext. Ka1/5) scribed from him addressed to the District Magistrate and went to the then District Magistrate Km. Kuldeep Saini. The number of the currency notes had been disclosed in the application. The District Magistrate endorsed the order " Action on apl." for Sri Bahadur Singh, Deputy Collector, who thereupon recorded the statement of Sri Asghar (Ext. Ka.2) and saw the currency notes, and made his endorsement, Ext. Ka1/2 thereupon. With this endorsement, the complainant again when to the District Magistrate, who then made endorsement Ext. Ka.1/3 for the S.P. "for further action pl." Then the complainant Asghar and Habeeb Ahmad both went to the S.P. who made his endorsement Ext. Ka ½ for C.O. City Sri Ram Murti Singh. With this endorsement the complainant took the papers to Sri Singh at 2.00 p.m.. Sri Singh had a talk with the complainant Asghar and saw the papers and currency notes Ext. Ka ½ for C.O. City Sri Ram Murti Singh. With this endorsement the complainant took the papers to Sri Singh at 2.00 p.m.. Sri Singh had a talk with the complainant Asghar and saw the papers and currency notes Ext. 3 to 6 to be given in bribe and then started with the complainant Asghar. Sri Singh was in plain clothes. Sri Singh took S.I. Shyam Singh in plain clothes from police station, Civil Lines, then from there reached near the cold-storage of Ishrat Mian at the turn of the road going towards the purchase centre and from there he took Ram Pal and Sundar Lal witnesses. Sri Singh got the currency notes Ext. 3 to 6 presented by the complainant before the witnesses and got their number compared with these recorded in the application, Ext. Ka 1/5 and he statement Ext. Ka.2. The same tallied. About this, he prepared a memo Ext. Ka3. there. The currency notes were given in the Supurdgi of complainant Asghar. After that the Dy. S.P., the said S.I. and the said witnessesproceeded on foot behind Asghar Ali complainant, towards the purchase centre. The complainant Asghar ali met Puttan accused and told him, " Main rupyon ka intezam kar laya hoon", whereupon Puttan said, Mainey tumharey 24 bori gahoon tulwa diye hain, jo 24 rupay tum se rishwat ke taiy huway theiy mujh ko dedo, main Lohani Sahab ko de donga". On this Asghar complainant paid the aforesaid currency notes to Puttan accused, who received the same in his right hand. On this Sri Ram Murti Singh caught hold of Puttan's right handand disclosing his identity and telling that he has taken this money as bribe arrested him. He recovered the aforesaid currency notes Ext. 3 to 6 from the right hand of Puttan accused and compared them with the numbers noted in the memo Ext. Ka.3 and found them to be correct. He then sealed the currency notes in an envelop. He also took a search of the persons of Puttan accused and found currency notes amounting to Rs. 324 and a certificate Ext. 8 thereon. He prepared memo Ext. Ka5 about the transaction and gave its copy to Puttan accused. Then he took this accused and the recovered property to the police station and lodged them there at 6.10 P.M. He dictated his FIR, Ext. Ka.6 to the Head-Moharrir. 324 and a certificate Ext. 8 thereon. He prepared memo Ext. Ka5 about the transaction and gave its copy to Puttan accused. Then he took this accused and the recovered property to the police station and lodged them there at 6.10 P.M. He dictated his FIR, Ext. Ka.6 to the Head-Moharrir. A case was registered and an entry was made in the G.D. at serial No. 37 whose copy was Ext. Ka7. 4. The investigation of this case was made by Sri S.P. Singh, C.O. Shahabad at the relevant time by the orders of the then S.P. Sri R.S. Pushkar dated 19.5.1979. He interrogated Sri Ram Murti Singh, Dy S.P. on 22.5.1979, inspected the scene of occurrence, and prepared site plan Ext. Ka16. On 30.5.1979 he went to the purchase centre and interrogated various officials of the Food Corporation of India. On 31.5.1979 he learnt tat the accused Puttan has been enlarged on bail by the Court, whereupon he interrogated the said accused. On 1.6.1979 he learnt that J.C. Lohani accused had surrendered in the Court and has been enlarged on bail, whereupon he interrogated Sri Lohani on 5.6.1979. On 6.6.1979 he interrogated Sundar Lal P.W.3 on 9.6.1979 he interrogated Ram Pal Singh. On 15.6.1979 he interrogated Shyam Singh S.I. and Mohan Chand Head Constable. On 27.6.1979 he interrogated the then District Magistrate Km. Kuldeep Saini, S.P. Sri R.S. Pushkar, Sri Habeeb Ahmad and Sharafat Ali. On 5.7.1979 he interrogated Asghar Ali and Safdar Ali. On 6.7.1979 he interrogated Bhoora. On 19.7.1979 he interrogated the clerk of Mandi Samiti Rampur. ON 29.9.1979 he interrogated Sri Bhadur Singh, Deputy Collector and then submitted charge sheet, Ext. Ka.17 against both the accused. Sanction for prosecution of J.C. Lohani was given by Sri M.S. Yadav who was Senior Regional Manager, F.C.I. Regional Office, Lucknow. The sanction is Ext. Ka.14. 5. After the cognizance was taken, the accused were summoned and were charged as aforesaid by learned predecessor Sri R.N. Agarwal. Both the accused pleaded not guilty to the same. 6. At the trial the prosecution examined Sri Ram Murti Singh Dy. S.P. P.W.1, Asghar Ali P.W.2, Sundar Lal P.W.3, Safdar Ali P.W.4, Bhoora P.W.5, Habeeb Ahmad P.W.6, Sri M.S. Yadav P.W.7, S.P. Singh P.W.8 & Azeem Haider P.W.9. 7. The accused persons did not lead any evidence in defence. 8. The prosecution witnesses Asghar Ali P.W2 is the complainant. 6. At the trial the prosecution examined Sri Ram Murti Singh Dy. S.P. P.W.1, Asghar Ali P.W.2, Sundar Lal P.W.3, Safdar Ali P.W.4, Bhoora P.W.5, Habeeb Ahmad P.W.6, Sri M.S. Yadav P.W.7, S.P. Singh P.W.8 & Azeem Haider P.W.9. 7. The accused persons did not lead any evidence in defence. 8. The prosecution witnesses Asghar Ali P.W2 is the complainant. He has narrated the entire prosecution story from beginning to the end. In particular he has testified about the taking of wheat of Bhoora to the purchase centre, the talk with J.C. Lohani accused, the demand of bribe by this accused, his going to the pretext of arranging money, the scribing of the application Ex. 1 ( Ext. Ka 1/5) by Habeeb Ahmad P.W., the noting of the numbers of the currency notes Ext. 3 to 6 therein, the meeting with the District Magistrate, the going to the Deputy Collector with the endorsement of the District Magistrate, the recording of his statement by the Deputy Collector, the going to the District Magistrate, the going from there to the S.P. with the endorsement of the District Magistraete endorsement to the C.O. City by the S.P., the going to C.O. City Ram Murti Singh, the conversation with Ram Murti Singh, the departure, the taking of police in plain clothes from police station, Civil Lines, the taking of witnesses from nearthe cold storage of Ishrat Mianat about 2.30 p.m., the conversation wit the witnesses, the showing of the currency note and the preparation of memo Ext. Ka3 about it, the going to the purchase centre, the payment of the currency notes to Puttan, the arrest and the ecovery. Sri Ram Murti Singh, Dy. S.P. has testified to the prosecution story from the time of his being contacted on 17.5.1979 at 2.00 p.m. by Asghar Ali complainant and Habeeb Ahmad scribe up to the end. He has proved the various endorsements on the application of the complainant and has also testified to the taking of S.I. Shyam Singh from police station civil lines, in plain clothes, the taking of public witnesses from near the cold storae of Ishrat Mian, the showing of the currency notes before th witnesses and the preparation of the memo Ext. Ka3 about the same, the payment and the acceptance of the bribe money, the arrest and the recovery. Ka3 about the same, the payment and the acceptance of the bribe money, the arrest and the recovery. Sundar Lal PW34 is a witnesses of the payment and acceptance of the bribe money, the arrest and the recovery. Safdar Ali P.W.4 testified to his accompanying the complainant Asghar Ali and Bhoora to the purchase Centre, the demand of bribe by J.C. Lohani accused and his instruction to make payment to Putan accused on his behalf. Bhoora P.W5 is the person whose wheat was taken to purchase centre and in respect of which the payment of the bribe was demanded on the prosecution case. Bhora has turned hostile. Habeeb Ahmad P.W. 6 is the scribe of the written complaint Ext. Ka1/5. He has accompanied the complainant Asghar ali when he went to the District Magistrate, the Deputy Collctor and the S.P. M.S. Yadav P.W.7 is the removing authority of J.C. Lohani accused. He has proved the sanction Ext. Ka17. Sri s.P. Singh, P.W.8 is the Investigating Officer. He has testified to the investigation done by him and has proved the charge sheet against the accused persons. Sri Azim Haideer P.W.9 Assistant Manager, Account in F.C.I. Moradabad, has filed purchase-cum-payment voucher and proved the purchase voucher Ext. Ka18 to be in hand writing of J.C. Lohani accused and the payment voucher of its back Ext. 18/1 to be in the hand writing of Sri N.U. Khan pay-point in-charge. It showed that the purchase of the wheat of Bhoora of 24 quintal 15 Kgs. was made at the centre of the date of occurrence and its payment was made on 18.5.1979 to Bhoora through cheques. In his statement under Section 313 Cr.P.C. J.C. Lohani accused made a total denial in reply to the question about the demand of bribe, the complaint by Asghar Ali P.W.2 and proceedings relating thereto, culminating in the tender of bribe too and its acceptance by Puttan accused, the arrest of Puttan and the recovery from him. He however, admitted that the purchase voucher Ext. Ka18 was in his hand writing and that the payment voucher was in the hand-writing of Sri N.U. Khan aforesaid. In reply to the question as to why the witnesses deposed against him, he stated as follows: @ Hindi @ 9. In his statement under Section 313 Cr.P.C. Puttan accused made a denial of the prosecution story suggested to him. Ka18 was in his hand writing and that the payment voucher was in the hand-writing of Sri N.U. Khan aforesaid. In reply to the question as to why the witnesses deposed against him, he stated as follows: @ Hindi @ 9. In his statement under Section 313 Cr.P.C. Puttan accused made a denial of the prosecution story suggested to him. He claimed that he was not Thekedar at the centre, but was Mate of labour to look after. In reply to the question as to why the witnesses deposed against him. He stated as follows: @ Hindi @ 10. It has been contended by the learned counsel for the appellant that the appellant J.C. Lohani was working as Quality Inspector at Maize Mill Purchase Centre, Food Corporation of India, Rampur and he was falsely implicated in the present case on the complaint of Habib Ahmad P.W.6 as he used to bring his own men at the Centre for weighing the wheat and the appellant refused to weigh the wheat of the said persons because the said persons did not have khasra and khatauni with them and according to the rules and regulations the wheat. 11. Only of such persons was to be weighed who were cultivators (Kastkar) and on account of the said fact the Habib Ahmad in collusion with the police had falsely implicated him in the present case. It was further submitted that the wheat in question belonged to P.W.5 Bhoora. P.W.2 Asghar Ali had gone with Habib Ahmad to get the said wheat weighed at the Centre as per prosecution story but Bhoora who is cousin brother of Asghar Ali did not support the allegations levelled against the appellant before the Trial Court and he turned hostile. It was further pointed out that Bhoora whose wheat was to be weighed at the Centre, had received the cheque of the wheat which he got weighed at the Centre on the next day and had made no complaint against the appellant. It was further pointed out that the evidence of P.W.2 Asghar Ali who is cousin brother of P.W.5 Bhoora before the Trial Court did not prove to be trustworthy as he used to work under co-accused Puttan who was a contractor at the FCI Centre and it has come in his evidence that Asghar Ali had taken some money i.e. Rs. 40/- from the co-accused Puttan who was working as Mate at a place in FCI namely, Narhar Narampur as Asghar Ali was in need of money which the co-accused had given to him and Rs.24/- was given back to co-accused Puttan by Asghar Ali and thereafter co-accused Puttan was called at the police station through a constable where the Dy. S.P. asked him about the dispute between the two and at the police station Asghar Ali and Habeeb Ahmad were present and thereafter the co-accused Puttan told the Dy. S.P. about all the facts but he was locked at the said police station and the money which he was carrying at the time, was also taken away and deposited at the police station. 12. In order to show uncredibility of P.W.2 Asghar Ali, relevant extracts of his evidence is quoted below: @ Hindi @ 13. It has been further submitted that the manner in which the illegal gratification which was being demanded by the appellant is highly improbable and beyond imagination as admittedly no amount was given to the appellant or he was caught in trap. He further pointed that Asghar Ali has no real brother. PW2 Bhoora in his evidence has specifically stated that he treated Asghar Ali to be a brother because he belonged to the same village. 14. He has further pointed out from the evidence of P.W.2 showing the conduct of the appellant in accepting illegal gratification in order to show that a person who has demanded the same would not behave in such a manner. The said evidence of P.W.2 Asghar Ali is quoted here-i-n-below" @ Hindi @ 15. It was further pointed from the evidence of P.W.2 Asghar Ali that the cheque which was to be given to Bhoora P.W.5 whose wheat was weighed at the FCI Centre, was given to Asghar Ali on the same day and he handed it over to Bhoora the said cheque, whereas PW2 Bhoora has categorically stated in his evidence before the trial Court that he got the cheque on the next day. Thus, the whole prosecution story against the appellant appears to be fabricated and concocted one and no reliance can be placed on its and the conviction and sentence of the appellant should be set aside by this Court. 16. Thus, the whole prosecution story against the appellant appears to be fabricated and concocted one and no reliance can be placed on its and the conviction and sentence of the appellant should be set aside by this Court. 16. Leaned counsel for the appellant has further argued that the appellant was falsely implicated by P.W.2 Asghar Ali at the instance of P.W.6 Habeeb Ahmad who was inimical to the appellant. In this respect, he has drawn the attention of the statement of Asghar Ali PW2 before the trial Court. The same is quoted below : @ Hindi @ 17. It was further pointed out from evidence of P.W.2 that he was not present at the time when the wheat of Bhoora was being weighed at the FCI Centre, hence, the said fact that the money was demanded by the appellant through contractor Puttan is also belied from the evidence of P.W.2 itself. 18. It was also pointed out from the cross-examination of P.W.2 Asghar Ali that he used to work as labourer under the contractor Puttan at the F.C.I. Centre, who was working as Mate and contractor used to pay money to the labourers and some times labourers used to take money in advance from Puttan and they got the same deducted from their payments when they used to receive money. 19. Thus, from the said evidence of P.W.2 it is apparent that he used to work under the contractor Puttan at the F.C.I. Centre and P.W.2 used to take money from him in advance and returned the same when he receive the money from FCI Centre and it was the said money of Rs 24/- which was being handed over by P.W.2 to Puttan who was trapped by the trap party and a false allegation against the appellant that he was demanding the money through the contractor Punan has been levelled. He has submitted that Puttan co-accused contractor has already been acquitted by the trial Court giving the benefit of doubt, hence under these circumstances the allegation of the prosecution against the appellant appears to be highly improbable and suspicious and the conviction of the appellant on the basis of evidence of P.W.2 and other prosecution witnesses who are the members of trap party is illegal by the trial Court, hence, the same should be set aside by this Court. 20. 20. Learned AGA on the other hand has tried to justify the conviction and sentence of the appellant by the trial Court but could not dispute the fact that the appellant was not caught by the trap party taking illegal gratification from the PW2 AsgarAli. Moreover, that the co-accused Puttan who is said to have caught by the trap party taking Rs.24/- from P.W.2 Asghar Ali has already been acquitted by the trial Court giving benefit of doubt. 21. Considered the submissions advanced by the learned counsel for the parties. 22. From the perusal of the entire material on record, it is admitted case of the prosecution that the appellant who was posted as Quality Inspector at the FCI Centre at the Maize Mill where Bhoora P.W.5 had come to weigh his wheat did not say before the trial court that any such money was demanded from him for getting his wheat weighed at the FCI Centre by appellant and he on the other hand stated that he got the cheque for his wheat to be weighed from the FCI Centre on the next day and further he did not support the prosecution story as set up by the trap party at the instance of P.W.6 Habeeb Ahmad who was accompanied by P.W.2 Asghar Ali for laying the trap against co- accused Puttan and the appellant. 23. From the evidence of P.W.2 Asghar Ali, it transpires that his evidence regarding the allegations made against the appellant and co-accused Puttan does not prove to be trustworthy as has been pointed out by the counsel for the appellant showing the various instances from his evidence in which the money was offered for being paid to the appellant for weighing the wheat. The co-accused Puttan who was caught in the trap by the trap party with Rs.24/- was acquitted by the trial Court giving benefit of doubt as the evidence of prosecution witnesses did not transpire confidence against him and conviction of the appellant on the basis of the same evidence does not sound to be reasonable and correct as the appellant's false implication in the present case cannot be ruled out as he has specifically stated that P.W.6 Habeeb Ahmad was highly inimical to him and Habeeb Ahmad in collusion with P.W.2 Asghar Ali who was having animosity with co-accused Puttan had concocted the prosecution story and had also influenced the police personnel for laying down a trap against the appellant and co-accused Puttan which was not proved by the prosecution beyond all reasonable doubt. Moreover, when co-accused Puttan had already been acquitted by the trial Court hence the conviction and sentence of the appellant appears to be against the evidence on record, hence is liable to be set aside and is hereby set aside. 24. The judgment and order dated 28.2.1986 passed by Special Judge, Rampur in Special Case No.1 of 1982 is hereby set aside. 25. The appellant is on bail and need not to surrender. His bail bond and sureties are discharged. 26. The criminal appeal stands allowed. _____________